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+Exhibit 10.1
+
+EXECUTION VERSION
+
+CONFIDENTIAL – Subject to FRE 408
+
+THIS RESTRUCTURING SUPPORT AGREEMENT DOES NOT CONSTITUTE (NOR SHALL IT BE
+CONSTRUED AS) AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF
+ACCEPTANCES OR REJECTIONS AS TO ANY PLAN OF REORGANIZATION. ANY SUCH OFFER OR
+SOLICITATION WILL COMPLY WITH ALL APPLICABLE PROVISIONS OF SECURITIES,
+BANKRUPTCY, AND/OR OTHER APPLICABLE LAWS.
+
+ 
+
+ 
+
+ 
+
+RESTRUCTURING SUPPORT AGREEMENT
+
+AMONG
+
+ENDOLOGIX, INC.
+
+AND
+
+THE SUPPORTING LENDERS IDENTIFIED HEREIN
+
+DATED AS OF JULY 5, 2020
+
+ 
+
+ 
+
+ 
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+ 
+
+         Page   ARTICLE I        DEFINITIONS       
+
+Section 1.1
+
+ 
+
+Defined Terms
+
+     6  
+
+Section 1.2
+
+ 
+
+Terms Defined Elsewhere in this Agreement
+
+     15   ARTICLE II        DEFINITIVE DOCUMENTS       
+
+Section 2.1
+
+ 
+
+Incorporation of Exhibits and Schedules
+
+     17  
+
+Section 2.2
+
+ 
+
+Definitive Documents
+
+     17   ARTICLE III        COMMITMENTS OF THE SUPPORTING LENDERS       
+
+Section 3.1
+
+ 
+
+Support of Restructuring
+
+     17  
+
+Section 3.2
+
+ 
+
+Rights of Supporting Lenders Unaffected
+
+     19  
+
+Section 3.3
+
+ 
+
+Transfer of Claims
+
+     20   ARTICLE IV        COMMITMENTS OF THE COMPANY       
+
+Section 4.1
+
+ 
+
+Commitments of the Company
+
+     20  
+
+Section 4.2
+
+ 
+
+Rights of the Debtors Unaffected
+
+     23   ARTICLE V        REPRESENTATIONS AND WARRANTIES OF THE COMPANY       
+
+Section 5.1
+
+ 
+
+Qualification, Organization, Subsidiaries, etc.
+
+     24  
+
+Section 5.2
+
+ 
+
+Capitalization
+
+     24  
+
+Section 5.3
+
+ 
+
+Corporate Authority
+
+     25  
+
+Section 5.4
+
+ 
+
+Consents and Approvals
+
+     26  
+
+Section 5.5
+
+ 
+
+No Violations
+
+     26  
+
+Section 5.6
+
+ 
+
+SEC Filings; Financial Statements
+
+     27  
+
+Section 5.7
+
+ 
+
+No Undisclosed Liabilities
+
+     28  
+
+Section 5.8
+
+ 
+
+Absence of Certain Changes
+
+     28  
+
+Section 5.9
+
+ 
+
+Brokers or Finders
+
+     29  
+
+Section 5.10
+
+ 
+
+Litigation
+
+     29  
+
+Section 5.11
+
+ 
+
+Intellectual Property
+
+     30  
+
+ 
+
+i
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.12
+
+ 
+
+Data Privacy and Cybersecurity; IT Assets
+
+     31  
+
+Section 5.13
+
+ 
+
+Real Property Leases
+
+     32  
+
+Section 5.14
+
+ 
+
+Material Contracts
+
+     32  
+
+Section 5.15
+
+ 
+
+Compliance with Laws; Anticorruption; Permits; Trade Compliance
+
+     35  
+
+Section 5.16
+
+ 
+
+Employee Benefit Matters
+
+     37  
+
+Section 5.17
+
+ 
+
+Labor Matters
+
+     38  
+
+Section 5.18
+
+ 
+
+Environmental Matters
+
+     39  
+
+Section 5.19
+
+ 
+
+FDA and Related Regulatory Matters
+
+     39  
+
+Section 5.20
+
+ 
+
+Taxes
+
+     42  
+
+Section 5.21
+
+ 
+
+Insurance
+
+     43  
+
+Section 5.22
+
+ 
+
+No Other Representations; No Reliance
+
+     43   ARTICLE VI        REPRESENTATIONS AND WARRANTIES OF THE SUPPORTING
+LENDERS       
+
+Section 6.1
+
+ 
+
+Qualification; Organization
+
+     44  
+
+Section 6.2
+
+ 
+
+Corporate Authority
+
+     44  
+
+Section 6.3
+
+ 
+
+Consents and Approvals
+
+     45  
+
+Section 6.4
+
+ 
+
+No Violations
+
+     45  
+
+Section 6.5
+
+ 
+
+Brokers
+
+     45  
+
+Section 6.6
+
+ 
+
+Ownership of Claims
+
+     46  
+
+Section 6.7
+
+ 
+
+No Other Representations; No Reliance
+
+     46   ARTICLE VII        COVENANTS       
+
+Section 7.1
+
+ 
+
+Interim Operations
+
+     47  
+
+Section 7.2
+
+ 
+
+Access and Information
+
+     50  
+
+Section 7.3
+
+ 
+
+Approvals and Consents; Cooperation; Notification
+
+     50  
+
+Section 7.4
+
+ 
+
+Employee Communications
+
+     51  
+
+Section 7.5
+
+ 
+
+Alternative Transaction Procedures
+
+     51  
+
+Section 7.6
+
+ 
+
+Insurance
+
+     52   ARTICLE VIII        CONDITIONS PRECEDENT       
+
+Section 8.1
+
+ 
+
+Conditions to Obligation of the Company and the Supporting Lenders
+
+     53  
+
+Section 8.2
+
+ 
+
+Conditions to Obligation of the Company
+
+     53  
+
+Section 8.3
+
+ 
+
+Conditions to Obligation of the Supporting Lenders
+
+     54  
+
+Section 8.4
+
+ 
+
+Frustration of Conditions
+
+     55  
+
+ 
+
+ii
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE IX        TERMINATION       
+
+Section 9.1
+
+ 
+
+Termination
+
+     55  
+
+Section 9.2
+
+ 
+
+Termination Upon Effective Date or Outside Date
+
+     58  
+
+Section 9.3
+
+ 
+
+Effect of Termination
+
+     59   ARTICLE X        GENERAL PROVISIONS       
+
+Section 10.1
+
+ 
+
+Agreement Effective Time
+
+     60  
+
+Section 10.2
+
+ 
+
+No Solicitation
+
+     60  
+
+Section 10.3
+
+ 
+
+Purpose of Agreement
+
+     60  
+
+Section 10.4
+
+ 
+
+Admissibility of this Agreement
+
+     61  
+
+Section 10.5
+
+ 
+
+Several, Not Joint Obligations
+
+     61  
+
+Section 10.6
+
+ 
+
+Survival
+
+     61  
+
+Section 10.7
+
+ 
+
+Public Announcements
+
+     61  
+
+Section 10.8
+
+ 
+
+Notices
+
+     61  
+
+Section 10.9
+
+ 
+
+Descriptive Headings; Interpretative Provisions
+
+     62  
+
+Section 10.10
+
+ 
+
+Representation by Counsel; No Strict Construction
+
+     63  
+
+Section 10.11
+
+ 
+
+Entire Agreement
+
+     63  
+
+Section 10.12
+
+ 
+
+Governing Law and Venue; Waiver of Jury Trial
+
+     63  
+
+Section 10.13
+
+ 
+
+Transaction Expenses
+
+     64  
+
+Section 10.14
+
+ 
+
+Amendments and Waivers
+
+     64  
+
+Section 10.15
+
+ 
+
+Parties, Succession and Assignment
+
+     65  
+
+Section 10.16
+
+ 
+
+No Waiver of Participation and Reservation of Right
+
+     65  
+
+Section 10.17
+
+ 
+
+No Third-Party Beneficiaries
+
+     66  
+
+Section 10.18
+
+ 
+
+Counterparts; Effectiveness
+
+     66  
+
+Section 10.19
+
+ 
+
+Severability
+
+     66  
+
+Section 10.20
+
+ 
+
+Specific Performance
+
+     66  
+
+Section 10.21
+
+ 
+
+Conflicts
+
+     66  
+
+Schedule 1 Company Subsidiaries
+
+Exhibit A Restructuring Term Sheet
+
+Exhibit B Interim DIP Order
+
+Exhibit C Form of Transfer Joinder
+
+Exhibit D Milestones
+
+ 
+
+iii
+
+
+
+--------------------------------------------------------------------------------
+
+RESTRUCTURING SUPPORT AGREEMENT
+
+This RESTRUCTURING SUPPORT AGREEMENT (as amended, modified or supplemented from
+time to time in accordance with the terms hereof, and including all exhibits,
+annexes, schedules and attachments hereto, this “Agreement”), dated as of
+July 5, 2020, is entered into by and among Endologix, Inc., a Delaware
+corporation (“Endologix” or the “Company”), on behalf of itself and its
+Subsidiaries listed on Schedule 1 hereto (each, a “Company Subsidiary” and
+collectively, the “Company Subsidiaries,” and, together with Endologix, each a
+“Debtor,” and collectively, the “Debtors”), Deerfield Partners, L.P. (“DPLP”),
+Deerfield Private Design Fund III, L.P. (“PDIII”) and Deerfield Private Design
+Fund IV, L.P. (“PDIV” or “Term Loan Agent”, and together with DPLP and PDIII,
+the “Supporting Lenders”), the lenders pursuant to that certain Amended and
+Restated Facility Agreement, dated as of August 9, 2018 (as amended,
+supplemented, or otherwise modified from time to time in accordance with the
+terms thereof, the “Prepetition Facility Agreement”), by and among the Term Loan
+Agent, as agent, and the Supporting Lenders, as lenders, the lenders pursuant to
+that certain Credit Agreement, dated as of August 9, 2018 (as amended,
+supplemented, or otherwise modified from time to time in accordance with the
+terms thereof, the “Prepetition Credit Agreement”), by and among Deerfield ELGX
+Revolver, LLC, as agent (in such capacity, the “ABL Agent”, and together with
+the Term Loan Agent the “Prepetition Agents”), and the Supporting Lenders, as
+lenders (the “Prepetition Lenders”). The Company and the Supporting Lenders are
+each referred to herein as a “Party” and collectively, the “Parties.”
+Capitalized terms used herein but not otherwise defined have the meanings
+ascribed to them in the Restructuring Term Sheet.
+
+RECITALS
+
+WHEREAS, the Debtors are engaged in the business of, directly or indirectly,
+researching, developing, manufacturing, marketing and selling medical devices
+for the treatment of aortic disorders (including abdominal aortic aneurysms
+(“AAA”)) and other products that are as of the date of this Agreement being
+researched, developed, tested (including through clinical trials),
+commercialized, manufactured, stored, sold, licensed, or distributed by or on
+behalf of any of the Debtors, including (i) the AFX® Endovascular AAA System,
+(ii) the Ovation® Abdominal Stent Graft System (including the Ovation Alto®
+Abdominal Stent Graft System) and (iii) the Nellix® Endovascular Aneurysm
+Sealing System (such business, the “Business”; and such products, including
+(i)-(v) and any other medical devices, materials, methods, processes, materials,
+products or therapies, that are distributed by the Company, including those that
+have been acquired, or have been or are under development, manufacture,
+distribution or commercialization, by or on behalf of any of the Debtors
+(including any Affiliate thereof), taken together, the “Products”);
+
+WHEREAS, the Company and the ABL Agent entered into that certain Forbearance
+Agreement, dated May 26, 2020 (as amended from time to time, the “Term Loan
+Forbearance Agreement”), under which the ABL Agent agreed to forbear from
+exercising certain default-related rights and remedies against the Company with
+respect to certain specified defaults under the Prepetition Credit Agreement;
+
+ 
+
+4
+
+
+
+--------------------------------------------------------------------------------
+
+WHEREAS, the Prepetition Agents hold first priority (subject to certain
+Permitted Liens (as defined in the Prepetition Credit Agreement and Prepetition
+Facility Agreement)) liens on all Collateral, Patent Collateral and Trademark
+Collateral, as applicable (as defined in the Prepetition Security Agreements),
+which includes all of the assets of the Debtors, including all Company
+Intellectual Property, except for Excluded Property and Excluded Accounts (as
+defined in the Prepetition Security Agreements);
+
+WHEREAS, as of the date and time of this Agreement, the Company has not
+commenced a case under chapter 11 of Title 11 of the United States Code (the
+“Bankruptcy Code”);
+
+WHEREAS, the Parties have negotiated a restructuring of the Company (the
+“Restructuring”) which shall be implemented in accordance with a pre-negotiated
+chapter 11 plan of reorganization, a copy of which has been provided to the
+Prepetition Agents (the “Plan”) that implements a reorganization and
+recapitalization of the Company pursuant to chapter 11 cases (the “Chapter 11
+Cases”) commenced under the Bankruptcy Code in the United States Bankruptcy
+Court for the Northern District of Texas (the “Bankruptcy Court”) which will be
+filed on the Petition Date (as defined below), and which will be subject to the
+Debtors’ evaluation of Alternative Transactions in accordance with the terms
+hereof;
+
+WHEREAS, subject to the Company’s evaluation of Alternative Transactions as set
+forth herein, the Restructuring contemplated by this Agreement shall be
+implemented upon the terms and conditions set forth in the term sheet attached
+hereto as Exhibit A (together with all exhibits, schedules, and attachments
+thereto and as amended, supplemented, or otherwise modified from time to time in
+accordance with the terms hereof, the “Restructuring Term Sheet”);
+
+WHEREAS, subject to Bankruptcy Court approval, the Debtors have obtained the
+agreement of the Prepetition Agents for (a) the DIP Facility (as defined below)
+on the terms and conditions set forth in a debtor-in-possession credit
+agreement, whose form and substance shall be acceptable to the DIP Agent and the
+Company and (b) the consensual use of “cash collateral” in each case pursuant to
+the terms and conditions of the proposed DIP order attached hereto as Exhibit B
+(the “Interim DIP Order”) and a proposed final order to be on terms
+substantially identical to the terms set forth in the Interim DIP Order with
+such changes necessary to convert the Interim DIP Order into a final order (the
+“Final DIP Order” and together with the Interim DIP Order the “DIP Orders” and
+each a “DIP Order”) to be entered by the Bankruptcy Court in form and substance
+mutually acceptable to the Company and the DIP Agent;
+
+WHEREAS, in order to effectuate the Restructuring, the Debtors intend to file
+petitions commencing (the date of commencement being the “Petition Date”) the
+Chapter 11 Cases under chapter 11 of the Bankruptcy Code;
+
+WHEREAS, this Agreement is the product of arm’s-length, good-faith negotiations
+among the Parties and is not intended to be and shall not be deemed to be a
+solicitation of acceptances of any chapter 11 plan; and
+
+WHEREAS, the Parties have agreed to support the Restructuring subject to and in
+accordance with the terms of this Agreement and to use commercially reasonable
+efforts to
+
+ 
+
+5
+
+
+
+--------------------------------------------------------------------------------
+
+complete the negotiation of the terms of the documents and completion of the
+actions specified to effect the Restructuring in accordance with the
+Restructuring Term Sheet.
+
+NOW, THEREFORE, in consideration of the promises and mutual covenants and
+agreements herein contained and for other good and valuable consideration, the
+receipt and sufficiency of which are hereby acknowledged, the Parties covenant
+and agree as follows:
+
+ARTICLE I
+
+DEFINITIONS
+
+Section 1.1 Defined Terms. As used in this Agreement, the following terms have
+the following meanings:
+
+“Affiliate” means, with respect to any Person, any other Person that, directly
+or indirectly, controls, is controlled by, or is under common control with, such
+Person, and the term “control” (including the terms “controlled by” and “under
+common control with”) means the possession, directly or indirectly, of the power
+to direct or cause the direction of the management and policies of such Person,
+whether through ownership of voting securities, by contract or otherwise.
+
+“Agreement” has the meaning set forth in the Preamble and shall include the
+Exhibits, Annexes and Schedules annexed hereto or referred to herein.
+
+“Alternative Transaction” means (i) any alternative refinancing,
+recapitalization, share exchange, rights offering, equity investment or other
+transaction or any purchase, sale, or other disposition of all or a material
+portion of a Debtor’s business or assets, except for the sale of assets in the
+ordinary course of business, in each case, other than pursuant to the
+Restructuring, (ii) any issuance, sale, or other disposition of any equity
+interest (including securities or instruments directly or indirectly convertible
+or exchangeable into equity but excluding any intercompany transactions
+necessary or desirable in connection with the Restructuring) in a Debtor (by
+such Debtor) in each case other than the Restructuring, (iii) any merger,
+acquisition, consolidation, or other business combination transaction involving
+a Debtor (excluding any intercompany transactions necessary or contemplated in
+connection with the Restructuring) or (iv) any other reorganization,
+restructuring or other transaction the purpose or effect of which is to
+restructure a significant portion of the Debtor’s business or assets or result
+in a significant reduction of the Debtors’ outstanding indebtedness.
+
+“Antitrust Laws” means any applicable supranational, national, federal, state,
+county or local antitrust, competition or trade regulation Laws that are
+designed or intended to prohibit, restrict or regulate actions having the
+purpose or effect of monopolization or restraint of trade or lessening
+competition through merger or acquisition, including the HSR Act, the Sherman
+Act, the Clayton Act and the Federal Trade Commission Act, in each case, as
+amended, and other similar antitrust, competition or trade regulation Laws of
+any jurisdiction other than the United States.
+
+“Approved KEIP” means that certain Key Employee Incentive Plan as consented to
+by the Supporting Lenders prior to the Petition Date.
+
+ 
+
+6
+
+
+
+--------------------------------------------------------------------------------
+
+“Approved KERP” means that certain Key Employee Retention Plan as consented to
+by the Supporting Lenders prior to the Petition Date.
+
+“Board” means the Board of Directors of Endologix. During the term of this
+Agreement, the Board shall at all times include one (1) independent director
+designated by the Agent (as defined in the Term Loan Forbearance Agreement) in
+accordance with the terms of the Term Loan Forbearance Agreement.
+
+“Books and Records” means all documents of, or otherwise in the possession,
+custody or control of, or used by, the Debtors in connection with, or relating
+to, the Business or the operations of the Debtors, including all books and
+records (financial, laboratory and otherwise), files, instruments, papers,
+microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title
+policies, lists of past, present and/or prospective customers, supplier lists,
+regulatory filings, billing records, and patient support and market research
+programs and related databases, documents relating to the filing, prosecution,
+maintenance, enforcement or defense of Intellectual Property, technical
+documentation (design specifications, functional requirements, operating
+instructions, manufacturing procedures, methods, and records, validation
+protocols and records, supplier qualification and purchasing information, logic
+manuals, flow charts, etc.), user documentation (installation guides, user
+manuals, training materials, release notes, working papers, etc.), data
+(including safety data, clinical trial data, patient data), reports (including
+environmental reports and assessments), plans, mailing lists, price lists,
+marketing information and procedures, advertising and promotional materials,
+equipment records, warranty information, architects agreements, construction
+contracts, drawings, plans and specifications, records of operations, standard
+forms of documents, and related books, records and workpapers, manuals of
+operations or business procedures and other similar procedures (including all
+discs, tapes and other media-storage data containing such information), all
+non-conforming material reports and assessments, complaint files and adverse
+event files in the safety and quality databases of the Debtors or their
+Affiliates, in each case, whether or not in electronic form.
+
+“Business Day” means any day other than Saturday, Sunday and any day that is a
+legal holiday or a day on which banking institutions in New York, New York are
+authorized by Law or other governmental action to close.
+
+“Business Permits” means all Permits that are required for the operation of the
+Business, in each case, as conducted or owned and used by the Debtors on the
+date of this Agreement.
+
+“Cause of Action” means any action, suit, claim, complaint, litigation,
+investigation, proceeding, arbitration or other similar dispute by or before any
+Governmental Entity.
+
+“Claim” means any “claim” (as defined in section 101(5) of the Bankruptcy Code)
+against the Debtors.
+
+“Code” means the Internal Revenue Code of 1986, as amended.
+
+“Company Intellectual Property” means all Intellectual Property owned or
+purported to be owned by the Company or any of its Subsidiaries, including all
+Company Registered Intellectual Property (other than Company Registered
+Intellectual Property identified on Section 5.11(a)(ii) of the Company
+Disclosure Letter), and all of the Company’s and each of its
+
+ 
+
+7
+
+
+
+--------------------------------------------------------------------------------
+
+Subsidiaries’ rights therein, and, in the case of Trademarks, all goodwill
+associated with or symbolized thereby.
+
+“Company IT Assets” means the IT Assets owned, used or held for use by any of
+the Company or any of its Subsidiaries.
+
+“Company Specified Representations” means the representations and warranties
+contained in the first sentence of Section 5.1, Section 5.3 and Section 5.9.
+
+“Confirmation Order” has the meaning set forth in the Restructuring Term Sheet.
+
+“Contract” means any agreement, commitment, promise, undertaking, contract,
+subcontract, settlement agreement, lease, sublease, instrument, permit,
+concession, franchise, binding understanding, note, option, bond, mortgage,
+indenture, trust document, loan or credit agreement, license, sublicense,
+insurance policy or other legally binding commitment or instrument, whether
+written or oral.
+
+“Copyrights” means all copyrights and applications for copyright.
+
+“Debtor Plan” means any benefit or compensation plan, program, policy, practice,
+agreement, contract, arrangement or other obligation, whether or not in writing
+and whether or not funded, in each case, which is sponsored or maintained by, or
+required to be contributed to, or with respect to which any potential liability
+is borne by, any of the Debtors or any of their Subsidiaries. Debtor Plans
+include, but are not limited to, “employee benefit plans” within the meaning of
+Section 3(3) of ERISA, whether or not subject to ERISA, employment, consulting,
+retirement, severance, separation, termination or change in control agreements,
+relocation, repatriation, expatriation, termination pay, performance awards,
+bonuses, incentives, equity-based awards, phantom equity, supplemental
+retirement, deferred compensation, profit sharing, insurance, medical, welfare,
+fringe or other benefits, but excluding any such plans established pursuant to
+statute.
+
+“Deerfield” means Deerfield Management Company, L.P. and its Affiliates.
+
+“Definitive Documents” has the meaning set forth in the Restructuring Term
+Sheet.
+
+“DIP Agent” has the meaning set forth in the Restructuring Term Sheet.
+
+“DIP Facility” has the meaning set forth in the Restructuring Term Sheet.
+
+“Disclosure Statement” has the meaning set forth in the Restructuring Term
+Sheet.
+
+“Disclosure Statement Order” means the order to be entered by the Bankruptcy
+Court approving the Disclosure Statement and Solicitation Materials as
+containing, among other things, “adequate information” as required by section
+1125 of the Bankruptcy Code.
+
+“Effective Date” means the date that the Plan becomes effective.
+
+ 
+
+8
+
+
+
+--------------------------------------------------------------------------------
+
+“Encumbrance” means any lien, pledge, hypothecation, mortgage, deed of trust,
+security interest, encumbrance, covenant, charge, claim, lease, sublease,
+option, right of first refusal, easement, servitude, restrictive covenant,
+encroachment, right of use or possession, right of way, encroachment, occupancy
+right, preemptive right, community property interest or restriction of any
+nature, whether arising prior to or subsequent to the commencement of the
+Chapter 11 Cases, and whether imposed by Law, Contract or otherwise.
+
+“Entity” has the meaning set forth in Section 101(15) of the Bankruptcy Code.
+
+“Environmental Laws” means all Laws relating to the protection of the
+environment.
+
+“Equity Interests” means all equity interests of any kind, including common and
+preferred stock, options, warrants and other agreements or rights to acquire the
+same (including any arising under or in connection with any employment
+agreement, incentive plan, benefit plan, or the like).
+
+“ERISA” means the Employee Retirement Income Security Act of 1974, as amended,
+and the regulations promulgated and rulings issued thereunder.
+
+“ERISA Affiliate” means, with respect to any entity, trade or business, any
+other entity, trade or business that is a member of a group described in
+Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that
+includes the first entity, trade or business, or that is a member of the same
+“controlled group” as the first entity, trade or business pursuant to
+Section 4001(a)(14) of ERISA.
+
+“ERISA Plan” means an “employee benefit plan” within the meaning of Section 3(3)
+of ERISA.
+
+“Estates” means individually or collectively, the estate or estates of each
+Debtor created under section 541 of the Bankruptcy Code.
+
+“Exchange Act” means the Securities Exchange Act of 1934, as amended.
+
+“Excluded Matter” has the meaning set forth in the definition of “Material
+Adverse Effect”.
+
+“Exit Facility” has the meaning set forth in the Restructuring Term Sheet.
+
+“Exit Facility Documents” means the documents and agreements memorializing and
+otherwise related to the Exit Facility.
+
+“Expense Reimbursement Amount” means the dollar amount equal to the aggregate
+amount of all reasonable and documented out of pocket costs, expenses and fees
+incurred by the Supporting Lenders or their respective Affiliates, in connection
+with evaluating, negotiating, documenting and performing the transactions
+contemplated by this Agreement, the Restructuring Term Sheet and the Definitive
+Documents, including fees, costs and expenses of any professionals (including
+financial advisors, outside legal counsel, accountants, experts and consultants)
+retained by the Supporting Lenders or their respective Affiliates in connection
+with
+
+ 
+
+9
+
+
+
+--------------------------------------------------------------------------------
+
+or related to the authorization, preparation, investigation, negotiation,
+execution and performance of this Agreement, the transactions contemplated
+hereby, including the Chapter 11 Case and other judicial and regulatory
+proceedings related to such transactions, which amount shall, subject to
+Bankruptcy Court approval, constitute an administrative expense priority claim
+under Section 503(b)(1)(A) of the Bankruptcy Code and shall be payable as set
+forth in Section 9.3(b).
+
+“FDA” means the United States Food and Drug Administration.
+
+“FDCA” means the U.S. Federal Food, Drug and Cosmetic Act of 1938, as amended
+(21 U.S.C. § 301 et seq.).
+
+“Final Order” means an Order which has not been stayed (or with respect to which
+any stay has been lifted) and (i) as to which the time to file an appeal, a
+motion for rehearing or reconsideration (excluding any motion under
+Section 60(b) of the Federal Rules of Civil Procedure) or a petition for writ of
+certiorari has expired and no appeal, motion, stay or petition is pending, or
+(ii) in the event that such an appeal or petition thereof has been sought,
+either (A) such Order shall have been affirmed by the highest court to which
+such Order was appealed or certiorari shall have been denied, and the time to
+take any further appeal or petition of certiorari shall have expired or (B) such
+appeal, motion, stay or petition shall not have been granted and shall no longer
+be pending and the time for seeking such appeal, motion, stay or petition shall
+have expired.
+
+“GAAP” means United States generally accepted accounting principles.
+
+“Governmental Entity” means any U.S. or non-U.S. governmental or regulatory
+authority, agency, commission, body, court or other legislative, executive,
+judicial, or administrative governmental entity at any level, or any agency,
+department or instrumentality thereof.
+
+“Guarantors” means (i) CVS/DMS Acquisition Corp., (ii) Nellix, Inc., (iii)
+TriVascular Technologies, Inc., (iv) TriVascular, Inc., (v) Endologix Canada,
+LLC, (vi) TriVascular Sales LLC and (vii) RMS/Endologix Sideways Merger Corp.
+
+“Hazardous Substance” means any substance that is listed, classified or
+regulated pursuant to any Environmental Law.
+
+“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
+amended.
+
+“Indebtedness” means, with respect to any Person, (a) all obligations for
+borrowed money, (b) all obligations evidenced by bonds, debentures, notes or
+similar instruments, (c) all Indebtedness of others secured by any Encumbrance
+on owned or acquired property of the reference Person, whether or not the
+Indebtedness secured thereby has been assumed, (d) all guarantees (and any other
+arrangement having the economic effect of a guarantee) of Indebtedness of
+others, (e) all obligations, contingent or otherwise, of such Person as an
+account party in respect of financial guaranties, letters of credit, letters of
+guaranty, surety bonds and other similar instruments, (f) all obligations
+representing the deferred and unpaid purchase price of property (other than
+trade payables incurred in the ordinary course of business consistent with
+
+ 
+
+10
+
+
+
+--------------------------------------------------------------------------------
+
+past practice), (g) all obligations, contingent or otherwise, in respect of
+bankers’ acceptances and (h) net cash payment obligations of such Person under
+swaps, options, derivatives and other hedging agreements or arrangements that
+will be payable upon termination thereof (assuming they were terminated on the
+date of determination).
+
+“Intellectual Property” means all intellectual property rights and proprietary
+rights of any kind or nature, including any and all of the following arising in
+any jurisdiction of the world: (a) Patents; (b) Trademarks; (c) Trade Secrets;
+(d) Copyrights; (e) internet domain names; and (f) all applications for, and
+registrations of, any of the foregoing.
+
+“Inventory” means any and all raw materials, packaging and labelling materials,
+components, parts or other supplies or inventories to which the Debtors have
+title that are in the possession of the Debtors or any third party and used or
+held for use in connection with any Product or related to the Business, whether
+located at any premises of the Debtors or elsewhere.
+
+“IRS” means the Internal Revenue Service of the United States.
+
+“IT Assets” means technology devices, computers, Software, servers, networks,
+workstations, routers, hubs, circuits, switches, data communications lines, and
+all other information technology equipment and all associated documentation.
+
+“Knowledge of the Debtors” means the actual knowledge of the individuals set
+forth on Section 1.1 of the Company Disclosure Letter.
+
+“Law” means any U.S. or non-U.S. federal, state, provincial or local law,
+statute, code, ordinance, rule, regulation, Order, stipulation, award or common
+law requirement.
+
+“Lender Specified Representations” means the representations and warranties
+contained in the first sentence of Section 6.1, Section 6.2 and Section 6.5.
+
+“Liability” means any debt, loss, liability, claim (including “claim” as defined
+in the Bankruptcy Code), commitment, undertaking, damage, expense, fine,
+penalty, cost, royalty or obligation (including those arising out of any action,
+such as any settlement or compromise thereof or judgment or award therein), of
+any nature, whether known or unknown, disclosed or undisclosed, express or
+implied, primary or secondary, direct or indirect, matured or unmatured, fixed,
+absolute, contingent, accrued or unaccrued, asserted or not asserted, liquidated
+or unliquidated, and whether due or to become due, and whether in Contract, tort
+or otherwise.
+
+“Material Adverse Effect” means any event, change, effect, condition, state of
+facts or occurrence (regardless of whether such event, change, effect,
+condition, state of facts or occurrence constitutes a breach of any
+representation, warranty or covenant of the Debtors hereunder) which has had or
+would reasonably be expected to have, individually or when considered together
+with any other events, changes, effects, conditions, states of facts or
+occurrences, (a) a material adverse effect on or a material adverse change in or
+to the business, results of operations, financial condition, assets, or
+liabilities of the Company and its Subsidiaries (taken as a whole) or (b) a
+material adverse effect on the ability of the Debtors to consummate the
+Transactions or perform their obligations under this Agreement or the
+Restructuring Term Sheet on a timely basis; provided, however, that a Material
+Adverse Effect shall not be deemed
+
+ 
+
+11
+
+
+
+--------------------------------------------------------------------------------
+
+to include events, changes, effects, conditions, states of facts or occurrences
+arising out of, relating to or resulting from: (i) changes in the United States
+or foreign economies or financial markets in general, (ii) general changes or
+developments in business, regulatory or macroeconomic conditions or trends that
+affect the industries and markets in which the Business operates, (iii) public
+announcement of this Agreement or the Chapter 11 Cases, the public announcement
+or the consummation of the Restructuring and the Transactions, the commencement
+of the Chapter 11 Cases or the identity of the Supporting Lenders, (iv) any
+action or omission by the Supporting Lenders in breach of this Agreement,
+(v) any action which is expressly requested in writing by a Supporting Lender,
+(vi) changes in any applicable Laws or applicable accounting regulations or
+principles or the enforcement or interpretation thereof, (vii) any outbreak or
+escalation of hostilities or war or any act of terrorism or natural disaster or
+act of God (except to the extent related to any effects or conditions resulting
+from a disease or pandemic, including SARS-CoV-2 or COVID-19, or any
+governmental or other response thereto, in each case, whether or not involving
+the United States or any other country in which the Company or any of its
+Subsidiaries operate) and (viii) any failure of the Business to meet any
+budgets, plans, projections or forecasts (internal or otherwise) or any decline
+in the trading price or trading volume of the Company’s common stock or any
+change in the ratings or ratings outlook for the Company as a result of the
+commencement of the Chapter 11 Cases (each of clauses (i) through (viii), an
+“Excluded Matter”); provided further that with respect to clauses (i), (ii),
+(vi) and (vii), such effects shall not be deemed to arise out of, relate to or
+result from an Excluded Matter to the extent the same disproportionately
+adversely affects the Company and its Subsidiaries or the Business, in each
+case, taken as a whole, as compared to other similarly situated entities or
+businesses.
+
+“Milestones” means those Milestones set forth in Exhibit D.
+
+“Nasdaq” means the Nasdaq Stock Exchange.
+
+“OFAC” means the Office of Foreign Asset Control of the United States Department
+of the Treasury.
+
+“Order” means any order, injunction, judgment, decree, ruling, writ, assessment
+or arbitration award of, or entered, issued, made or rendered by, a Governmental
+Entity, or any settlement agreement entered in connection therewith.
+
+“Outside Date” means October 5, 2020 at 11:59 p.m. Eastern Time.
+
+“Patents” means patents and patent applications, invention disclosures and
+rights in respect of utility models or industrial designs, including all related
+continuations, continuations-in-part, divisionals, reissues, re-examinations,
+renewals, revisions, supplementary protection certificates, substitutions, and
+extensions thereof.
+
+“Permits” means all licenses, permits, franchises, approvals, registrations,
+listings, authorizations, consents or orders of, or filings with, any
+Governmental Entity.
+
+“Permitted Encumbrance” means any (a) Encumbrances for Taxes not yet due and
+payable or that are being contested in good faith through appropriate
+proceedings, (b) Encumbrance for assessments and other governmental charges or
+landlords’, carriers’,
+
+ 
+
+12
+
+
+
+--------------------------------------------------------------------------------
+
+warehousemen’s, mechanics’, repairmen’s, workers’ or any similar Encumbrance
+incurred in the ordinary course of business consistent with past practice, in
+each case, for sums not yet due and payable or due, but not delinquent or being
+contested in good faith by appropriate proceedings, (c) Encumbrance imposed or
+promulgated by applicable Law or any Governmental Entity with respect to real
+property, including zoning, building, fire, health and Environmental Laws and
+similar regulations, (d) pledges or deposits in connection with workers’
+compensation, unemployment insurance, social security and other similar
+legislation, (e) Encumbrance incurred in the ordinary course of business
+consistent with past practice, in connection with workers’ compensation,
+unemployment insurance and other types of social security, (f) licenses,
+covenants not to sue or similar rights with respect to Intellectual Property
+that are granted in the ordinary course of business and (g) those Encumbrances
+granted under the DIP Orders.
+
+“Person” means any individual, partnership, joint venture, limited liability
+company, corporation, trust, unincorporated organization, group, governmental or
+regulatory authority, or any other legal entity or association, including the
+United States Trustee and any official or ad hoc committee formed in the
+Chapter 11 Cases.
+
+“Personal Information” means any information or data that alone, or together
+with any other data or information, identifies any person or device, and any
+other personal information whose processing, security, collection, storage, use,
+disclosure, transfer or other exploitation is governed under any applicable Laws
+with respect to privacy or data protection.
+
+“Plan Supplement” means the documents and forms of documents, schedules and
+exhibits to the Plan, to be filed by the Debtors no later than ten (10) calendar
+days before the deadline to vote on the Plan filed with the Bankruptcy Court
+(including any amendments or supplements thereto). Such documents shall be
+consistent with the terms of the Restructuring, the Restructuring Term Sheet and
+the Plan and acceptable in form and substance to the Parties.
+
+“Post-Restructuring Insurance” means insurance (under one or more policies,
+including product liability insurance) that is acceptable to the Supporting
+Lenders in their sole discretion providing coverage for the risks of the
+Business and the Reorganized Debtors and their properties and assets.
+
+“Prepetition Security Agreements” means (i) the Amended and Restated Guaranty
+and Security Agreement, dated August 9, 2018, among the Company, the Term Loan
+Agent and the Guarantors, as amended, supplemented, or otherwise modified from
+time to time in accordance with the terms thereof, (ii) the Guaranty and
+Security Agreement, dated as of August 9, 2018, among the Company, the ABL Agent
+and the Guarantors, as amended, supplemented, or otherwise modified from time to
+time in accordance with the terms thereof, (iii) the Patent Security Agreement,
+dated as of August 9, 2918, among the Company, Nellix, Inc., TriVascular, Inc.
+and the ABL Agent, as amended, supplemented, or otherwise modified from time to
+time in accordance with the terms thereof and (iv) the Trademark Security
+Agreement, dated as of August 9, 2018, among the Company, TriVascular, Inc. and
+the ABL Agent, as amended, supplemented, or otherwise modified from time to time
+in accordance with the terms thereof.
+
+“Registered Intellectual Property” means all applications, registrations and
+filings for Intellectual Property that have been registered or filed with or by,
+or are the subject of an
+
+ 
+
+13
+
+
+
+--------------------------------------------------------------------------------
+
+application before, any Governmental Entity or internet domain name registrar,
+including the United States Patent and Trademark Office or United States
+Copyright Office, including issued Patents and Patent applications, registered
+Trademarks and Trademark applications, registered Copyrights and Copyright
+applications, and internet domain name registrations.
+
+“Regulatory Authority” means any national or supranational Governmental Entity,
+including the FDA, with responsibility for granting any license, registrations
+or approvals with respect to the Products.
+
+“Representatives” means, when used with respect to any Person, the directors,
+officers, partners, managers, employees, consultants, financial advisors,
+accountants, counsel, investment bankers and other agents, advisors and
+representatives of such Person and its Subsidiaries.
+
+“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002, as amended.
+
+“SEC” means the United States Securities and Exchange Commission.
+
+“Securities Act” means the Securities Act of 1933, as amended.
+
+“Software” means any and all (a) computer programs and other software, including
+software implementations of algorithms, models, and methodologies, whether in
+source code, object code or other form, including libraries, subroutines and
+other components thereof, together with input and output formats;
+(b) computerized databases and other computerized compilations and collections
+of data or information; (c) screens, user interfaces, command structures, report
+formats, templates, menus, buttons and icons; (d) descriptions, flow charts,
+architectures, development tools, and other materials used to design, plan,
+organize and develop any of the foregoing; and (e) all documentation, including
+development, diagnostic, support, user and training documentation related to any
+of the foregoing.
+
+“Solicitation Materials” means, collectively, the Disclosure Statement and the
+other solicitation materials in respect of the Plan.
+
+“Subsidiary” means with respect to any Person, any corporation, limited
+liability company, partnership or other organization, whether incorporated or
+unincorporated, of which (a) at least a majority of the outstanding shares of
+capital stock of, or other Equity Interests, having by their terms ordinary
+voting power to elect a majority of the board of directors or others performing
+similar functions with respect to such corporation, limited liability company,
+partnership or other organization is directly or indirectly owned or controlled
+by such Person or by any one or more of its Subsidiaries, or by such Person and
+one or more of its Subsidiaries or (b) with respect to a partnership, such
+Person or any other Subsidiary of such Person is a general partner of such
+partnership.
+
+“Takeover Statute” means any “fair price,” “moratorium,” “control share
+acquisition” or other similar anti-takeover Law.
+
+“Tax” or “Taxes” means any and all U.S. federal, state, local and non-U.S.
+taxes, assessments, levies, duties, tariffs, imposts and other similar charges
+and fees imposed by any Governmental Entity, including income, franchise,
+windfall or other profits, gross receipts,
+
+ 
+
+14
+
+
+
+--------------------------------------------------------------------------------
+
+property, sales, use, net worth, capital stock, payroll, employment, social
+security, workers’ compensation, unemployment compensation, excise, withholding,
+ad valorem, stamp, transfer, value-added, occupation, environmental, disability,
+real property, personal property, registration, alternative or add-on minimum,
+or estimated tax, including any interest, penalty, additions to tax and any
+additional amounts imposed with respect thereto.
+
+“Tax Return” means any return, filing, report, questionnaire, information
+statement, claim for refund or declaration of estimated Taxes, including any
+schedule or attachment thereto or any amendment thereof, filed or required to be
+filed with any Taxing Authority in connection with the determination, assessment
+or collection of any Tax, or the administration of any laws, regulations or
+administrative requirements relating to any Tax, including consolidated,
+combined and unitary tax returns.
+
+“Taxing Authority” means any U.S. federal, state, local or non-U.S. Governmental
+Entity or authority exercising regulatory authority in respect of taxes or
+responsible for the imposition of any Tax.
+
+“Trade Secrets” means trade secrets and rights in confidential or proprietary
+information, inventions, know-how, discoveries, methods, processes, formulae,
+models, methodologies, drawings, prototypes, designs, customer lists and
+supplier lists.
+
+“Trademarks” means trademarks, trade names, service marks, trade dress,
+certification marks, collective marks, d/b/a’s, symbols, design rights and other
+similar designations of origin, together with the goodwill associated with or
+symbolized by any of the foregoing.
+
+“Transaction Expenses” means all fees and expenses of the Prepetition Agents,
+the Supporting Lenders, and each of their advisors, that are incurred in
+connection with the Restructuring.
+
+“Transactions” means the acquisition of the Equity Interests of the reorganized
+Debtors by the Supporting Lenders in accordance with the terms hereof and the
+Restructuring Term Sheet.
+
+Section 1.2 Terms Defined Elsewhere in this Agreement. The following terms are
+defined elsewhere in this Agreement, as indicated below:
+
+ 
+
+510(k)s    Section 5.19(b) AAA    Recitals ABL Agent    Preamble Agreement   
+Preamble Alternative Transaction Notice Period    Section 7.5(b) Bankruptcy Code
+   Recitals Bankruptcy Court    Recitals Business    Recitals Chapter 11 Cases
+   Recitals Company    Preamble Company Disclosure Letter    Article V
+
+ 
+
+15
+
+
+
+--------------------------------------------------------------------------------
+
+Company Registered Intellectual Property    Section 5.11(a) Company SEC
+Documents    Section 5.6(a) Company Subsidiaries    Preamble Company Termination
+Event    Section 9.1(d) Consent    Section 5.4 Debtor    Preamble Debtors   
+Preamble DIP Order    Recitals DIP Orders    Recitals DPLP    Preamble Effective
+Period    Section 3.1 Endologix    Preamble Enforceability Limitations   
+Section 5.3 Excluded Matter    Section 1.1 FDA Law and Regulation   
+Section 5.19(a) FDCA Permits    Section 5.19(b) Final DIP    Recitals Financial
+Statements    Section 5.6(e) Insurance Policies    Section 5.21 Interim DIP
+Order    Recitals Leases    Section 5.13(b) Material Contracts   
+Section 5.14(a) Notice    Section 10.8 Other Motions    Section 4.1(b) Parties
+   Preamble Party    Preamble PDIII    Preamble PDIV    Preamble Petition Date
+   Recitals Plan    Recitals PMAs    Section 5.19(b) Prepetition Agents   
+Preamble Prepetition Agreement Claims    Section 3.3 Prepetition Credit
+Agreement    Preamble Prepetition Facility Agreement    Preamble Prepetition
+Lenders    Preamble Privacy and Security Policies    Section 5.12(b) Products   
+Recitals Proposed Alternative Transaction    Section 7.5(a) Restructuring   
+Recitals Restructuring Term Sheet    Recitals Revised Supporting Lender Proposal
+   Section 7.5(c) Successor    Section 9.3(c) Superior Alternative Transaction
+   Section 7.5(b) Supporting Lender    Preamble Supporting Lender Termination
+Event    Section 9.1(b)
+
+ 
+
+16
+
+
+
+--------------------------------------------------------------------------------
+
+Term Loan Agent    Preamble Term Loan Forbearance Agreement    Recitals Third
+Day Review Pleadings    Section 4.1(b) Transfer    Section 3.3 Transferee   
+Section 3.3 Transferee Joinder    Section 3.3
+
+ARTICLE II
+
+DEFINITIVE DOCUMENTS
+
+Section 2.1 Incorporation of Exhibits and Schedules. Each of the exhibits and
+schedules attached hereto, including the Restructuring Term Sheet and all
+exhibits thereto, are expressly incorporated by reference and made part of this
+Agreement as if fully set forth herein. The Restructuring Term Sheet (including
+each of the exhibits thereto) sets forth the material terms and conditions of
+the Plan and the Restructuring. Except as otherwise provided herein, neither
+this Agreement, the Restructuring Term Sheet nor any provision hereof or thereof
+may be modified, amended, waived or supplemented except in accordance with
+Section 10.14.
+
+Section 2.2 Definitive Documents. The Definitive Documents, including any
+amendments, supplements or modifications thereof, shall contain terms and
+conditions consistent in all respects with this Agreement and the Restructuring
+Term Sheet. The Parties acknowledge and agree that (a) the Debtors provided
+advance draft copies of the Plan and Disclosure Statement to counsel to the
+Supporting Lenders; and (b) they will each use commercially reasonable efforts
+to provide advance draft copies of all other Definitive Documents and other
+pleadings (excluding pleadings of an administrative or ministerial nature) to
+counsel to the other Parties at least three (3) Business Days prior to the date
+when any Party intends to file such pleading or other document, if applicable;
+provided, however, if circumstances reasonably prevent a Party from providing
+such drafts at least three (3) Business Days prior to filing, no Party shall be
+precluded from filing such Definitive Document and other pleadings, but such
+Party shall use commercially reasonable efforts to provide a draft to the other
+Parties as soon as practicable under the circumstances prior to such filing;
+provided further, however, that the Debtors shall not be required to provide
+draft copies of any declarations, retention applications, any fee statements, or
+any fee applications to counsel to the Supporting Lenders.
+
+ARTICLE III
+
+COMMITMENTS OF THE SUPPORTING LENDERS
+
+Section 3.1 Support of Restructuring. From the date of this Agreement and as
+long as this Agreement has not been terminated pursuant to its terms (such
+period, the “Effective Period”), subject to the terms of this Agreement, each
+Supporting Lender severally agrees that it shall:
+
+(a) negotiate in good faith all Definitive Documents, reasonably agree to
+extensions of the Milestones to the extent required to accommodate the
+Bankruptcy Court’s
+
+ 
+
+17
+
+
+
+--------------------------------------------------------------------------------
+
+calendar, and comply with each of its other covenants and commitments set forth
+in this Agreement and the Restructuring Term Sheet;
+
+(b) provide prompt written notice to the Company between the date of this
+Agreement and the Effective Date of (i) the occurrence, or failure to occur, of
+any event of which the occurrence or failure to occur would be reasonably likely
+to cause any Lender Specified Representations to be untrue or inaccurate in any
+respect or any other representation or warranty of the Supporting Lenders
+contained in this Agreement to be untrue or inaccurate in any material respect,
+(ii) any material breach of any covenant of the Supporting Lenders contained in
+this Agreement, (iii) any event, condition, fact, or circumstance that would
+make the timely satisfaction of any of the conditions set forth in Article VIII
+impossible or unlikely, (iv) the receipt of any written notice from any third
+party alleging that the consent of such party is or may be required as a
+condition precedent to consummation of the Transactions or (v) the receipt of
+any written notice from any Governmental Entity that is material to the
+consummation of the Transactions;
+
+(c) (i) subject to receipt of the Disclosure Statement and other Solicitation
+Materials approved by the Disclosure Statement Order, timely vote, or cause to
+be voted, all of its Claims to accept the Plan following the commencement of
+solicitation of votes for the Plan, by delivering their duly executed and
+completed ballots accepting the Plan; (ii) refrain from changing, revoking or
+withdrawing (or causing such change, revocation or withdrawal of) such vote or
+consent; provided, however, that such vote may be revoked (and, upon such
+revocation, deemed void ab initio) by such Supporting Lender at any time
+following the termination of this Agreement as to such Supporting Lender
+pursuant to the terms hereof; and (iii) not object to, delay, postpone,
+challenge, reject, oppose or take any other action that would reasonably be
+expected to prevent, interfere with, delay or impede, directly or indirectly,
+the releases and exculpations set forth in the Plan and to the extent it is
+permitted to elect whether to opt in or opt out of any agreed upon releases or
+exculpations set forth in the Plan, to elect to opt in, and not to elect to opt
+out of, the releases set forth in the Plan so long as such release may be
+revoked (and, upon such revocation, deemed void ab initio) by such Supporting
+Lender at any time following the termination of this Agreement as to such
+Supporting Lender pursuant to the terms hereof;
+
+(d) to the extent that a legal or structural impediment to consummation of the
+Plan arises outside of the jurisdiction of the Bankruptcy Court, and such legal
+or structural impediment does not otherwise provide the Supporting Lenders with
+a right to terminate this Agreement, negotiate in good faith to address any such
+impediment; and
+
+(e) not:
+
+(i) object to, delay, postpone, challenge, reject, oppose or take any other
+action that would reasonably be expected to prevent, interfere with, delay or
+impede, directly or indirectly, in any material respect, the approval,
+acceptance or implementation of the Restructuring on the terms set forth herein
+or in the Restructuring Term Sheet;
+
+(ii) object to or oppose, or support any other Person’s efforts to object to or
+oppose, any motions filed by the Company that are consistent with this
+Agreement,
+
+ 
+
+18
+
+
+
+--------------------------------------------------------------------------------
+
+including any request by the Company to extend its exclusive periods solely to
+file the Plan and solicit acceptances thereof;
+
+(iii) object to, or vote to reject, the Plan or any other Definitive Document
+that comports with this Agreement; provided that the Supporting Lenders shall be
+entitled to object to or vote to reject the Plan or any Definitive Document on
+the basis that it does not comport with this Agreement;
+
+(iv) initiate any legal proceeding or enforce rights as holders of Claims that
+are inconsistent with, or that would reasonably be expected to prevent or
+materially delay consummation of, the Restructuring; or
+
+(v) take any actions where such taking would be (A) inconsistent with this
+Agreement, the Restructuring Term Sheet or the Definitive Documents or
+(B) otherwise inconsistent with, or reasonably expected to prevent, interfere
+with or impede the implementation or consummation of, the Restructuring.
+
+Section 3.2 Rights of Supporting Lenders Unaffected. Nothing contained in this
+Agreement shall limit:
+
+(a) the rights of any Supporting Lender to appear as a party in interest in any
+matter to be adjudicated in order to be heard concerning any matter arising in
+the Chapter 11 Cases, in each case, so long as the exercise of any such right is
+not inconsistent with such Supporting Lender’s obligations hereunder;
+
+(b) the ability of any Supporting Lender to purchase, sell, or enter into any
+transactions in connection with its Claims, subject to the terms hereof and
+applicable Law;
+
+(c) the ability of any Supporting Lender to assert or raise any objection in
+connection with any hearing in the Bankruptcy Court so long as such objection is
+not inconsistent with such Supporting Lender’s obligations hereunder;
+
+(d) any right of any Supporting Lender to take or direct any action relating to
+the maintenance, protection, or preservation of any collateral so long as such
+action is not inconsistent with this Agreement;
+
+(e) subject to the terms hereof, any right of a Supporting Lender under (x) the
+Prepetition Credit Agreements, or that constitutes a waiver or amendment of any
+provision of the Prepetition Credit Agreements, (y) the Prepetition Facility
+Agreements, or that constitutes a waiver or amendment of any provision of the
+Prepetition Facility Agreements or (z) any other applicable agreement,
+instrument or document that gives rise to a Supporting Lender’s Claims or
+interests, as applicable, or that constitutes a waiver or amendment of any
+provision of any such agreement, instrument or document;
+
+(f) the ability of any Supporting Lender to consult with other Supporting
+Lenders or the Company;
+
+ 
+
+19
+
+
+
+--------------------------------------------------------------------------------
+
+(g) the ability of a Supporting Lender to enforce any right, remedy, condition,
+consent or approval requirement under this Agreement, the DIP Orders or any of
+the other Definitive Documents; or
+
+(h) the right of any Supporting Lender to assert and receive distributions on
+any Claims held by such Supporting Lender (including Claims that do not arise
+under the Prepetition Credit Agreement, the Prepetition Facility Agreements, or
+the DIP Orders ).
+
+Section 3.3 Transfer of Claims. During the Effective Period, no Supporting
+Lender shall sell, contract to sell, give, assign, participate, hypothecate,
+pledge, encumber, grant a security interest in, offer, sell any option or
+Contract to purchase, or otherwise transfer or dispose of, any economic, voting
+or other rights in or to, by operation of Law or otherwise (each, a “Transfer”)
+all or any portion of the Claims arising under the Prepetition Credit Agreement
+or Prepetition Facility Agreements (“Prepetition Agreement Claims”) (including
+granting any proxies, depositing such Prepetition Agreement Claims into a voting
+trust or entering into a voting agreement with respect to such Prepetition
+Agreement Claims); provided, however, that any Supporting Lender may Transfer
+any of its Prepetition Agreement Claims to any Person (so long as such Transfer
+is not otherwise prohibited by any order of the Bankruptcy Court) that
+(i) agrees in writing, in substantially the form attached hereto as Exhibit C (a
+“Transferee Joinder”), to be bound by the terms of this Agreement (each such
+transferee, a “Transferee”) or (ii) is a Supporting Lender; provided that upon
+any purchase, acquisition or assumption by any Supporting Lender of any
+Prepetition Agreement Claims, such Prepetition Agreement Claims shall
+automatically be deemed to be subject to the terms of this Agreement. Subject to
+the terms and conditions of any order of the Bankruptcy Court limiting a
+Transfer, the transferring Supporting Lender shall provide the Company and its
+counsel and the Prepetition Agents with a copy of any Transferee Joinder
+executed by such Transferee within one (1) Business Day following such
+execution. In the case of a Transfer to a Person that is not a Supporting
+Lender, the Transfer shall only be effective upon execution and delivery of a
+Transferee Joinder in which event (A) the Transferee shall be deemed to be a
+Supporting Lender hereunder with respect to all of its owned or controlled
+Prepetition Agreement Claims and (B) the transferor Party shall be deemed to
+relinquish its rights (and be released from its obligations) under this
+Agreement solely to the extent of such transferred Prepetition Agreement Claims.
+With respect to Prepetition Agreement Claims held by the relevant Transferee
+upon consummation of a Transfer, such Transferee is deemed to make all of the
+representations and warranties of a Supporting Lender set forth in this
+Agreement. Any Transfer of any Supporting Lender’s Prepetition Agreement Claim
+that does not comply with the foregoing shall be deemed void ab initio and the
+Company and each other Party shall have the right to enforce the voiding of such
+Transfer.
+
+ARTICLE IV
+
+COMMITMENTS OF THE COMPANY
+
+Section 4.1 Commitments of the Company. During the Effective Period, subject to
+the terms of this Agreement (including the terms and conditions set forth in the
+Restructuring Term Sheet), including, for the avoidance of doubt, the Company’s
+rights regarding Alternative Transactions to the extent set forth herein, the
+Company agrees that it shall, and shall direct its Subsidiaries and its and
+their respective Affiliates, to the extent applicable, to:
+
+ 
+
+20
+
+
+
+--------------------------------------------------------------------------------
+
+(a) (i) use commercially reasonable efforts to seek approval of the Plan and to
+complete the Restructuring; (ii) prosecute and defend any appeals relating to
+the Confirmation Order; (iii) support and consummate the Restructuring in a
+timely manner in accordance with this Agreement, including to negotiate in good
+faith all Definitive Documents, coordinate its activities with the other Parties
+hereto in respect of all matters concerning the implementation and consummation
+of the Restructuring and take any and all necessary and appropriate actions in
+furtherance of this Agreement, (iv) use reasonable best efforts to comply with
+each Milestone as set forth in Exhibit D, including agreeing to the extension of
+such Milestones as required to accommodate the Bankruptcy Court’s calendar; and
+(v) comply with each of its other covenants and commitments set forth in this
+Agreement and the Restructuring Term Sheet;
+
+(b) provide draft copies of (i) the Plan and Disclosure Statement to counsel to
+the Supporting Lenders at least ten (10) calendar days prior to filing with the
+Bankruptcy Court, (ii) subject to Section 2.2 hereof, the Plan Supplement, the
+motion to approve the Disclosure Statement, the Solicitation Materials, any
+proposed Confirmation Order, any proposed amended version of the Plan or the
+Disclosure Statement, all “first day” pleadings (including forms of orders
+relating thereto), and any other motions, draft orders, pleadings or briefs that
+are material to the Restructuring (collectively, the “Third Day Review
+Pleadings”) the Company intends to file with the Bankruptcy Court to counsel to
+the Supporting Lenders at least two (2) Business Days prior to filing with the
+Bankruptcy Court, with all other motions, applications, proposed orders,
+pleadings and briefs (“Other Motions”) the Company intends to file with the
+Bankruptcy Court to be provided to counsel to the Supporting Lenders no fewer
+than twenty-four (24) hours prior to filing with the Bankruptcy Court, and in
+each case, consult in good faith with such counsel regarding the form and
+substance of any such proposed filing with the Bankruptcy Court or, to the
+extent such filing is required to be acceptable to the DIP Agent pursuant to
+this Agreement, not file such filing until it is acceptable to the DIP Agent;
+provided that (x) the Debtors shall not be required to provide draft copies of
+any retention applications, any fee statements, any fee applications, or any
+supporting applications to counsel to the DIP Agent and (y) if the notice
+required by this Section 4.1(b) with respect to the Third Day Review Pleadings
+and Other Motions is not reasonably practicable with respect to any document or
+pleading, the Debtors may provide such document or pleading as soon as
+reasonably practicable;
+
+(c) timely file a formal objection to any motion filed with the Bankruptcy Court
+by any Person seeking the entry of an order directing the appointment of an
+examiner with expanded powers or a trustee, converting the Chapter 11 Cases to
+cases under chapter 7 of the Bankruptcy Code, dismissing the Chapter 11 Cases,
+modifying or terminating the Debtors’ exclusive right to file and/or solicit
+acceptances of a plan of reorganization or for relief that (x) is inconsistent
+with this Agreement or (y) would, or would reasonably be expected to, frustrate
+the purposes of this Agreement, including by preventing the consummation of the
+Restructuring;
+
+(d) timely file a formal written response in opposition to any objection filed
+with the Bankruptcy Court by any Person with respect to the use of cash
+collateral pursuant to the DIP Orders or otherwise;
+
+(e) timely file a formal written response in opposition to any objection filed
+with the Bankruptcy Court by any Person with respect to the use of proceeds or
+with respect to
+
+ 
+
+21
+
+
+
+--------------------------------------------------------------------------------
+
+any of the adequate protection granted to the Prepetition Lenders pursuant to
+the DIP Orders or otherwise;
+
+(f) consult with the Supporting Lenders with respect to the assumption or
+rejection of executory Contracts and unexpired leases of non-residential real
+property;
+
+(g) pay all of the Transaction Expenses consistent with Section 10.13 of this
+Agreement;
+
+(h) provide prompt written notice to the Supporting Lenders between the date of
+this Agreement and the Effective Date of (i) the occurrence, or failure to
+occur, of any event of which the occurrence or failure to occur would be
+reasonably likely to cause any Company Specified Representations to be untrue or
+inaccurate in any respect or any other representation or warranty of the Company
+contained in this Agreement to be untrue or inaccurate in any material respect,
+(ii) any material breach of any covenant of the Company contained in this
+Agreement, (iii) any event, condition, fact, or circumstance that would make the
+timely satisfaction of any of the conditions set forth in Article VIII
+impossible or unlikely, (iv) the receipt of any written notice from any third
+party alleging that the consent of such party is or may be required as a
+condition precedent to consummation of the Transactions, (v) the receipt of any
+written notice from any Governmental Entity that is material to the consummation
+of the Transactions, (vi) the receipt of any written notice of any proceeding
+commenced or threatened against the Company or its Subsidiaries that would
+otherwise affect in any material respect the Transactions, and (vii) the receipt
+of any written notice of any offer to purchase any material assets of (or Equity
+Interests in) the Debtors; provided, however, that the delivery of any notice
+pursuant to this Section 4.1(h) shall not limit or otherwise affect the remedies
+available to the party receiving such notice under this Agreement;
+
+(i) not be in default under the DIP Orders, subject to any applicable grace and
+cure periods;
+
+(j) consult weekly (or more frequently as reasonably requested by the Supporting
+Lenders) with the Supporting Lenders’ legal counsel and financial advisor
+regarding the Debtors’ strategic planning, discussions, negotiations, proposals,
+or agreements with respect to the Restructuring; and
+
+(k) not:
+
+(i) object to, delay, postpone, challenge, reject, oppose or take any other
+action that would prevent, interfere with, delay or impede, directly or
+indirectly, in any material respect, the approval, acceptance or implementation
+of the Restructuring on the terms set forth in the Restructuring Term Sheet;
+
+(ii) solicit, negotiate, propose, enter into, consummate, file with the
+Bankruptcy Court, vote for or otherwise knowingly support, participate in or
+approve any Alternative Transaction; provided, however, that nothing in this
+Section 4.1(l) shall in any way limit the Debtors’ rights regarding any
+Alternative Transaction in accordance with Section 7.5;
+
+ 
+
+22
+
+
+
+--------------------------------------------------------------------------------
+
+(iii) take any actions where such taking would be (A) inconsistent with this
+Agreement, the Restructuring Term Sheet, the DIP Orders or the other Definitive
+Documents or (B) otherwise inconsistent with, or reasonably expected to prevent,
+interfere with, delay or impede the implementation or consummation of, the
+Restructuring;
+
+(iv) seek to amend or modify, or file a pleading seeking authority to amend or
+modify, the Definitive Documents in a manner that is inconsistent with this
+Agreement;
+
+(v) other than the Approved KEIP and the Approved KERP, seek the payment of any
+amount pursuant to a key employee incentive plan, key employee retention plan or
+other similar payments during the pendency of the Chapter 11 Cases, unless
+consented to by the DIP Agent; or
+
+(vi) file or seek authority to file any pleading inconsistent with the
+Restructuring or the terms of this Agreement.
+
+Section 4.2 Rights of the Debtors Unaffected. Nothing contained in this
+Agreement shall limit:
+
+(a) the rights of any Debtor under any applicable bankruptcy, insolvency, or
+similar proceeding, including appearing as a party in interest in any matter to
+be adjudicated in order to be heard concerning any matter arising in the
+Chapter 11 Cases, in each case, so long as the exercise of any such right is not
+inconsistent with the Company’s obligations hereunder;
+
+(b) the ability of any Debtor to assert or raise any objection in connection
+with any hearing in the Bankruptcy Court so long as such objection is not
+inconsistent with the Company’s obligations hereunder;
+
+(c) any right of any Debtor to take or direct any action relating to the
+maintenance, protection, or preservation of such Debtor; so long as such action
+is not inconsistent with the Company’s obligations hereunder; or
+
+(d) the ability of any Debtor to enforce any right, remedy, condition, consent
+or approval requirement under this Agreement or any Definitive Document.
+
+ARTICLE V
+
+REPRESENTATIONS AND WARRANTIES OF THE COMPANY
+
+Except as disclosed in (x) the Company SEC Documents publicly available prior to
+the date of this Agreement (but excluding any predictive, cautionary or
+forward-looking disclosures contained under the captions “risk factors,”
+“forward-looking statements” or any similar precautionary sections and any other
+disclosures contained therein that are predictive, cautionary or forward-looking
+in nature) or (y) the disclosure letter delivered by the Company to the
+Supporting Lenders simultaneously with the execution of this Agreement (the
+“Company
+
+ 
+
+23
+
+
+
+--------------------------------------------------------------------------------
+
+Disclosure Letter”), the Company hereby represents and warrants to the
+Supporting Lenders as follows:
+
+Section 5.1 Qualification, Organization, Subsidiaries, etc. The Company and each
+of its Subsidiaries is a legal entity duly organized, validly existing and in
+good standing (or the equivalent thereof, if applicable, in each case, with
+respect to the jurisdictions that recognize the concept of good standing or any
+equivalent thereof) under the Laws of the jurisdiction of its incorporation,
+organization or formation, as applicable, and has all requisite corporate or
+similar power and authority to own, lease and operate its properties and assets,
+and to carry on the Business as presently conducted by it. The Company and each
+of its Subsidiaries is duly qualified to do business and is in good standing (or
+the equivalent thereof, if applicable, in each case, with respect to the
+jurisdictions that recognize the concept of good standing or any equivalent
+thereof) as a foreign corporation or other entity in each jurisdiction where the
+ownership, leasing or operation of its assets or properties or the conduct of
+its portion of the Business requires such qualification, except where the
+failure to be so qualified or, where relevant, in good standing (x) has not been
+and would not reasonably be expected to be, individually or in the aggregate,
+material to the Business (taken as a whole) or (y) would not reasonably be
+expected to prevent or materially hinder or delay any of the Transactions or the
+transactions contemplated by any of the Definitive Documents or affect the
+ability of the Company and its Subsidiaries to perform their obligations under
+this Agreement, the Restructuring Term Sheet or any of the Definitive Documents.
+The Company does not own, directly or indirectly, any capital stock or other
+Equity Interests of any Person other than the Company Subsidiaries. Prior to the
+date of this Agreement, the Company has made available to the Supporting Lenders
+a complete and accurate copy of the organizational documents of the Company and
+each of its Subsidiaries as in effect on the date of this Agreement. None of the
+Company or its Subsidiaries is in violation of any of the provisions of its
+certificate of incorporation or bylaws (or equivalent organizational documents),
+in each case, except for violations that (i) have not been and would not
+reasonably be expected to be, individually or in the aggregate, material to the
+Business (taken as a whole) and (ii) would not reasonably be expected to prevent
+or materially hinder or delay any of the Transactions or the transactions
+contemplated by any of the Definitive Documents or affect the ability of the
+Company or its Subsidiaries to perform their respective obligations under this
+Agreement, the Restructuring Term Sheet or any of the Definitive Documents.
+
+Section 5.2 Capitalization. The authorized, issued and outstanding Equity
+Interests of the Company and each of its Subsidiaries is set forth on
+Section 5.2 of the Company Disclosure Letter. All such Equity Interests were
+validly issued and are fully paid and nonassessable (except to the extent such
+concepts are not applicable under the applicable Law of the Company’s or such
+Subsidiary’s jurisdiction of incorporation, formation or organization, as
+applicable). The Equity Interests of each of the Company’s Subsidiaries are
+owned beneficially and of record as set forth on Section 5.2 of the Company
+Disclosure Letter, free and clear of any Encumbrances (other than any
+restrictions imposed by applicable Law) and free of preemptive rights, rights of
+first refusal, subscription rights or similar right of any Person and transfer
+restrictions (other than transfer restrictions under applicable Law). Other than
+the Equity Interests reserved for issuance as set forth on Section 5.2 of the
+Company Disclosure Letter, none of the Company or its Subsidiaries has any
+Equity Interests reserved for issuance. There are no existing (a) Equity
+Interests in the Company or any of its Subsidiaries other than the Equity
+Interests set forth on
+
+ 
+
+24
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.2 of the Company Disclosure Letter, (b) without limitation to
+clause (a), rights, agreements or commitments of any character obligating the
+Company or any of its Subsidiaries or any of their Affiliates, as applicable, to
+issue, transfer or sell any Equity Interests in the Company’s Subsidiaries or
+securities convertible into, exchangeable or exercisable for any of the
+foregoing, (c) contractual obligations of the Company or any of its Subsidiaries
+to repurchase, redeem or otherwise acquire any of the Equity Interests in the
+Company or the Company’s Subsidiaries or (d) voting trusts or similar agreements
+to which the Company or any of its Subsidiaries is a party with respect to the
+voting of the Equity Interests set forth on Section 5.2 of the Company
+Disclosure Letter.
+
+Section 5.3 Corporate Authority.
+
+(a) The Company has all requisite corporate power and authority to execute and
+deliver, and to cause, directly or indirectly, any of the Company’s Subsidiaries
+or their Affiliates to execute and deliver, as applicable, and, subject to the
+Company obtaining necessary Bankruptcy Court approvals from and after the
+Petition Date, to carry out the Restructuring and to perform its respective
+obligations under this Agreement, each of the Definitive Documents and each
+other agreement, document or instrument contemplated hereby or thereby to which
+each such Person is a party. The execution and delivery of this Agreement, the
+consummation of the Transactions by the Company and/or any of its Subsidiaries
+or their applicable Affiliates have been duly and validly authorized and
+approved by all requisite corporate or similar action of such Person (subject,
+from and after the Petition Date, to the approval of the Bankruptcy Court).
+
+(b) The Company further represents and warrants that the respective boards of
+directors (or such other governing body) for the Company and each of its
+Subsidiaries has approved, by all requisite action, this Agreement and all of
+the Transactions, including the terms of the Restructuring set forth in the
+Restructuring Term Sheet, and, subject to any necessary Bankruptcy Court
+approvals, no other corporate or similar proceedings (pursuant to any such
+Person’s organizational documents or otherwise) on the part of any such Person
+is necessary to authorize the consummation of, and to consummate, the
+Transactions.
+
+(c) The Board has taken all necessary action to ensure that none of the
+Supporting Lenders will be an “interested stockholder” or prohibited from
+entering into or consummating a “business combination” or similar transaction
+with the Company (under Section 203 of the Delaware General Corporation Law or
+any other applicable Takeover Statute), as a result of the execution of this
+Agreement or the consummation of the Transactions in the manner contemplated
+hereby.
+
+(d) Subject to the Company obtaining necessary Bankruptcy Court approvals from
+and after the Petition Date, this Agreement and each such other document have
+been duly and validly executed and delivered by the Company and each of its
+applicable Subsidiaries and each of their applicable Affiliates, and, assuming
+the due authorization, execution and delivery of this Agreement and each such
+other documents by the relevant Supporting Lender or its Affiliates, as
+applicable, constitute a legal, valid and binding agreement of the Company and
+each of its applicable Subsidiaries and each of their applicable Affiliates,
+enforceable against each such Person in accordance with its terms, subject to
+applicable bankruptcy, insolvency,
+
+ 
+
+25
+
+
+
+--------------------------------------------------------------------------------
+
+reorganization, fraudulent transfer, moratorium and similar laws affecting
+creditors’ rights generally and subject, as to enforceability, to general
+principles of equity, including principles of commercial reasonableness, good
+faith and fair dealing (regardless of whether enforcement is sought in a
+proceeding at law or in equity) (the “Enforceability Limitations”).
+
+Section 5.4 Consents and Approvals. Except as expressly provided in this
+Agreement or in the Bankruptcy Code (including, with respect to the Company from
+and after the Petition Date, the approval of the Bankruptcy Court) and
+Section 6.3, no consent, waiver, approval, Order, permit or authorization
+(including those with respect to state licensing required to operate the
+Business) of, or declaration, filing or registration with, or notification to,
+any Governmental Entity, including in connection or compliance with the HSR Act
+(any of the foregoing, a “Consent”) is necessary or required on the part of
+(a) the Company or any of its Subsidiaries in connection with the execution and
+delivery of this Agreement or any other agreement, document or instrument
+contemplated hereby to which the Company or any of its Subsidiaries is a party
+and (b) any applicable Affiliate of the Company or any such Subsidiaries in
+connection with the execution and delivery of this Agreement or any other
+agreement, document or instrument contemplated hereby to which such Person is a
+party, or in connection with, in each case of the foregoing clauses (a) and (b),
+the performance of such Person’s obligations hereunder and thereunder, or the
+consummation of the Transactions (with or without notice or lapse of time, or
+both), except in each case of the foregoing clauses (a) and (b), (x) for such
+reports under the Exchange Act as may be required to be filed with the SEC in
+connection with this Agreement or the Transactions, (y) for such Consents as may
+be required under applicable state securities or “blue sky” Laws and the
+securities Laws of any foreign country or the rules and regulations of Nasdaq
+and (z) for such other Consents which if not obtained or made, (i) would not
+reasonably be expected to be, individually or in the aggregate, material to the
+Business (taken as a whole) and (ii) would not reasonably be expected to prevent
+or materially hinder or delay any of the Transactions or the transactions
+contemplated by any of the Definitive Documents or affect the ability of the
+Company or its Subsidiaries to perform their respective obligations under this
+Agreement, the Restructuring Term Sheet or any of the Definitive Documents.
+
+Section 5.5 No Violations. The execution or delivery of this Agreement or any
+agreement, document or instrument contemplated hereby by the Company or any of
+its Subsidiaries or any of their applicable Affiliates, the performance of such
+Person’s obligations hereunder and thereunder, and the consummation of the
+transactions contemplated hereby or thereby, as applicable, do not and will not
+(a) conflict with or result in any violation or breach of any provisions of the
+certificate of incorporation, bylaws or other organizational documents of any
+such Person, (b) with or without notice or lapse of time or both, conflict with
+or result in any breach or violation of or constitute a default under, or give
+rise to a right of, or result in, termination, modification, cancellation, first
+offer, first refusal or acceleration of any obligation or to the loss of a
+benefit under any Contract to which any such Person is a party or by or to which
+any of their respective properties, rights or assets, or the operations or
+conduct of the Business, are bound or subject or (c) conflict with or violate
+any Order or Law applicable to any such Person or their respective properties,
+rights or assets, or the operations or conduct of the Business, except in the
+case of clauses (b) and (c), for any conflicts, breaches, violations, defaults,
+rights or results that (x) have not been and would not reasonably be expected to
+be, individually or in the aggregate, material to the Business (taken as a
+whole) or (y) would not reasonably be expected to prevent or materially hinder
+or delay any of the Transactions or the
+
+ 
+
+26
+
+
+
+--------------------------------------------------------------------------------
+
+transactions contemplated by any of the Definitive Documents or affect the
+ability of the Company or its Subsidiaries or their Affiliates, as applicable,
+to perform their obligations under this Agreement, the Restructuring Term Sheet
+or any of the Definitive Documents.
+
+Section 5.6 SEC Filings; Financial Statements.
+
+(a) The Company has timely filed with or furnished to the SEC all reports,
+schedules, forms, statements, prospectuses, registration statements and other
+documents required to be filed with or furnished to the SEC by the Company since
+January 2, 2019 (collectively, together with any exhibits and schedules thereto
+and other information incorporated therein, the “Company SEC Documents”). No
+Subsidiary of the Company is required to file any report, schedule, form,
+statement, prospectus, registration statement or other document with the SEC or
+any similar Governmental Entity in any jurisdiction.
+
+(b) As of its filing date (or, if amended or superseded by a filing prior to the
+date of this Agreement, on the date of such amended or superseding filing), the
+Company SEC Documents filed or furnished prior to the date of this Agreement
+complied, and each Company SEC Document filed or furnished subsequent to the
+date of this Agreement will comply, in all material respects with the applicable
+requirements of Nasdaq, the Securities Act, the Exchange Act and the
+Sarbanes-Oxley Act, as the case may be.
+
+(c) As of its filing date (or, if amended or superseded by a filing prior to the
+date of this Agreement, on the date of such amended or superseding filing), each
+Company SEC Document filed or furnished prior to the date of this Agreement did
+not, and each Company SEC Document filed or furnished subsequent to the date of
+this Agreement will not, contain any untrue statement of a material fact or omit
+to state any material fact necessary in order to make the statements made
+therein, in light of the circumstances under which they were made, not
+misleading.
+
+(d) The Company is, and since January 2, 2019 has been, in compliance in all
+material respects with (i) the applicable provisions of the Sarbanes-Oxley Act
+and (ii) the applicable listing and corporate governance rules and regulations
+of Nasdaq.
+
+(e) The Company has made available to the Supporting Lenders copies of the
+following financial statements (collectively the “Financial Statements”):
+(i) the audited consolidated balance sheet of the Company as of December 31,
+2019 and the related consolidated statements of operations, comprehensive income
+(loss), stockholders’ equity (deficit) and cash flows for the fiscal year then
+ended; and (ii) the unaudited consolidated balance sheet of the Company as of
+March 31, 2020 and the related consolidated statements of operations,
+comprehensive income (loss), stockholders’ equity (deficit) and cash flows for
+the three (3) months then ended. Subject to the notes thereto, the Financial
+Statements were prepared, in all material respects, in conformity with GAAP and
+present fairly, in all material respects, the financial position of the Company
+(including its Subsidiaries) and its results of operations and cash flows as of
+the respective dates and for the respective periods referred to in the Financial
+Statements (in the case of quarterly Financial Statements, subject to normal
+year-end adjustments).
+
+ 
+
+27
+
+
+
+--------------------------------------------------------------------------------
+
+(f) Since January 2, 2019, each of the principal executive officer and principal
+financial officer of the Company (or each former principal executive officer and
+principal financial officer of the Company, as applicable) has made all
+certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and
+Sections 302 and 906 of the Sarbanes-Oxley Act and any related rules and
+regulations promulgated by the SEC and Nasdaq, and the statements contained in
+any such certifications are true and complete in all material respects as of the
+date on which they were made.
+
+Section 5.7 No Undisclosed Liabilities. There are no liabilities or obligations
+of the Company or any of its Subsidiaries of any kind whatsoever, whether
+accrued, contingent, absolute, determined, determinable or otherwise, that would
+be required by GAAP to be reflected on the consolidated balance sheet of the
+Company and its Subsidiaries, other than (a) liabilities or obligations
+disclosed and provided for in the Financial Statements or in the notes thereto,
+(b) liabilities or obligations incurred in the ordinary course of business
+consistent with past practice since March 31, 2020, (c) liabilities arising in
+connection with the Transactions, the Restructuring or the Chapter 11 Cases or
+(d) other liabilities or obligations that (x) have not been and would not
+reasonably be expected to be, individually or in the aggregate, material to the
+Business (taken as a whole), (y) would not reasonably be expected to prevent or
+materially hinder or delay any of the Transactions or the transactions
+contemplated by any of the Definitive Documents or affect the ability of the
+Company or its Subsidiaries to perform their obligations under this Agreement,
+the Restructuring Term Sheet or any of the Definitive Documents or (z) would not
+be discharged in the Chapter 11 Cases upon the Effective Date of the Plan. There
+are no off-balance sheet arrangements of any type required to be disclosed
+pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities
+Act that have not been so disclosed in the Company SEC Documents.
+
+Section 5.8 Absence of Certain Changes. Except to the extent arising out of or
+relating to the Chapter 11 Cases, this Agreement or the Transactions, from
+January 2, 2019 through the date of this Agreement, the Business has been
+conducted in all material respects in the ordinary course of business consistent
+with past practice, and there has not been:
+
+(a) any material damage, destruction or other casualty loss with respect to any
+asset or property owned, leased or otherwise used by the Company or its
+Subsidiaries, whether or not covered by insurance;
+
+(b) any declaration, setting aside or payment of any dividend or other
+distribution with respect to any shares of capital stock or other Equity
+Interests of the Company or its Subsidiaries (except for dividends or other
+distributions by any direct or indirect wholly owned Subsidiary to such Person
+or to any wholly owned Subsidiary of such Person), or any repurchase, redemption
+or other acquisition by the Company or its Subsidiaries of any outstanding
+shares of capital stock or other Equity Interests of the Company or its
+Subsidiaries;
+
+(c) any material change in any method of accounting or accounting practice by
+the Company or its Subsidiaries;
+
+(d) (i) any material increase in the compensation payable or to become payable
+to the officers or employees of any of the Company or its Subsidiaries or
+material
+
+ 
+
+28
+
+
+
+--------------------------------------------------------------------------------
+
+increases in the benefits of such officers or employees (except for increases in
+the compensation of non-officer employees in the ordinary course of business and
+consistent with past practice), (ii) any entrance into, adoption, material
+amendment or termination of any Debtor Plan (or any arrangement that would have
+been a Debtor Plan were it in effect as of the date of this Agreement) that is
+or would be material to the Company and its Subsidiaries, taken as a whole or
+(iii) any actions taken by the Company and its Subsidiaries to accelerate the
+vesting or lapsing of restrictions or payment, or fund or in any other way
+secure the payment, of any material compensation or benefits under any Debtor
+Plan, taken as a whole, except, in each case, to the extent required by
+applicable Laws;
+
+(e) any agreement to do any of the foregoing; or
+
+(f) any event, development, change or effect that has had or would reasonably be
+expected to have, individually or in the aggregate, a Material Adverse Effect.
+
+Section 5.9 Brokers or Finders. Other than Jefferies LLC, none of the Company or
+its Subsidiaries has employed or engaged any investment banker, broker or finder
+who is entitled to any brokerage, finder’s or other fee or any commission in
+connection with this Agreement, the Restructuring Term Sheet, the Definitive
+Documents, the transactions contemplated by this Agreement or any other
+agreement, document or instrument contemplated hereby or thereby based upon
+arrangements made by or on behalf of the Company or its Subsidiaries or any of
+their Affiliates.
+
+Section 5.10 Litigation.
+
+(a) Except (x) as set forth on Section 5.10(a) of the Company Disclosure Letter
+and (y) for the Chapter 11 Cases, there are no Causes of Action pending or, to
+the Knowledge of the Debtors, threatened, and no facts (including any defects or
+quality issues related to any former or current Products) exist which would give
+rise to any such Causes of Action, against any of the Company or its
+Subsidiaries or any of their respective properties, rights or assets, or that
+involves or relates to any of the Transactions or the operations or conduct of
+the Business, except those which have not been and would not reasonably be
+expected to be, individually or in the aggregate, material to the Company or any
+of its Subsidiaries. None of the Company, any of its Subsidiaries, any
+applicable Affiliates or the Business is subject to any outstanding Order, and
+there are no judgments or decrees of or settlement agreements with, any
+Governmental Entity, except those which have not been and would not reasonably
+be expected to be, individually or in the aggregate, material to the Company and
+its Subsidiaries.
+
+(b) There is no (i) settlement agreement involving the Company or any of its
+Subsidiaries that impedes or limits the Company or any of its Subsidiaries to
+operate in the ordinary course of business, as currently conducted, or
+(ii) Cause of Action of any nature pending or, to the Knowledge of the Debtors,
+threatened against any Person who has a contractual right or a right to
+indemnification from the Company or any of its Subsidiaries related to facts and
+circumstances existing prior to the date of this Agreement, nor is there any
+reasonable basis therefor, in each case, except as would not reasonably be
+expected to be, individually or in the aggregate, material to the Company of any
+of its Subsidiaries.
+
+ 
+
+29
+
+
+
+--------------------------------------------------------------------------------
+
+(c) Notwithstanding the foregoing, no representation or warranty is made under
+this Section 5.10 in respect of any (i) Intellectual Property matters, which are
+addressed in Section 5.11, (ii) employee benefits matters, which are addressed
+in Section 5.16, (iii) environmental matters, which are addressed in
+Section 5.18, (iv) healthcare regulatory matters, which are addressed in
+Section 5.19 or (v) Tax matters, which are addressed in Section 5.20.
+
+Section 5.11 Intellectual Property.
+
+(a) Section 5.11(a) of the Company Disclosure Letter sets forth a true and
+complete list, as of the date hereof, of all Registered Intellectual Property
+that is (i) owned or purported to be owned by, or (ii) exclusively licensed to,
+the Company or any of its Subsidiaries (the “Company Registered Intellectual
+Property, setting forth (A) the legal and record owner(s), (B) the registration
+or application number (as applicable), (C) the registration or application date
+(as applicable) and (D) the jurisdiction in which such item is registered or
+pending or, with respect to internet domain names, the applicable internet
+domain name registrar. All Company Registered Intellectual Property is
+subsisting and (other than Registered Intellectual Property constituting
+applications) valid, and to the Knowledge of the Debtors, enforceable. There is
+no, and since January 1, 2017, there has been no, Cause of Action or notice of
+any objection or claim asserted in writing or, to the Knowledge of the Debtors,
+threatened by any Person, seeking to cancel, materially limit, or challenge the
+ownership, validity or enforceability of any Company Registered Intellectual
+Property, and the Company and each of its applicable Subsidiaries have made
+timely payment of all registration, maintenance, renewal and filing fees
+required with respect to the Company Registered Intellectual Property.
+
+(b) The Company and its Subsidiaries, taken together, solely and exclusively own
+all Company Intellectual Property free and clear of any Encumbrances (other than
+Permitted Encumbrances), and no other Person has any joint ownership interest in
+or to any of the Company Intellectual Property. None of the Company Intellectual
+Property is subject to any Order adversely affecting or restricting the validity
+or enforceability thereof, or any of the Company’s or any of its Subsidiaries’
+ownership or use thereof.
+
+(c) The Company and its Subsidiaries own or have sufficient and valid right to
+use all Intellectual Property that is material to or necessary for the conduct
+of the Business as currently conducted and as currently planned to be conducted,
+all of which material Intellectual Property rights shall survive the
+consummation of the transactions contemplated by this Agreement without
+termination or substantial acceleration of any obligation thereunder.
+
+(d) Except as has not resulted in, and would not reasonably be expected to
+result in, material liability for the Company or any of its Subsidiaries or
+disruption to the Business, since the January 1, 2017, (i) neither (A) the
+conduct of the Business, nor (B) the administration, use, supply, manufacture,
+import, marketing, commercialization or other exploitation of any of the
+Products (including by any applicable customers, suppliers or contractors), has
+infringed, misappropriated, or violated any Intellectual Property of any other
+Person, (ii) to the Knowledge of the Debtors, no Person has infringed,
+misappropriated, or otherwise violated any Company Intellectual Property and
+(iii) none of the Company nor any of its Subsidiaries have sent or received any
+written claim, notice, demand to license, or similar
+
+ 
+
+30
+
+
+
+--------------------------------------------------------------------------------
+
+communication alleging or suggesting any infringement, misappropriation, or
+other violation of the type described in clauses (i) or (ii) of this
+Section 5.11(d).
+
+(e) The Company and each of its Subsidiaries have, at all times since January 1,
+2017, taken commercially reasonable efforts to protect the confidentiality of
+all material Trade Secrets that are owned, used or held by any of the Company or
+any of its Subsidiaries, and no such material Trade Secrets have been used by,
+disclosed to or otherwise discovered by any Person except pursuant to valid and
+enforceable non-disclosure and confidentiality agreements (or obligations
+arising by operation of Law) that have not, to the Knowledge of the Debtors,
+been breached by such Persons.
+
+(f) Each Person who contributed to the development or creation of any material
+Company Intellectual Property used in or held for use in the conduct of the
+Business as currently conducted or as currently planned to be conducted has
+executed a valid and enforceable agreement containing an irrevocable present
+assignment conveying to one or more of the Company or its Subsidiaries (or has
+otherwise assigned by operation of Law) all of such Person’s right, title and
+interest in and to such Intellectual Property. To the Knowledge of the Debtors,
+no current or former employee or contractor of any of the Company or any of its
+Subsidiaries retains or claims to retain any ownership interest in or to any
+Company Intellectual Property.
+
+(g) None of the Company Intellectual Property is subject to any obligation under
+any Contract or other present or contingent obligation as a result of being
+developed using any funding or support from, or any arrangement with, a
+Governmental Entity or nonprofit organization.
+
+Section 5.12 Data Privacy and Cybersecurity; IT Assets.
+
+(a) The Company IT Assets are sufficient for the current and currently
+anticipated needs of the Business, and since January 1, 2017, there has been no
+unauthorized access to or unauthorized use of any (i) IT Assets owned, used or
+held for use by the Company or any of its Subsidiaries, (ii) information of, or
+collected, stored or processed by or on behalf of, the Company or its
+Subsidiaries and collected, stored or processed by such IT Assets, or
+(iii) confidential or proprietary information of the Company or any of its
+Subsidiaries, in each case, in a manner that, individually or in the aggregate,
+has resulted in or would reasonably be expected to result in material liability
+or disruption of the Business; provided that the foregoing representations with
+respect to IT Assets owned or controlled by third-party service providers are
+given only to the Knowledge of the Debtors. None of the IT Assets owned, used or
+held for use by the Company or any of its Subsidiaries since January 1, 2017
+contain or make available any material disabling codes or instructions, spyware,
+Trojan horses, worms, viruses or other software routines that facilitate or
+cause unauthorized access to, or disruption, impairment, disablement, or
+destruction of, Software, data or other materials.
+
+(b) The Company and each of its Subsidiaries have established and implemented
+appropriate written policies and organizational, physical, administrative and
+technical measures regarding privacy, cyber security and data security, and are
+no less protective than (i) reasonable practices in the industry or (ii) any
+written commitments of the Company or
+
+ 
+
+31
+
+
+
+--------------------------------------------------------------------------------
+
+any of its Subsidiaries (such policies and measures, collectively, the “Privacy
+and Security Policies”).
+
+(c) At all times since January 1, 2017, except as has not resulted in, and would
+not reasonably be expected to result in, individually or in the aggregate,
+material liability or an obligation to notify any Governmental Entity, (i) the
+Company and each of its Subsidiaries have complied in all respects with all of
+their respective Privacy and Security Policies and contractual obligations, and
+with all applicable Laws (including (A) the Health Insurance Portability and
+Accountability Act of 1996, as amended by the Health Information Technology for
+Economic and Clinical Health Act of 2009, and their implementing regulations and
+agency guidance and (B) any other applicable state or foreign privacy laws), in
+each case, regarding Personal Information, including with respect to the
+collection, use, storage, processing, transmission, transfer (including
+cross-border transfers), disclosure and protection of Personal Information and
+(ii) no Person has gained unauthorized access to or misused any Personal
+Information collected, stored or processed by or on behalf of, the Company or
+any of its Subsidiaries.
+
+Section 5.13 Real Property Leases.
+
+(a) None of the Company or any of its Subsidiaries owns any real property.
+
+(b) Section 5.13(b) of the Company Disclosure Letter sets forth a complete and
+correct list, as of the date of this Agreement, of each Contract pursuant to
+which the Company or any of its Subsidiaries leases, subleases or occupies any
+real property (the “Leases”). None of the Company or any of its Subsidiaries has
+subleased, licensed or otherwise granted any Person the right to use or occupy
+any real property subject to a Lease or any material portion thereof. Each Lease
+is valid, binding and in full force and effect, subject to the Enforceability
+Limitations, and no uncured default of a material nature on the part of the
+Company or any of its Subsidiaries or, to the Knowledge of the Debtors, the
+landlord thereunder exists with respect to any Lease. The Company and its
+Subsidiaries have good and valid leasehold interests in or contractual rights to
+use or occupy, subject to the terms of the applicable Lease, each real property
+subject to the Leases.
+
+Section 5.14 Material Contracts.
+
+(a) Section 5.14(a) of the Company Disclosure Letter contains a complete and
+correct list, as of the date of this Agreement, of each Contract described below
+in this Section 5.14(a) under which the Company or any of its Subsidiaries has
+any current or future rights, responsibilities, obligations or liabilities (in
+each case, whether contingent or otherwise) or to which the Company or any of
+its Subsidiaries is a party or to which any of their respective properties or
+assets is subject, other than the Debtor Plans listed on Section 5.16(a) of the
+Company Disclosure Letter (all Contracts of the type described in this
+Section 5.14(a), whether or not set forth on Section 5.14(a) of the Company
+Disclosure Letter, being referred to herein as the “Material Contracts”):
+
+ 
+
+32
+
+
+
+--------------------------------------------------------------------------------
+
+(i) requires expenditures by the Company or any of its Subsidiaries involving
+consideration in excess of two hundred and fifty thousand dollars ($250,000) in
+the next twelve (12)-month period;
+
+(ii) provides for payments to be received by the Company or any of its
+Subsidiaries in excess of two hundred and fifty thousand dollars ($250,000) in
+any twelve (12)-month period;
+
+(iii) relates to the incurrence by the Company or any of its Subsidiaries of any
+Indebtedness or any capitalized lease obligations in excess of fifty thousand
+dollars ($50,000);
+
+(iv) relates to the acquisition or disposition outside the ordinary course of
+business of any assets or any business, or any capital stock of any enterprise
+(whether by merger, sale or purchase of stock, sale or purchase of assets or
+otherwise) entered into in the past three (3) years, in each case, in excess of
+two hundred and fifty thousand dollars ($250,000);
+
+(v) relates to the future acquisition or disposition of any material assets or
+properties (whether by merger, sale or purchase of stock, sale or purchase of
+assets or otherwise, including any option to acquire, sell, lease or license any
+material assets or properties of the Business), other than (A) in the ordinary
+course of business consistent with past practice, (B) as contemplated by this
+Agreement, the Restructuring Term Sheet or any Definitive Document or (C) to the
+extent permitted under applicable Law, any non-disclosure or similar agreement
+entered into in connection with the process by which the Company or any of its
+Subsidiaries, any of their respective Affiliates or any Representatives of any
+of the foregoing solicited, discussed or negotiated strategic alternatives prior
+to the date of this Agreement (including the Transactions or any other
+transaction prior to the date of this Agreement);
+
+(vi) is a joint venture, profit-sharing, partnership, collaboration,
+co-promotion, commercialization, research, development or other similar
+agreement involving the sharing of profits or expenses (other than clinical
+trial agreements, contract manufacturing agreements or other similar
+subcontracting arrangements entered into in the ordinary course of business);
+
+(vii) is a Lease;
+
+(viii) (A) may require the Supporting Lenders to pay milestones, royalties or
+other contingent payments based on any research, testing, development,
+regulatory filings or approval, sale, distribution, marketing, commercial
+manufacture or other similar occurrences, developments, activities or events
+with respect to any Product, in each case, which payments are in an amount
+having an expected value in excess of fifty thousand dollars ($50,000) during
+the fiscal year ending December 31, 2020 or any fiscal year thereafter or
+(B) grants to any Person a right of first refusal, right of first negotiation,
+option to purchase, option to license, or any other similar rights with respect
+to any Product;
+
+ 
+
+33
+
+
+
+--------------------------------------------------------------------------------
+
+(ix) requires the Company or any of its Subsidiaries to purchase from a third
+Person their total requirements of any products or services;
+
+(x) with any Governmental Entity;
+
+(xi) (A) limits or purports to limit, in any material respect, the freedom of
+the Business to engage or compete in any line of business or with any Person or
+in any geographic area, (B) contains exclusivity or “most favored nation”
+obligations in favor of any Person other than the Company or its Subsidiaries or
+restrictions to which the Business is subject or (C) contains any other
+provisions restricting or purporting to restrict the ability of the Company or
+its Subsidiaries to sell, market, distribute, promote, manufacture, develop,
+commercialize, or test or research the Products, directly or indirectly through
+third parties (other than any such restrictions or purported restrictions that
+have a de minimis effect on the Business);
+
+(xii) is a material Contract pursuant to which the Company or any of its
+Subsidiaries grants or receives any license, covenant not to sue or similar
+right with respect to, or governs or restricts the development, ownership, use,
+practice or enforcement of, any Intellectual Property (other than non-exclusive
+licenses to use Software on standardized terms that are generally commercially
+available);
+
+(xiii) relates to sales and distribution activities conducted by a third-party
+wholesaler or distributor that are material to the Business;
+
+(xiv) relates to the ongoing supply or manufacturing of clinical and commercial
+quantities of any of the Products, the termination of which would reasonably be
+expected to be material to the Business (taken as a whole);
+
+(xv) other than the Contracts described in Section 5.14(a)(iii), under which the
+Company or any of its Subsidiaries or any of their Affiliates have borrowed or
+loaned money, or any note, bond, indenture, mortgage or any guarantee of such
+indebtedness, in each case, relating to amounts in excess of one hundred
+thousand dollars ($100,000);
+
+(xvi) relates to any settlement or stipulation of any Cause of Action against
+the Company or any of its Subsidiaries by any other Person, other than
+settlement agreements for cash that do not exceed twenty-five thousand dollars
+($25,000) individually as to any such settlement or stipulation (excluding
+amounts paid by insurers) or one hundred thousand dollars ($100,000)
+individually as to any such settlement or stipulation (including any amounts
+paid by insurers), entered into since January 2, 2019; and
+
+(xvii) provides for indemnification of any officer, director or employee of the
+Company or its Subsidiaries or any of their Affiliates other than in the
+ordinary course of business.
+
+(b) True and complete copies of each Material Contract, together with all
+amendments, modifications or supplements thereto, as of the date of this
+Agreement have been
+
+ 
+
+34
+
+
+
+--------------------------------------------------------------------------------
+
+made available to the Supporting Lenders. None of the Company or any of its
+Subsidiaries has received any written notice of termination (or intent to
+terminate) with respect to a Material Contract from any third Person party to
+such Material Contract. No event has occurred which, with the passage of time or
+the giving of notice, or both, would constitute a default under or a violation
+of any Material Contract or would cause the acceleration of any obligation of
+the Company or any of its Subsidiaries or their applicable Affiliates or the
+creation of an Encumbrance (other than Permitted Encumbrances) upon any assets
+or properties of the Company or any of its Subsidiaries, except for such events
+that have not had and would not reasonably be expected to have, individually or
+in the aggregate, a Material Adverse Effect. To the Knowledge of the Debtors, as
+of the date of this Agreement, no other party to any Material Contract is in
+breach of or default under the terms of any Material Contract where such breach
+or default has had or would reasonably be expected to have, individually or in
+the aggregate, a Material Adverse Effect. Each Material Contract is a valid,
+binding and enforceable obligation of the applicable the Company or its
+applicable Subsidiaries or their applicable Affiliates party thereto and, to the
+Knowledge of the Debtors, of each other party thereto, and is in full force and
+effect, subject to the Enforceability Limitations.
+
+Section 5.15 Compliance with Laws; Anticorruption; Permits; Trade Compliance.
+
+(a) The Company and each of its Subsidiaries and their applicable Affiliates are
+and since January 1, 2015 have been, operating the Business in compliance with
+all applicable Laws and Orders, including (i) applicable Law administered or
+enforced by the FDA, (ii) applicable Laws relating to the Medicare and Medicaid
+programs, any other federal healthcare programs, and any state healthcare or
+health insurance programs, (iii) applicable Laws relating to healthcare fraud
+and abuse, including the federal Anti-Kickback Statute (42 U.S.C. §
+1320a-7b(b)), the federal False Claims Act (31 U.S.C. §§ 3729 et seq.), the
+federal Stark Law (42 U.S.C. § 1395nn), the federal False Statements Statute (42
+U.S.C. § 1320a-7b(a)), the Exclusion Laws (42 U.S.C. § 1320a-7), the Beneficiary
+Inducement Statute (42 U.S.C. § 1320a-7a(a)(5)), and the Civil Monetary
+Penalties Law (42 U.S.C. § 1320a-7a), (iv) applicable Laws relating to billing
+or claims for reimbursement submitted to any government or third-party payor,
+(v) applicable Laws relating to fraudulent, abusive or unlawful practices
+connected in any way with the provision or marketing of healthcare items or
+services, (vi) Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h) and similar
+gift and disclosure applicable Laws of any Governmental Entity, and
+(vii) applicable Laws relating to health information privacy, including the
+Health Insurance Portability and Accountability Act of 1996 (including its
+underlying rules) and the Health Information Technology for Economic and
+Clinical Health Act of 2009, in each case of clauses (i)-(vii), except as has
+not had and would not reasonably be expected to have, individually or in the
+aggregate, a Material Adverse Effect. Since January 1, 2015, none of the Company
+or its Subsidiaries, nor any of their applicable Affiliates, has received any
+written notice of or, to the Knowledge of the Debtors, been charged with any
+violation of any Laws, except as has not been and would not reasonably be
+expected to be, individually or in the aggregate, material to the Business
+(taken as a whole).
+
+(b) The Company and its Subsidiaries and their applicable Affiliates are and,
+since January 1, 2015, have been operating the Business in compliance with the
+U.S. Foreign Corrupt Practices Act and any other applicable anticorruption Laws,
+except where the failure to be in compliance has not been and would not
+reasonably be expected to be, individually or in the
+
+ 
+
+35
+
+
+
+--------------------------------------------------------------------------------
+
+aggregate, material to the Business (taken as a whole). Since January 1, 2015,
+none of the Company or its Subsidiaries, nor any of their applicable Affiliates,
+nor to the Knowledge of the Debtors, any officer or director of any of the
+foregoing, while acting at the direction of such Person, (a) has made, paid or
+received any unlawful bribes, kickbacks or other similar payments or (b) has
+made or paid any contributions, directly or indirectly, to a domestic or foreign
+political party or candidate, except, in each case, as has not been and would
+not reasonably be expected to be, individually or in the aggregate, material to
+the Business (taken as a whole).
+
+(c) The Company and its Subsidiaries have all Business Permits, except where the
+failure to possess such Business Permits has not had and would not reasonably be
+expected to have, individually or in the aggregate, a Material Adverse Effect.
+None of the Company or its Subsidiaries, nor any of their applicable Affiliates,
+is in default or violation of any term, condition or provision of any Business
+Permit, except as has not had and would not reasonably be expected to have,
+individually or in the aggregate, a Material Adverse Effect. Except as has not
+had and would not reasonably be expected to have, individually or in the
+aggregate, a Material Adverse Effect, all Business Permits are valid and in full
+force and effect, subject to the Enforceability Limitations, and, to the
+Knowledge of the Debtors, no condition exists that with notice or lapse of time
+or both would constitute a default of any term, condition or provision of any
+such Business Permits to which the Company or any of its Subsidiaries or any of
+their applicable Affiliates is a party. Since January 1, 2015, none of the
+Company or its Subsidiaries, or any of their applicable Affiliates, has received
+any written notice of any Cause of Action or investigation relating to the
+revocation, nonrenewal, suspension or modification of any Business Permit,
+except as has not had and would not reasonably be expected to have, individually
+or in the aggregate, a Material Adverse Effect.
+
+(d) Except as has not and would not reasonably be expected to have, individually
+or in the aggregate, a Material Adverse Effect, the Company and its Subsidiaries
+and their applicable Affiliates are and, since January 1, 2015, have been in
+compliance with: (i) all Laws or regulations regarding the importation of goods,
+including the U.S. import laws administered by U.S. Customs and Border
+Protection; and (ii) all other applicable Laws, including the Export
+Administration Regulations administered by the U.S. Department of Commerce.
+Except as has not and would not reasonably be expected to have, individually or
+in the aggregate, a Material Adverse Effect, none of the Company or its
+Subsidiaries nor any of their applicable Affiliates, nor to the Knowledge of the
+Debtors, any officer or director of any of the foregoing Persons, is (i) a
+person or entity with whom U.S. persons or entities are restricted from doing
+business under regulations of OFAC (including those named on OFAC’s Specially
+Designated and Blocked Persons List) or under any statute, executive order
+(including the September 24, 2001, Executive Order Blocking Property and
+Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support
+Terrorism), regulation, or other governmental action, (ii) a “specially
+designated global terrorist” or other person listed in Appendix A to Chapter V
+of 31 C.F.R., as the same has been from time to time updated and amended or
+(iii) a person either (A) included within the term “designated national” as
+defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or
+(B) designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order
+No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or a person
+similarly designated under any related enabling legislation or any other similar
+executive orders.
+
+ 
+
+36
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.16 Employee Benefit Matters.
+
+(a) Section 5.16(a) of the Company Disclosure Letter sets forth a complete and
+correct list of each Debtor Plan that is an “employee benefit plan” within the
+meaning of Section 3(3) of ERISA, an equity-based plan, or an executive
+employment or severance plan or agreement. With respect to each such Debtor
+Plan, the Company has made available to the Supporting Lenders, to the extent
+applicable, accurate and complete copies of (i) the Debtor Plan document,
+including any amendments thereto, and all related trust documents, insurance
+contracts or other funding vehicles, (ii) a written description of such Debtor
+Plan if such plan is not set forth in writing, (iii) the most recently prepared
+actuarial report, (iv) all material correspondence to or from any Governmental
+Entity received since January 1, 2017 with respect to any Debtor Plan, (v) the
+most recent summary plan description together with any summaries of all material
+modifications thereto, (vi) the most recent IRS determination or opinion letter
+issued and (vii) the most recent annual report (Form 5500 or 990 series and all
+schedules and financial statements attached thereto).
+
+(b) (i) Each Debtor Plan (including any related trusts) has been established,
+operated and administered in accordance with its terms and in compliance with
+applicable Law, including ERISA and the Code, (ii) all contributions or other
+amounts payable by the Company or any of its Subsidiaries with respect to any
+Debtor Plan in respect of current or prior plan years have been paid or accrued
+in accordance with generally accepted accounting principles and (iii) there are
+no pending or, to the Knowledge of the Debtors, threatened claims (other than
+routine claims for benefits) or proceedings by a Governmental Entity by, on
+behalf of or against any Debtor Plan or any trust related thereto which would
+reasonably be expected to result in any material liability to the Company or any
+of its Subsidiaries.
+
+(c) Each ERISA Plan that is intended to be qualified under Section 401(a) of the
+Code has been determined by the IRS to be qualified under Section 401(a) of the
+Code and, to the Knowledge of the Debtors, nothing has occurred that would
+adversely affect the qualification or tax exemption of any such Debtor Plan.
+With respect to any ERISA Plan, none of the Company or any of its Subsidiaries
+has engaged in a transaction in connection with which the Company or any of its
+Subsidiaries reasonably could be subject to either a civil penalty assessed
+pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to
+Section 4975 or 4976 of the Code.
+
+(d) None of the Company or any of its Subsidiaries nor any ERISA Affiliate has,
+within the six (6)-year period prior to the date of this Agreement, ever
+maintained, established, sponsored, participated in, contributed to, or been
+obligated to contribute to, or otherwise incurred any obligation or liability
+(including any contingent liability) under any “multiemployer plan” (as defined
+in Section 3(37) of ERISA) or any plan that is subject to Section 302 or Title
+IV of ERISA or Section 412 of the Code. None of the Company or any of its
+Subsidiaries nor any ERISA Affiliate has any actual or potential withdrawal
+liability for any complete or partial withdrawal (as defined in Sections 4203
+and 4205 of ERISA) from any multiemployer plan.
+
+(e) Except as required by applicable Law, no Debtor Plan provides retiree or
+post-employment medical, disability, life insurance or other welfare benefits to
+any Person, and
+
+ 
+
+37
+
+
+
+--------------------------------------------------------------------------------
+
+none of the Company or any of its Subsidiaries has any obligation to provide
+such benefits. To the extent that the Company or any of its Subsidiaries
+sponsors such plans, the Company or the applicable Subsidiary has reserved the
+right to amend, terminate or modify at any time each Debtor Plan that provides
+retiree or post-employment disability, life insurance or other welfare benefits
+to any Person.
+
+(f) Neither the execution and delivery of this Agreement, shareholder or other
+approval of this Agreement or the Plan nor the consummation of the transactions
+contemplated by this Agreement, whether alone or in combination with any other
+event, will (i) entitle any current or former employee, director, officer or
+independent contractor of the Company or any of its Subsidiaries to severance
+pay or any material increase in severance pay, (ii) accelerate the time of
+payment or vesting or materially increase the amount of compensation due to any
+such current or former employee, director, officer or independent contractor,
+(iii) directly or indirectly cause the Company or any of its Subsidiaries to
+transfer or set aside any assets to fund any material benefits under any Debtor
+Plan, (iv) otherwise give rise to any material liability under any Debtor Plan
+or (v) limit or restrict the right to merge, materially amend, terminate or
+transfer the assets of any Debtor Plan on or following the Effective Date.
+
+(g) Neither the Company nor any of its Subsidiaries has any obligation to
+provide, and no Debtor Plan or other agreement provides any individual with the
+right to, a gross up, indemnification, reimbursement or other payment for any
+excise or additional taxes, interest or penalties incurred pursuant to
+Section 409A or Section 4999 of the Code or due to the failure of any payment to
+be deductible under Section 280G of the Code.
+
+(h) No Debtor Plan is maintained outside the jurisdiction of the United States
+or covers any employees or other service providers of the Company or any of its
+Subsidiaries who reside or work outside of the United States.
+
+Section 5.17 Labor Matters.
+
+(a) The Company has made available to the Supporting Lenders a true, correct and
+complete list, by employee identification number, of all employees employed by
+the Company and its Subsidiaries on the date of this Agreement, identifying as
+to each a job title, years of service, current amount or rate of compensation
+and location of employment.
+
+(b) As of the date of this Agreement, neither the Company nor any of its
+Subsidiaries is a party to, or bound by, any collective bargaining agreement or
+other agreement with any labor union or like organization, and to the Knowledge
+of the Debtors, there are no activities or proceedings by any individual or
+group of individuals, including representatives of any labor organizations, or
+labor unions, to organize any employees of the Company or any of its
+Subsidiaries. As of the date of this Agreement, there is no pending or, to the
+Knowledge of the Debtors, threatened labor strike, slowdown, lockout or work
+stoppage, unfair labor practice or other labor dispute, or labor arbitration or
+grievance.
+
+(c) The Company and each of its Subsidiaries is in compliance in all material
+respects with all applicable Laws respecting labor, employment and employment
+practices, terms and conditions of employment, wages and hours, and occupational
+safety and health. Neither the
+
+ 
+
+38
+
+
+
+--------------------------------------------------------------------------------
+
+Company nor any of its Subsidiaries has incurred any liability or obligation
+under the Worker Adjustment and Retraining Notification Act of 1988, as amended,
+and the regulations promulgated thereunder or any similar state, local or
+foreign Law relating to plant closings or mass layoffs that remains unsatisfied.
+
+Section 5.18 Environmental Matters.
+
+(a) Except as has not and would not reasonably be expected to have, individually
+or in the aggregate, a Material Adverse Effect:
+
+(i) each real property operated by the Company or any of its Subsidiaries and
+used in the conduct of their respective businesses: (i) is in compliance with
+all applicable Environmental Laws, except as has not and would not reasonably be
+expected to have, individually or in the aggregate, a Material Adverse Effect;
+(ii) is not the subject of any pending written notice from any Governmental
+Entity alleging the violation of any applicable Environmental Law; (iii) is not
+currently subject to any Orders arising under any Environmental Law; and
+(iv) has not had any emissions or discharges of Hazardous Substances except as
+permitted under applicable Environmental Laws;
+
+(ii) no order, decree, settlement or lien is pending or, to the Knowledge of the
+Debtors, threatened, against the Company or any of its Subsidiaries relating to
+Liability under any Environmental Law that has not been remedied as of the date
+of this Agreement; and
+
+(iii) there are no other circumstances or conditions that would reasonably be
+expected to result in any claims, liability, investigations, costs or
+restrictions on the ownership, use, or transfer of the Company’s or any of its
+Subsidiaries’ assets or properties in connection with any Environmental Law.
+
+(b) The Company has made available to the Supporting Lenders copies of all
+environmental reports, studies, assessments, sampling data, memoranda and other
+information in its possession.
+
+Section 5.19 FDA and Related Regulatory Matters.
+
+(a) Each of the Company and its Subsidiaries is conducting and has at all times
+conducted its business and operations in compliance with the FDCA, 21 U.S.C.
+§301 et. seq., and all applicable regulations promulgated by the FDA
+(collectively, “FDA Law and Regulation”), and the Laws and regulations of other
+similar Governmental Entities that regulate the safety and effectiveness of
+medical device and biological products. Each Medical Device, as that term is
+defined in 21 U.S.C. § 321(h) of the FDCA, that is manufactured, tested,
+distributed and/or marketed by the Company and its Subsidiaries, is being
+manufactured, tested, distributed and/or marketed by the Company and its
+Subsidiaries in material compliance with applicable FDA Law and Regulation and
+the Laws and regulations of other similar Governmental Entities that regulate
+the safety and effectiveness of medical device and biological products,
+including those relating to (i) good manufacturing practices, (ii) regulatory
+approvals or clearances to
+
+ 
+
+39
+
+
+
+--------------------------------------------------------------------------------
+
+market Medical Devices, (iii) investigational studies, (iv) labeling, (v) record
+keeping, and (vi) filing of reports to FDA or other similar Governmental
+Entities.
+
+(b) Section 5.19(b) of the Company Disclosure Letter sets forth a list of all
+registrations, clearances and approvals issued under the FDCA (“FDCA Permits”)
+and held exclusively by the Company or its Subsidiaries, including pre-market
+notifications under section 510(k) of the FDCA (21 U.S.C. § 360(k)) (“510(k)s”)
+and pre-market approval applications and associated supplements approved in
+accordance with 21 U.S.C. § 360(e) (“PMAs”). Such listed FDCA Permits are the
+only FDCA Permits that are required for the Company or its Subsidiaries to
+conduct the Business in the United States. Each such FDCA Permit is in full
+force and effect and no suspension, revocation, cancellation or withdrawal of
+such FDCA Permit is threatened and there is no basis for believing that such
+FDCA Permit will be suspended, revoked, cancelled or withdrawn. The Company or
+its Subsidiaries exclusively own all 510(k)s and PMAs for the Products, and the
+FDA has not threatened in writing to suspend or revoke any such 510(k)s or PMAs.
+
+(c) The Company and its Subsidiaries have paid all fees pursuant to the Medical
+Device User Fee Amendments and complied with the Device Facility Registration of
+Establishment regulations and all devices of the Company and its Subsidiaries
+are appropriately listed with FDA.
+
+(d) Except as set forth on Section 5.19(d) of the Company Disclosure Letter,
+none of the Company nor any of its Subsidiaries have received any notice or
+communication from the FDA or other similar Governmental Entities alleging
+noncompliance with any applicable FDA Law and Regulation and the Laws and
+regulations of other similar Governmental Entities that regulate the safety and
+effectiveness of medical device and biological products. The Company and its
+Subsidiaries are not subject to any enforcement, regulatory or administrative
+proceedings by the FDA or other similar Governmental Entities and no such
+proceedings have been threatened. There is no civil, criminal or administrative
+action, suit, demand, claim, complaint, hearing, investigation, demand letter,
+warning letter, untitled letter, proceeding or request for information pending
+against the Company or its Subsidiaries, and neither the Company nor any of its
+Subsidiaries have any liability (whether actual or contingent) for failure to
+comply with any FDA Law and Regulation or the Laws and regulations of other
+similar Governmental Entities that regulate the safety and effectiveness of
+medical device and biological products. There is no act, omission, event, or
+circumstance that would give rise to or lead to any such action, suit, demand,
+claim, complaint, hearing, investigation, notice, demand letter, warning letter,
+proceeding or request for information or any such liability. There has not been
+any violation of any FDA Law and Regulation and the Laws and regulations of
+other similar Governmental Entities that regulate the safety and effectiveness
+of medical device and biological products in product development efforts,
+submissions, record keeping and reports to FDA or other similar Governmental
+Entity that could require or lead to investigation, corrective action or
+enforcement, regulatory or administrative action. There are no civil or criminal
+proceedings relating to the Company, its Subsidiaries or any Company or
+Subsidiary employee which involve a matter within or related to the FDA’s
+jurisdiction or the jurisdiction of other similar Governmental Entities that
+regulate the safety and effectiveness of medical device and biological products
+whether within the United States or abroad.
+
+ 
+
+40
+
+
+
+--------------------------------------------------------------------------------
+
+(e) Neither the Company nor any of its Subsidiaries have not introduced into
+commercial distribution any products manufactured by or on behalf of the Company
+and its Subsidiaries or distributed any products on behalf of another
+manufacturer which were upon their shipment adulterated or misbranded in
+violation of 21 U.S.C. § 331 or the Laws and regulations of other similar
+Governmental Entities that regulate the safety and effectiveness of medical
+device and biological products.
+
+(f) Since January 1, 2015, there has been no false or misleading information or
+significant omission in any applications, submissions, or reports submitted by
+the Company or any of its Subsidiaries to any Governmental Entity, including the
+FDA, in violation of any applicable Law or Order.
+
+(g) Except as identified in Section 5.19(g) of the Company Disclosure Letter,
+(i) all clinical, pre-clinical and other studies and tests conducted by, or on
+behalf of or sponsored by the Company or any of its Subsidiaries have been and
+are being conducted in accordance with applicable Law, including the FDCA and
+its applicable implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58 and
+812, (ii) no investigational device exemption filed by or on behalf of the
+Company or any of its Subsidiaries with the FDA has been terminated or suspended
+by any Regulatory Authority and (iii) no Regulatory Authority has commenced, or
+threatened in writing to initiate, any Cause of Action to place a clinical hold
+order on, or otherwise terminate, delay or suspend, any proposed or ongoing
+clinical investigation conducted or proposed to be conducted by or on behalf of
+the Company or any of its Subsidiaries. There have been no developments in
+connection with any clinical, pre-clinical or other studies or tests conducted
+by, or on behalf of or sponsored by the Company or its Subsidiaries that would
+reasonably be likely to (x) impact any Governmental Entity’s approval of a
+Product, (y) create the possibility of the reclassification of any Product or
+(z) jeopardize the continuation of such studies or tests.
+
+(h) No officer, employee or agent of the Company or any of its Subsidiaries has:
+(i) made any untrue statement or fraudulent statement to the FDA or any other
+Governmental Entity; (ii) failed to disclose a fact required to be disclosed to
+the FDA or any other Governmental Entity; or (iii) committed an act, made a
+statement, or failed to make a statement that would reasonably be expected to
+provide a basis for the FDA or any other Governmental Entity to invoke its
+policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and
+Illegal Gratuities,” as set forth in 56 Fed. Reg. 46191 (September 10, 1991). No
+officer, employee or agent of the Company or its Subsidiaries has been convicted
+of any crime or engaged in any conduct for which debarment is mandated or
+permitted by 21 U.S.C. § 335a. No officer, employee or agent of the Company or
+its subsidiaries has been convicted of any crime or engaged in any conduct for
+which such person or entity could be excluded from participating in the federal
+health care programs under Section 1128 of the Social Security Act or any
+similar law or regulation. Neither the Company nor any of its Subsidiaries is a
+party to a Corporate Integrity Agreement with the U.S. Department of Health and
+Human Services Office of Inspector General or has had any reporting obligations
+pursuant to any settlement, deferred prosecution, consent decree, or any other
+agreement entered into with any Governmental Entity.
+
+(i) With respect to each Product sold by the Company or its Subsidiaries, the
+Company and its Subsidiaries have complied with (i) all applicable contractual
+commitments applicable to such Product, (ii) all product specifications
+applicable to such Product and (iii) all
+
+ 
+
+41
+
+
+
+--------------------------------------------------------------------------------
+
+express and implied warranties applicable to each such Product, in each case of
+clauses (i)-(iii). The standard warranty terms for the Company and its
+Subsidiaries have been made available to the Supporting Lenders.
+
+(j) All material product issues, incidents and complaints have been suitably
+investigated, documented and managed, any applicable problem or legally required
+reports have been filed with FDA and other similar Governmental Entities that
+regulate the safety and effectiveness of medical device and biological products
+and any necessary recalls have been fully implemented.
+
+Section 5.20 Taxes.
+
+(a) The Company and each of its Subsidiaries has prepared (or caused to be
+prepared) and timely filed (taking into account valid extensions of time within
+which to file) all material Tax Returns required to be filed by any of them, and
+all such filed Tax Returns (taking into account all amendments thereto) are
+accurate and complete in all material respects.
+
+(b) All material Taxes owed by the Company and each of its Subsidiaries that are
+due and payable (whether or not shown as due on a Tax Return) have been timely
+paid or, if not yet due and payable, adequately reserved against in accordance
+with GAAP.
+
+(c) No deficiency for any amount of material Taxes has been proposed or asserted
+in writing or assessed by any Taxing Authority against the Company or any of its
+Subsidiaries that remains unpaid or unresolved.
+
+(d) The Company and each of its Subsidiaries has not received written notice of
+any pending Causes of Action, examinations or proposed adjustments in respect of
+any material amount of Taxes of the Company or any of its Subsidiaries.
+
+(e) All material Taxes required to be withheld or collected by the Company or
+any of its Subsidiaries have been withheld and collected and, to the extent
+required by applicable Law, timely paid to the appropriate Taxing Authority, and
+all forms required to be filed with respect thereto have been properly completed
+and timely filed.
+
+(f) There are no material Encumbrances for Taxes on any of the assets of the
+Company or any of its Subsidiaries, other than Encumbrances for Taxes or other
+governmental charges not yet due and payable or that are being contested in good
+faith by appropriate proceedings and are reflected on or specifically reserved
+against or otherwise disclosed in any consolidated balance sheet included in the
+Financial Statements.
+
+(g) Neither the Company nor any of its Subsidiaries has been a “controlled
+corporation” or a “distributing corporation” in any distribution occurring
+during the two (2)-year period ending on the date of this Agreement that was
+purported or intended to be governed by Section 355 of the Code (or any similar
+provision of state, local or non-U.S. Law).
+
+(h) No claim has been received, or is expected by the Company to be received,
+with respect to the Company or any of its Subsidiaries from a Taxing Authority
+in a jurisdiction where such entity does not file Tax Returns that it is or may
+be subject to taxation
+
+ 
+
+42
+
+
+
+--------------------------------------------------------------------------------
+
+by, or required to file any Tax Return in, that jurisdiction which claim has not
+since been resolved.
+
+(i) Neither the Company nor any of its Subsidiaries has been a member of an
+affiliated group of corporations filing a consolidated federal income Tax Return
+(other than a group the common parent of which is the Company) or has had any
+liability for the Taxes of any person (other than the Company or any of its
+Subsidiaries) under U.S. Treasury Regulation Section 1.1502-6 (or any similar
+provision of any state, local or non-U.S. Law), as a transferee or successor.
+
+(j) Neither the Company nor any of its Subsidiaries is a party to, or is bound
+by, or has any obligation under, any Tax sharing Contract, Tax allocation
+agreement, Tax indemnity obligation or similar agreement or practice other than
+(A) Contracts solely among the Company and/or its Subsidiaries and (B) customary
+Tax indemnification provisions in Contracts entered into in the ordinary course
+of business, the primary purpose of which does not relate to Taxes.
+
+(k) Neither the Company nor any of its Subsidiaries has currently in effect any
+waiver of any statute of limitations in respect of Taxes or any agreement to any
+extension of time with respect to the filing of a Tax Return or an assessment or
+deficiency for Taxes (other than pursuant to extensions of time to file Tax
+Returns obtained in the ordinary course of business).
+
+(l) Neither the Company nor any of its Subsidiaries has participated in any
+“listed transaction” within the meaning of U.S. Treasury Regulations
+Section 1.6011-4(b).
+
+(m) The Company has made available to the Supporting Lenders accurate and
+complete copies of any private letter ruling requests, closing agreements or
+gain recognition agreements with respect to Taxes of the Company or any of its
+Subsidiaries requested or executed in the past five (5) years.
+
+Section 5.21 Insurance. The insurance policies maintained by the Company and its
+Subsidiaries (the “Insurance Policies”) provide full and adequate coverage for
+all normal risks incident to the business of the Company and its Subsidiaries
+and their respective properties and assets, except for any such failures to
+maintain such insurance policies that have not had and would not reasonably be
+expected to have, individually or in the aggregate, a Material Adverse Effect.
+Each of the Insurance Policies is in full force and effect and all premiums due
+with respect to all Insurance Policies have been paid, except as has not had and
+would not reasonably be expected to have, individually or in the aggregate, a
+Material Adverse Effect.
+
+Section 5.22 No Other Representations; No Reliance.
+
+(a) Notwithstanding the delivery or disclosure to the Supporting Lenders, any of
+their Affiliates or any of their respective Representatives of any documentation
+or other information (including any financial projections or other supplemental
+data) or anything to the contrary in this Agreement, except for the
+representations and warranties expressly contained in this Article V (in each
+case, as qualified by the Company Disclosure Letter), (i) neither the Company
+nor any other Person has made or is making, and each of the Company and its
+Affiliates expressly disclaims, any representation or warranty of any kind or
+nature, whether
+
+ 
+
+43
+
+
+
+--------------------------------------------------------------------------------
+
+express or implied, at Law or in equity, with respect to the accuracy or
+completeness of any information provided or made available to the Supporting
+Lenders by or on behalf of the Company in connection with or related to this
+Agreement, the transactions contemplated hereby, or the completeness of any
+information provided in connection therewith and (ii) the Company hereby
+expressly disclaims any such other representations and warranties.
+
+(b) Except for the representations and warranties contained in Article VI, the
+Company acknowledges that it (a) has had an opportunity to conduct any and all
+due diligence with respect to the Supporting Lenders and any of their respective
+Subsidiaries in connection with the transactions contemplated hereby, (b) has
+relied solely upon its own independent review, investigation, and/or inspection
+of any documents in connection with the transactions contemplated hereby and
+(c) did not rely upon any written or oral statements, representations, promises,
+warranties, or guaranties whatsoever, whether express, implied, by operation of
+Law, or otherwise regarding any Supporting Lender or any Subsidiaries or
+Affiliates thereof, or with respect to any other information provided or made
+available to the Company or any of its Subsidiaries in connection with the
+transactions contemplated hereby, or the completeness of any information
+provided in connection therewith.
+
+ARTICLE VI
+
+REPRESENTATIONS AND WARRANTIES OF THE SUPPORTING LENDERS
+
+Each applicable Supporting Lender represents and warrants to the Company (as to
+itself only, severally and not jointly), as follows:
+
+Section 6.1 Qualification; Organization. Each Supporting Lender is a legal
+entity duly organized, validly existing and in good standing (with respect to
+jurisdictions that recognize such concept) under the laws of its jurisdiction of
+organization and has all requisite corporate or similar power and authority to
+own, lease and operate its properties and assets and to carry on its business as
+presently conducted, except where the failure to be so existing and in good
+standing or to have such power and authority would not, individually or in the
+aggregate, materially impair or materially delay its ability to perform its
+obligations under this Agreement. Each Supporting Lender is qualified to do
+business and is in good standing (with respect to jurisdictions that recognize
+such concept) as a foreign corporation or other entity in each jurisdiction
+where the ownership, leasing or operation of its assets or properties or conduct
+of its business requires such qualification, except where the failure to be so
+qualified or, where relevant, in good standing, would not, individually or in
+the aggregate, materially impair or materially delay its ability to perform its
+obligations under this Agreement.
+
+Section 6.2 Corporate Authority. Each Supporting Lender has the requisite power
+and authority to execute and deliver (or to cause one or more of its Affiliates
+to execute and deliver, as applicable) this Agreement and each other agreement,
+document or instrument contemplated hereby or thereby to which it is a party
+and, subject to the Company obtaining necessary Bankruptcy Court approvals from
+and after the Petition Date, to carry out the Restructuring and to perform its
+obligations hereunder and thereunder. The execution and delivery of this
+Agreement and each other agreement, document or instrument contemplated hereby
+or thereby to which it is a party and the consummation of the Transactions have
+been duly authorized by all
+
+ 
+
+44
+
+
+
+--------------------------------------------------------------------------------
+
+requisite corporate or similar action on the part of each Supporting Lender.
+This Agreement and each other agreement, document or instrument contemplated
+hereby or thereby to which it is a party has been duly and validly executed and
+delivered (subject, from and after the Petition Date, to the approval of the
+Bankruptcy Court). Subject to the Company obtaining necessary Bankruptcy Court
+approvals from and after the Petition Date, this Agreement and each such other
+document have been duly and validly executed and delivered by each of the
+applicable Supporting Lenders and each of their applicable Affiliates, and,
+assuming the due authorization, execution and delivery by the other Parties or
+their Affiliates, as applicable, constitute a legal, valid and binding agreement
+of each of the Supporting Lenders and their Affiliates, as applicable,
+enforceable against such Person in accordance with its terms, subject to the
+Enforceability Limitations.
+
+Section 6.3 Consents and Approvals. Except as expressly provided in this
+Agreement or in the Bankruptcy Code and Section 5.4, no consent, waiver,
+approval, Order, permit or authorization (including those with respect to state
+licensing required to operate the Business) of, or declaration, filing or
+registration with, or notification to, any Governmental Entity, including in
+connection or compliance with the HSR Act, is necessary or required on the part
+of (a) any Supporting Lender in connection with the execution and delivery of
+this Agreement or any other agreement, document or instrument contemplated
+hereby to which such Supporting Lender is a party and (b) any applicable
+Affiliate of any Supporting Lender in connection with the execution and delivery
+of any agreement, document or instrument contemplated hereby to which such
+Person is a party, or in connection with, the performance of such Person’s
+obligations hereunder and thereunder, or the consummation of the Transactions
+(with or without notice or lapse of time, or both), except in each case of the
+foregoing clauses (a) and (b), for immaterial Consents.
+
+Section 6.4 No Violations. The execution or delivery of this Agreement or any
+agreement, document or instrument contemplated hereby or thereby by any
+Supporting Lender or any of its applicable Affiliates, the performance of such
+Person’s obligations hereunder and thereunder, and the consummation of the
+transactions contemplated hereby or thereby, as applicable, do not and will not
+(a) conflict with or result in any violation or breach of any provisions of the
+certificate of incorporation, bylaws or other organizational documents of any
+such Person or (b) conflict with or violate any Order or Law applicable to any
+Supporting Lender or its properties, rights or assets, except in the case of
+clause (b), for any conflicts or violations that (y) have not been and would not
+reasonably be expected to be, individually or in the aggregate, material to the
+Business (taken as a whole) and (z) would not reasonably be expected to prevent
+or materially hinder or delay any of the Transactions or the transactions
+contemplated by any of the Definitive Documents or affect the ability of the
+Supporting Lenders or their Affiliates, as applicable, to perform their
+obligations under this Agreement, the Restructuring Term Sheet or any of the
+Definitive Documents.
+
+Section 6.5 Brokers. Other than Houlihan Lokey Capital, Inc., the Supporting
+Lenders have not employed or engaged any investment banker, broker or finder who
+is entitled to any brokerage, finder’s or other fee or any commission from the
+Supporting Lenders in connection with this Agreement, the Restructuring Term
+Sheet, the Definitive Documents, the transactions contemplated by this Agreement
+or any other agreement, document or instrument contemplated hereby or thereby
+based upon arrangements made by or on behalf of the Supporting Lenders or any of
+their Affiliates.
+
+ 
+
+45
+
+
+
+--------------------------------------------------------------------------------
+
+Section 6.6 Ownership of Claims. Each Supporting Lender represents and warrants
+to each of the other Parties that, as of the date such Party executes this
+Agreement or a Transferee Joinder, as applicable: (a) it either (i) is the sole
+legal and beneficial owner of the aggregate principal amount of Claims set forth
+on its signature page, in each case, free and clear of any pledge, lien,
+security interest, charge, claim, proxy, voting restriction, right of first
+refusal or other limitation on disposition of any kind, in each case, that is
+reasonably expected to adversely affect such Supporting Lender’s performance of
+its obligations contained in this Agreement or (ii) has full power and authority
+to vote the Claims (including Prepetition Agreement Claims held through
+participations or interests or pursuant to permissible transfers) set forth on
+its signature page; (b) it has full power and authority to vote on and consent
+to all matters concerning the Claims set forth on its signature page and to
+exchange, assign, and transfer such Claims; (c) it is either (i) a qualified
+institutional buyer as defined in Rule 144A of the Securities Act or (ii) an
+institutional accredited investor as defined in Rule 501(a)(l), (2), (3) or
+(7) under the Securities Act; (d) any securities acquired by a Supporting Lender
+in connection with the Restructuring described herein and in the Restructuring
+Term Sheet will be acquired for investment purposes and not with a view to
+distribution in violation of the Securities Act; and (e) it has made no prior
+assignment, sale, participation, grant, conveyance or other Transfer of, and has
+not entered into any other agreement to assign, sell, participate, grant, convey
+or otherwise Transfer, in whole or in part, any portion of its right, title, or
+interests in any Claims that is inconsistent with the representations and
+warranties of such Supporting Lender herein or would render such Supporting
+Lender otherwise unable to comply with this Agreement and perform its
+obligations hereunder.
+
+Section 6.7 No Other Representations; No Reliance.
+
+(a) Notwithstanding the delivery or disclosure to the Company, any of its
+Affiliates or any of their respective Representatives of any documentation or
+other information (including any financial projections or other supplemental
+data) or anything to the contrary in this Agreement, except for the
+representations and warranties expressly contained in this Article VI,
+(i) neither the Supporting Lenders nor any other Person has made or is making,
+and each of the Supporting Lenders and its Affiliates expressly disclaims, any
+representation or warranty of any kind or nature, whether express or implied, at
+Law or in equity, with respect to the accuracy or completeness of any
+information provided or made available to the Company by or on behalf of the
+Supporting Lenders in connection with or related to this Agreement, the
+transactions contemplated hereby, or the completeness of any information
+provided in connection therewith and (ii) the Supporting Lenders hereby
+expressly disclaim any such other representations and warranties.
+
+(b) Except for the representations and warranties contained in Article V, the
+Supporting Lenders acknowledge that they (a) have had an opportunity to conduct
+any and all due diligence with respect to the Company and any of its respective
+Subsidiaries in connection with the transactions contemplated hereby, (b) have
+relied solely upon their own independent review, investigation, and/or
+inspection of any documents in connection with the transactions contemplated
+hereby and (c) did not rely upon any written or oral statements,
+representations, promises, warranties, or guaranties whatsoever, whether
+express, implied, by operation of Law, or otherwise regarding the Company or any
+Subsidiaries or Affiliates thereof, or with respect to any other information
+provided or made available to such Supporting Lender in connection with
+
+ 
+
+46
+
+
+
+--------------------------------------------------------------------------------
+
+the transactions contemplated hereby, or the completeness of any information
+provided in connection therewith.
+
+ARTICLE VII
+
+COVENANTS
+
+Section 7.1 Interim Operations.
+
+(a) The Company covenants and agrees as to itself and its Subsidiaries that,
+during the Effective Period, except (i) as otherwise expressly required or
+contemplated by this Agreement or the Restructuring Term Sheet, (ii) as required
+by applicable Law (including the Bankruptcy Code) or (iii) as consented to in
+writing by the DIP Agent (which consent shall not be unreasonably withheld,
+conditioned or delayed), (x) the Business shall be conducted in the ordinary
+course of business consistent with past practice and in accordance with
+applicable Law and (y) the Company and its Subsidiaries shall use their
+respective commercially reasonable efforts to preserve intact the Business and
+their relationship with customers, suppliers, distributors, wholesalers,
+retailers, employees and Governmental Entities.
+
+(b) Without limiting the generality of, and in furtherance of, the foregoing,
+during the Effective Period, except (x) as otherwise expressly required or
+contemplated by this Agreement or the Restructuring Term Sheet, (y) as required
+by applicable Law (including the Bankruptcy Code) or (z) as consented to in
+writing by the DIP Agent (which consent shall not be unreasonably withheld,
+conditioned or delayed), the Company shall not, and shall not permit any of its
+Subsidiaries to, directly or indirectly:
+
+(i) amend the certificate of incorporation, bylaws or other organizational
+documents of the Company or its Subsidiaries;
+
+(ii) merge or consolidate the Company or any of its Subsidiaries with any other
+Person, or restructure, reorganize or completely or partially liquidate the
+Company or any of its Subsidiaries or otherwise enter into any agreements
+providing for the sale of their respective material assets, operations or
+business;
+
+(iii) acquire assets outside of the ordinary course of business from any other
+Person;
+
+(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize
+the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any
+shares of capital stock or Equity Interests of the Company or any of its
+Subsidiaries (other than the issuance of shares by a wholly owned Subsidiary of
+the Company to the Company or another wholly owned Subsidiary), or securities
+convertible or exchangeable into or exercisable for any shares of such capital
+stock or Equity Interests, or any options, warrants or other rights of any kind
+to acquire any of the foregoing;
+
+(v) incur, create or assume any Encumbrance (other than Permitted Encumbrances)
+on any properties or assets, tangible or intangible, of the Company or any of
+its Subsidiaries;
+
+ 
+
+47
+
+
+
+--------------------------------------------------------------------------------
+
+(vi) (A) incur, assume or guarantee any Indebtedness or capitalized lease
+obligations or issue any debt securities or (B) make any loans, advances,
+guarantees or capital contributions to, or investments in, any other Person;
+
+(vii) declare, set aside, make or pay any dividend or other distribution,
+payable in cash, stock, property or otherwise, with respect to any of its
+capital stock or Equity Interests (except for dividends paid by any direct or
+indirect wholly owned Subsidiary to the Company or to any other direct or
+indirect wholly owned Subsidiary) or enter into any agreement with respect to
+the voting of its capital stock or Equity Interests (other than this Agreement);
+
+(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise
+acquire, directly or indirectly, any of its capital stock or Equity Interests or
+securities convertible or exchangeable into or exercisable for any of the
+foregoing;
+
+(ix) except in accordance with the Budget (as defined in the DIP Orders), make
+or authorize any capital expenditure;
+
+(x) enter into any Contract that would have been a Material Contract had it been
+entered into prior to this Agreement;
+
+(xi) other than in the ordinary course of business, cancel or terminate (other
+than, for the avoidance of doubt, any expiration in accordance with its terms),
+or modify or amend in any material respect, or waive any material rights under,
+any Material Contract;
+
+(xii) make any material changes with respect to material accounting policies or
+procedures, except as required by changes in applicable Law or GAAP;
+
+(xiii) settle or compromise any (A) Cause of Action (other than settlements
+involving only unsecured claims with an allowed amount of less than one hundred
+thousand dollars ($100,000)), or (B) Patent-related Cause of Action involving
+any of the Company Intellectual Property;
+
+(xiv) transfer, assign, sell, lease, grant any license (other than non-exclusive
+licenses granted in the ordinary course of business) with respect to, or, to the
+extent within the control of the Company or any of its Subsidiaries, abandon or
+permit to lapse, any material Company Intellectual Property;
+
+(xv) terminate or fail to renew any material Business Permit;
+
+(xvi) other than in the ordinary course of business, sell, pledge, dispose of,
+transfer or authorize the sale, pledge, disposition or transfer of any assets or
+properties of the Company or its Subsidiaries;
+
+(xvii) grant any material licenses, sublicenses, covenants not to assert or
+similar rights with respect to any assets or properties, whether tangible or
+intangible, of the Company or its Subsidiaries;
+
+ 
+
+48
+
+
+
+--------------------------------------------------------------------------------
+
+(xviii) fail to use commercially reasonable efforts to maintain the Insurance
+Policies or to renew or replace the Insurance Policies following their
+termination;
+
+(xix) except as required pursuant to the terms of any Debtor Plan in effect as
+of the date of this Agreement, the Approved KEIP or the Approved KERP,
+(A) increase in any manner the compensation, consulting fees, incentive, bonus,
+retirement, welfare, fringe or other benefits, severance or termination pay of
+any employee or independent contractor, (B) become a party to, establish, adopt,
+amend, commence participation in or terminate any Debtor Plan or any arrangement
+that would have been a Debtor Plan had it been entered into prior to this
+Agreement, (C) grant any new awards, or amend or modify the terms of any
+outstanding awards, under any Debtor Plan, (D) take any action to accelerate the
+vesting or lapsing of restrictions or payment, or fund or in any other way
+secure the payment, of compensation or benefits under any Debtor Plan,
+(E) change any actuarial or other assumptions used to calculate funding
+obligations with respect to any Debtor Plan that is required by applicable Law
+to be funded or change the manner in which contributions to such plans are made
+or the basis on which such contributions are determined, except as may be
+required by GAAP, (F) forgive any loans or issue any loans (other than routine
+travel advances issued in the ordinary course of business) to any employee,
+(G) hire any employee or engage any independent contractor (who is a natural
+person) other than the engagement of independent contractors to fill vacancies
+or staff currently existing or contemplated projects to the extent not currently
+staffed or (H) terminate the employment of any officer other than for cause
+other than any officer who was provided with written notice of termination prior
+to the date of this Agreement and who is listed on Section 7.1(b)(xix) of the
+Company Disclosure Letter;
+
+(xx) become a party to, establish, adopt, amend, commence participation in or
+terminate any collective bargaining agreement or other agreement with a labor
+union, works council or similar organization;
+
+(xxi) (A) change in any material respect any material method of accounting of
+the Company or its Subsidiaries for Tax purposes; (B) enter into any agreement
+with any Taxing Authority (including a “closing agreement” under Code
+Section 7121) with respect to any material Tax or Tax Returns of the Company or
+its Subsidiaries; (C) surrender a right of the Company or its Subsidiaries to a
+material Tax refund; (D) change an accounting period of the Company or its
+Subsidiaries with respect to any material Tax; (E) file an amended Tax Return;
+(F) change or revoke any material election with respect to Taxes; (G) make any
+material election with respect to Taxes that is inconsistent with past practice;
+(H) file any Tax Return that is inconsistent with past practice; (I) consent to
+any extension or waiver of the limitations period applicable to any material Tax
+claim or assessment (other than in the ordinary course of business); or (J) take
+any action (or fail to take any action) that would result in a loss of any
+material Tax losses, credits or other attributes that may be used to reduce Tax
+liabilities;
+
+(xxii) revalue any assets or properties of the Company or its Subsidiaries
+(including Inventory), except to the extent required by GAAP; or
+
+ 
+
+49
+
+
+
+--------------------------------------------------------------------------------
+
+(xxiii) agree, authorize or commit, in writing or otherwise, to take any of the
+foregoing actions.
+
+(c) The Supporting Lenders shall not knowingly take or permit any of their
+Subsidiaries to take any action that is reasonably likely to prevent or
+materially impede the consummation of the Transactions.
+
+Section 7.2 Access and Information. Subject to applicable Law, the Company shall
+(and shall cause its Subsidiaries to) afford the Supporting Lenders and the
+Supporting Lenders’ officers, directors, employees, agents, counsel,
+accountants, investment bankers, financing sources and other authorized
+Representatives reasonable access, during normal business hours and upon
+reasonable advance notice, to all of the Company’s, its Subsidiaries’ and their
+applicable Affiliates’ properties, offices and Books and Records and, during
+such period, the Company shall (and shall cause its Subsidiaries to) furnish as
+promptly as practicable to the Supporting Lenders all information (financial or
+otherwise) the Supporting Lenders may reasonably request concerning its
+Business; provided that no investigation pursuant to this Section 7.2 shall
+affect or be deemed to modify any representation or warranty made by the Company
+herein. Notwithstanding the foregoing, the Company shall not be required by this
+Section 7.2 to provide the Supporting Lenders or their Representatives with
+access to or to disclose information (i) the disclosure of which would violate
+applicable Law, (ii) that in the reasonable judgment of the Company would result
+in the disclosure of any Trade Secrets of third parties or violate any of its
+obligations with respect to confidentiality or (iii) to disclose any privileged
+information of the Company or any of its Subsidiaries.
+
+Section 7.3 Approvals and Consents; Cooperation; Notification.
+
+(a) Subject to the terms and conditions of this Agreement, the Company and the
+Supporting Lenders shall reasonably cooperate with each other and use (and shall
+cause their respective Subsidiaries and Affiliates to use) their respective
+reasonable best efforts to take or cause to be taken all actions, and to do or
+cause to be done all things, reasonably necessary, proper or advisable on their
+part under this Agreement and applicable Law to consummate the Transactions as
+soon as practicable after the date of this Agreement, including (i) unless
+otherwise agreed in writing by the Parties, obtaining as promptly as practicable
+all necessary waiting period expirations or terminations, consents, clearances,
+waivers, licenses, Orders, registrations, approvals, permits, and authorizations
+necessary or advisable to be obtained from any third party and/or any
+Governmental Entity, and (ii) preparing, filing and providing as promptly as
+practicable all documentation to effect all necessary notices, reports and other
+filings as may be necessary to obtain all such waiting period expirations or
+terminations, consents, clearances, waivers, licenses, Orders, registrations,
+permits, approvals, permits or authorizations. Subject to applicable Laws
+relating to the exchange of information, the Supporting Lenders and the Company
+shall have the right to review in advance, and, to the extent practicable, each
+will consult with the other on and consider in good faith the views of the other
+in connection with, all of the information relating to the Supporting Lenders or
+the Company or the Business, as the case may be, and any of their respective
+Affiliates, that appears in any filing made with, or written materials submitted
+to, any third party and/or any Governmental Entity in connection with the
+Transactions. In exercising the rights specified in the foregoing sentence, the
+Company and the Supporting Lenders shall act reasonably and as promptly as
+practicable.
+
+ 
+
+50
+
+
+
+--------------------------------------------------------------------------------
+
+(b) Each of the Parties shall, in connection with and without limiting the
+obligations set forth in Section 7.3(a), (i) cooperate in all respects and
+consult with the other Parties in connection with any filing or submission with
+any Governmental Entity in connection with this Section 7.3(b), including by
+allowing the other Parties to have a reasonable opportunity to review in advance
+and comment on drafts of filings or submissions and reasonably considering in
+good faith comments of the other Parties and providing the other Parties with
+copies of filings and submissions, (ii) submit to customary background checks in
+connection therewith, (iii) respond promptly to any additional requests from
+Governmental Entities and (iv) subject to applicable Laws and as required by any
+Governmental Entity, keep the other Parties reasonably apprised of the status of
+any waiting period expirations or terminations, consents, clearances, waivers,
+licenses, Orders, registrations, approvals, permits, and authorization for the
+Transactions under any Antitrust Law to the extent relating to the completion of
+the Transactions and to the extent such party is aware of such information,
+including promptly furnishing the other with copies of notices or other
+communications received by the Company or the Supporting Lenders or any of their
+respective Affiliates, as the case may be, from any Governmental Entity with
+respect to the foregoing clauses (i)-(iii); provided, however, that materials
+required to be provided pursuant to the foregoing clauses (i)-(iv) may be
+redacted (A) to remove references concerning the valuation of any of the Parties
+or any of their respective Subsidiaries, (B) as necessary to comply with
+contractual arrangements and (C) as necessary to address reasonable privilege or
+confidentiality concerns; provided further that any of the Parties may, as each
+deems advisable and necessary, reasonably designate any competitively sensitive
+material provided to the other under this Section 7.3(b) as “Outside Counsel
+Only Material” and materials so designated shall only be provided to each
+party’s outside counsel.
+
+(c) Subject to applicable Laws and as required by any Governmental Entity, the
+Company and the Supporting Lenders each shall keep the other reasonably apprised
+of the status of matters relating to completion of the Transactions to the
+extent such Party is aware of such information.
+
+(d) Notwithstanding the foregoing, nothing in this Agreement shall require the
+Supporting Lenders or their Affiliates to take or agree to take any action with
+respect to its business or operations unless the effectiveness of such agreement
+or action is conditioned upon the completion of the Transactions.
+
+Section 7.4 Employee Communications. During the Effective Period, prior to
+making any broad-based written or oral communications to officers and employees
+of the Company or any of its Subsidiaries pertaining to compensation or benefit
+matters that are affected by the Transactions, the Company shall provide the
+Supporting Lenders with a copy of the intended communication, the Supporting
+Lenders shall have no less than three (3) Business Days to review and comment on
+the communication, and the Company shall consider any such comments in good
+faith.
+
+Section 7.5 Alternative Transaction Procedures.
+
+(a) Notwithstanding any provisions to the contrary herein, the Debtors may
+receive (but not actively pursue) unsolicited proposals, offers, indications of
+interest or inquiries for one or more Alternative Transactions from other
+parties (such Alternative Transaction, a
+
+ 
+
+51
+
+
+
+--------------------------------------------------------------------------------
+
+“Proposed Alternative Transaction”); provided that the Debtors shall promptly
+notify the Prepetition Agents of any Proposed Alternative Transaction within two
+(2) Business Days of receipt thereof with such notice to include the material
+terms thereof and any accompanying documentation and/or correspondence relating
+to the Proposed Alternative Transaction, including (unless prohibited by a
+separate agreement) the identity of the person or group of persons submitting
+such Proposed Alternative Transaction.
+
+(b) To the extent that the Debtors, in consultation with the Prepetition Agents,
+determine, in good faith and consistent with the Debtors’ fiduciary duties, that
+a Proposed Alternative Transaction would reasonably be expected to provide
+better recovery to holders of Claims and Equity Interests in the Debtors as
+compared to the recovery such holders would receive pursuant to the transactions
+contemplated herein, including consummation of the Restructuring (such Proposed
+Alternative Transaction, a “Superior Alternative Transaction”), the Debtors may
+negotiate, provide due diligence in connection with, discuss, and/or analyze
+such Superior Alternative Transaction without breaching or terminating this
+Agreement; provided that a determination by the Board, in good faith, after
+consulting its outside legal counsel, that proceeding with the Restructuring and
+pursuit of confirmation and consummation of the Plan or consummation of the
+Transactions instead of a Superior Alternative Transaction would be a breach of
+the Board’s fiduciary duties under applicable law shall be required prior to the
+Debtors electing to enter into a Superior Alternative Transaction; provided
+further that the Debtors shall, prior to electing to enter into a Superior
+Alternative Transaction, provide the Prepetition Agents with seven (7) Business
+Days’ written notice of their intent to enter into such Superior Alternative
+Transaction, with such notice to include the definitive documentation with
+respect to such Superior Alternative Transaction (such seven (7) Business Day
+notice period, the “Alternative Transaction Notice Period”).
+
+(c) At any time during the Alternative Transaction Notice Period, the Supporting
+Lenders may submit to the Debtors a proposal for one or more Alternative
+Transactions (any such proposal, a “Revised Supporting Lender Proposal”). The
+Debtors shall, (i) promptly following the receipt of any Revised Supporting
+Lender Proposal, determine in consultation with the Prepetition Agents whether
+the Revised Supporting Lender Proposal would reasonably be expected to provide
+equal or better recovery to holders of Claims and Equity Interests in the
+Debtors as compared to the recovery such holders would receive pursuant to the
+Superior Alternative Transaction, and (ii) if so, immediately terminate any
+negotiations, provision of due diligence or other discussions in connection with
+such Superior Alternative Transaction.
+
+(d) If the Debtors notify counsel to the Prepetition Agents that the Debtors
+have entered, or will be entering, into definitive documentation with respect to
+a Superior Alternative Transaction, all obligations of the Supporting Lenders
+shall immediately terminate and all of the Supporting Lenders’ rights shall be
+reserved.
+
+Section 7.6 Insurance. The Company shall (and shall cause its Subsidiaries to)
+provide the Supporting Lenders with all cooperation, information and assistance
+reasonably requested by the Supporting Lenders in connection with obtaining the
+Post-Restructuring Insurance, including providing any prospective insurer (and
+its advisors and representatives) access to information, documents and personnel
+as may reasonably be requested by such Persons.
+
+ 
+
+52
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE VIII
+
+CONDITIONS PRECEDENT
+
+Section 8.1 Conditions to Obligation of the Company and the Supporting Lenders.
+The respective obligations of each Party to consummate the Transactions shall be
+subject to the satisfaction at or prior to the Effective Date of the following
+conditions:
+
+(a) No Injunctions. There shall not be in effect any Order by a Governmental
+Entity of competent jurisdiction restraining, enjoining or having the effect of
+making the Transactions or the transactions contemplated by the Definitive
+Documents illegal or otherwise prohibiting the consummation of the Transactions
+or the transactions contemplated by the Definitive Documents. No applicable Law
+shall have been enacted, entered, promulgated and remain in effect that
+prohibits or makes illegal the consummation of the Transactions or the
+transactions contemplated by the Definitive Documents.
+
+(b) Bankruptcy Court Orders. The Bankruptcy Court shall not have entered an
+Order (i) dismissing the Chapter 11 Cases or converting the Chapter 11 Cases to
+a case under chapter 7 of the Bankruptcy Code, (ii) pursuant to Section 1104 of
+the Bankruptcy Code appointing a trustee, receiver or an examiner to operate,
+manage or examine any of the Company’s businesses or (iii) that is inconsistent
+with this Agreement, the Plan or the Confirmation Order in a manner adverse to
+the Supporting Lenders.
+
+(c) No Alternative Transaction. The Company shall not have entered into
+definitive documentation with respect to any Alternative Transaction.
+
+Section 8.2 Conditions to Obligation of the Company. The obligations of the
+Company to consummate the Transactions shall be subject to the satisfaction or
+waiver (to the extent permitted by applicable Law) by the Company at or prior to
+the Effective Date of the following conditions:
+
+(a) Representations and Warranties. (i) The Lender Specified Representations,
+determined without regard to any qualification as to materiality, shall be true
+and correct in all material respects at and as of the date of this Agreement and
+at and as of the Effective Date as though made at and as of the Effective Date,
+(ii) the representations and warranties of the Supporting Lenders contained in
+Article VI (other than the Lender Specified Representations) shall be true and
+correct, determined without regard to any qualification as to materiality, at
+and as of the date of this Agreement and at and as of the Effective Date as
+though made at and as of the Effective Date, except for such failures to be true
+and correct as would not, individually or in the aggregate, reasonably be
+expected to (x) prevent or materially hinder or delay any of the Transactions or
+the transactions contemplated by any of the Definitive Documents or (y) affect
+the ability of the Supporting Lenders to perform their obligations under this
+Agreement or the Restructuring Term Sheet or the Supporting Lenders or any of
+their Affiliates to perform their respective obligations under any of the
+Definitive Documents, in each case, in any material respect; provided, however,
+that in each of the foregoing clauses (i) and (ii), any representations and
+warranties that are made as of a particular date or period shall be true and
+correct (in the manner set forth above), only as of such date or period.
+
+ 
+
+53
+
+
+
+--------------------------------------------------------------------------------
+
+(b) Covenants and Agreements. The covenants and agreements of the Supporting
+Lenders to be performed at or prior to the Effective Date shall have been
+performed in all material respects in accordance with this Agreement.
+
+(c) Confirmation Order. The Bankruptcy Court shall have entered the Confirmation
+Order and if a timely appeal shall have been filed or sought, (A) no stay of the
+Confirmation Order shall be in effect or (B) if such a stay shall have been
+granted, then (1) (x) the stay shall have been dissolved or lifted and (y) the
+appeal would not reasonably be expected to prevent or materially impede the
+consummation of the Transactions or (2) a Final Order of the district court,
+circuit court, or other court having jurisdiction to hear such appeal shall have
+affirmed the Confirmation Order.
+
+Section 8.3 Conditions to Obligation of the Supporting Lenders. The obligations
+of the Supporting Lenders to consummate the Transactions shall be subject to the
+satisfaction or waiver (to the extent permitted by applicable Law) by the
+Supporting Lenders at or prior to the Effective Date of the following
+conditions:
+
+(a) Representations and Warranties. (i) The Company Specified Representations,
+determined without regard to any qualification as to materiality, shall be true
+and correct in all material respects at and as of the date of this Agreement and
+at and as of the Effective Date as though made at and as of the Effective Date,
+(ii) the representations and warranties of the Company set forth in Article V
+(other than the Company Specified Representations and the representations and
+warranties set forth in Section 5.8(f)) shall be true and correct, determined
+without regard to any qualification as to materiality or “Material Adverse
+Effect,” at and as of the date of this Agreement and at and as of the Effective
+Date as though made at and as of the Effective Date, except for such failures to
+be true and correct as would not, individually or in the aggregate, reasonably
+be expected to have a Material Adverse Effect and (iii) the representations and
+warranties of the Company set forth in Section 5.8(f) shall be true and correct
+at and as of the date of this Agreement and at and as of the Effective Date as
+though made at and as of the Effective Date; provided, however, that, in each
+case of the foregoing clauses (i) through (ii), any representations and
+warranties that are made as of a particular date or period shall be true and
+correct (in the manner set forth above), only as of such date or period.
+
+(b) Covenants and Agreements. The covenants and agreements of the Company to be
+performed at or prior to the Effective Date shall have been performed in all
+material respects in accordance with this Agreement.
+
+(c) Officer’s Certificates. The Company shall have delivered to the Supporting
+Lenders a certificate duly executed by an executive officer of the Company
+certifying to the effect that the conditions set forth in Section 8.3(a) and
+Section 8.3(b) have been satisfied.
+
+(d) Confirmation Order. The Confirmation Order shall be a Final Order.
+
+(e) Post-Restructuring Insurance. The DIP Agent shall have received a commitment
+(in form and substance acceptable to the DIP Agent in its sole discretion) from
+the provider(s) of the Post-Restructuring Insurance to enter into the
+Post-Restructuring Insurance
+
+ 
+
+54
+
+
+
+--------------------------------------------------------------------------------
+
+with the applicable Reorganized Debtors (and their applicable Affiliates) on the
+Effective Date upon the effectiveness of the Plan.
+
+Section 8.4 Frustration of Conditions. No Party may rely on the failure of any
+condition set forth in Section 8.1, Section 8.2 or Section 8.3, as the case may
+be, to be satisfied if such failure was caused by such Party’s breach of any
+provision of this Agreement.
+
+ARTICLE IX
+
+TERMINATION
+
+Section 9.1 Termination.
+
+(a) Mutual Termination. This Agreement and the obligations hereunder may be
+terminated by mutual written consent to terminate this Agreement among the
+Company and the Supporting Lenders.
+
+(b) Supporting Lender Termination. This Agreement and the obligations hereunder
+shall automatically terminate one (1) Business Day (or such other notice period
+as specifically set forth below) following the delivery of written notice from
+the Supporting Lenders to the Company any time after and during the continuance
+of any of the following events (each, a “Supporting Lender Termination Event”):
+
+(i) a breach of any of the covenants or agreements or any of the representations
+or warranties set forth in this Agreement on the part of the Company which
+breach, either individually or in the aggregate with other breaches by the
+Company, would result in, if occurring or continuing on the Effective Date, the
+failure of the conditions set forth in Section 8.3(a) or Section 8.3(b), as the
+case may be, and such breach is not curable or, if such breach is susceptible to
+cure, such breach remains uncured for a period of three (3) Business Days after
+receipt of notice thereof (provided that the Supporting Lenders are not then in
+material breach of any of the covenants, agreements, representations or
+warranties set forth in this Agreement on the part of the Supporting Lenders);
+
+(ii) any Debtor shall pay or cause to be paid any amount outside of the ordinary
+course of business or inconsistent with the Budget (as defined in the DIP
+Orders), subject to Permitted Variances (as defined in the DIP Orders), without
+the consent of the DIP Agent;
+
+(iii) the Bankruptcy Court shall have entered an unstayed Order dismissing one
+or more of the Chapter 11 Cases or converting any of the Chapter 11 Cases to a
+case or cases under chapter 7 of the Bankruptcy Code;
+
+(iv) an Order denying confirmation of the Plan shall have been entered by the
+Bankruptcy Court or the Confirmation Order shall have been reversed, vacated or
+otherwise modified in a manner inconsistent with this Agreement or the Plan
+without the prior written consent of the DIP Agent;
+
+ 
+
+55
+
+
+
+--------------------------------------------------------------------------------
+
+(v) any of the Debtors move to assume any executory Contracts or unexpired
+Leases without the consent of the DIP Agent inconsistent with the Plan and such
+assumption is not remedied within three (3) Business Days following notice
+thereof to the Company by the Supporting Lenders;
+
+(vi) any court of competent jurisdiction or governmental authority, including
+any regulatory authority, shall have entered a final, non-appealable judgment or
+order declaring the Restructuring, this Agreement, or any material portion
+hereof to be unenforceable or illegal or enjoining the consummation of a
+material portion of the Restructuring and such judgment or order is not stayed,
+dismissed, vacated or modified within five (5) Business Days following notice
+thereof to the Company by the Supporting Lenders; provided, however, that in the
+case of a stay, upon such judgment or order becoming unstayed and five
+(5) Business Days’ notice thereof to the Company by the Supporting Lenders, a
+Supporting Lender Termination Event shall be deemed to have occurred;
+
+(vii) the Company fails to comply with or achieve the Milestones set forth in
+Exhibit D; provided, however, the Company shall not have failed to comply with
+or achieve the Milestones set forth in Exhibit D to the extent that an extension
+of any such Milestones for up to three (3) days is required to accommodate the
+Bankruptcy Court’s calendar;
+
+(viii) the filing by the Company of any motion or pleading with the Bankruptcy
+Court that is inconsistent with this Agreement and the Restructuring Term Sheet
+in any material respect and such motion is not withdrawn or appropriately
+modified within two (2) calendar days following notice thereof to the Company by
+the Supporting Lenders;
+
+(ix) the Bankruptcy Court grants relief that is inconsistent with this Agreement
+or the Restructuring and such inconsistent relief is not dismissed, vacated or
+modified to be consistent with this Agreement and the Restructuring within five
+(5) Business Days following notice thereof to the Company by the Supporting
+Lenders;
+
+(x) any of the following shall have occurred: (a) the Company or any of its
+Affiliates shall have filed any motion, application, adversary proceeding or
+cause of action (1) challenging the validity, enforceability, perfection or
+priority of, or seeking avoidance or subordination of any Claims (in any
+capacity) of the Prepetition Lenders or the liens securing such Claims or
+(2) otherwise seeking to impose liability upon or enjoin the Prepetition Lenders
+(in any capacity); or (b) the Company or any affiliate of the Company shall have
+supported, encouraged or solicited any other party to file any adversary
+proceeding or Cause of Action referred to in the immediately preceding
+clause (a) filed by a third party, or consents or does not object (without the
+consent of the DIP Agent) to the standing of any such third party to bring such
+application, adversary proceeding or Cause of Action;
+
+(xi) the Company (a) withdraws or revokes the Plan or files, propounds or
+otherwise supports any chapter 11 plan other than the Plan or (b) files or
+publicly
+
+ 
+
+56
+
+
+
+--------------------------------------------------------------------------------
+
+proposes, announces, enters into or otherwise supports any (i) Alternative
+Transaction or (ii) amendment or modification to the Restructuring containing
+any terms that are inconsistent with the implementation of, and the terms set
+forth in, the Restructuring Term Sheet unless such amendment or modification is
+otherwise consented to in accordance with Section 10.14;
+
+(xii) on or after the date of this Agreement the Company consummates any merger,
+consolidation, material disposition, material acquisition, material investment,
+dividend, incurrence of Indebtedness or other similar transaction outside the
+ordinary course of business that is inconsistent with the restrictions set forth
+in Section 7.1(b), other than with the consent of the DIP Agent;
+
+(xiii) the Definitive Documents and any amendments, modifications or supplements
+thereto include terms that are inconsistent in any material respect with this
+Agreement or the Restructuring Term Sheet and such inconsistency has not been
+corrected within three (3) Business Days after notice thereof has been given by
+the Supporting Lenders to the Company;
+
+(xiv) the Bankruptcy Court shall have entered an unstayed Order pursuant to
+Section 1104 of the Bankruptcy Code appointing a trustee, receiver or an
+examiner to operate and manage any of the Company’s businesses;
+
+(xv) the Bankruptcy Court grants relief terminating, annulling, or modifying the
+automatic stay (as set forth in section 362 of the Bankruptcy Code) with regard
+to material assets of the Debtors without the consent of the DIP Agent;
+
+(xvi) the occurrence of any event, development, change or effect since the date
+of this Agreement that has had or would reasonably be expected to have,
+individually or in the aggregate, a Material Adverse Effect;
+
+(xvii) the Company ceases to have the exclusive right to file and solicit
+acceptances of a chapter 11 plan; or
+
+(xviii) the failure of the Company to pay the fees and expenses of the
+Supporting Lenders in accordance with Section 10.13 of this Agreement, the
+Prepetition Credit Agreement, the Prepetition Facility Agreement, the
+Restructuring Term Sheet, and the DIP Orders and such fees and expenses are not
+paid within three (3) Business Days following notice thereof to the Company by
+the Supporting Lenders.
+
+The Company hereby acknowledges and agrees that the termination of this
+Agreement and the obligations hereunder as a result of a Supporting Lender
+Termination Event, and the delivery of any notice by the Supporting Lenders
+pursuant to any of the provisions of this Section 9.1(b) shall not violate the
+automatic stay imposed in connection with the Chapter 11 Cases.
+
+(c) Automatic Termination. This Agreement and the obligations hereunder shall
+automatically and immediately terminate if, following the delivery of any notice
+by the Supporting Lenders pursuant to Section 9.1(b), the Company or any other
+party-in-interest
+
+ 
+
+57
+
+
+
+--------------------------------------------------------------------------------
+
+asserts that the termination of this Agreement or the delivery of such notice
+violates the automatic stay imposed in connection with the Chapter 11 Cases.
+
+(d) Company Termination. This Agreement and the obligations, hereunder may be
+terminated by the Company upon three (3) Business Days advance written notice
+thereof to the Supporting Lenders (or such other notice period as specifically
+set forth below) upon the occurrence of any of the following events (each, a
+“Company Termination Event”) unless (i) to the extent curable, such Company
+Termination Event has been cured by the applicable Supporting Lenders during
+such three (3) Business Day notice period (or such other applicable notice
+period as specifically set forth below) or (ii) such Company Termination Event
+is waived in accordance with Section 10.14:
+
+(i) a breach of any of the covenants or agreements or any of the representations
+or warranties set forth in this Agreement on the part of the Supporting Lenders
+which breach, either individually or in the aggregate with other breaches by the
+Supporting Lenders, would result in, if occurring or continuing on the Effective
+Date, the failure of the conditions set forth in Section 8.2(a) or
+Section 8.2(b), as the case may be, and such breach is not curable or, if such
+breach is susceptible to cure, such breach remains uncured for a period of
+twenty (20) Business Days after receipt of notice thereof (provided that the
+Company is not then in material breach of any of the covenants, agreements,
+representations or warranties set forth in this Agreement on the part of the
+Company);
+
+(ii) any court of competent jurisdiction or governmental authority, including
+any regulatory authority, shall have entered a Final Order declaring the
+Restructuring, this Agreement, or any material portion hereof to be
+unenforceable or illegal or enjoining the consummation of a material portion of
+the Restructuring and such judgment or order is not stayed, dismissed, vacated
+or modified within twenty-five (25) calendar days following notice thereof to
+the Supporting Lenders by the Company; provided, however, that in the case of a
+stay, upon such judgment or order becoming unstayed and twenty-five
+(25) calendar days’ notice thereof to the Supporting Lenders by the Company, a
+Company Termination Event shall be deemed to have occurred;
+
+(iii) the Supporting Lenders fail to provide an extension of any of the
+Milestones as required to accommodate the Bankruptcy Court’s calendar;
+
+(iv) Deerfield fails, at any time during the Effective Period, to collectively
+hold or control 66.67% or more of the aggregate principal amount of the
+Prepetition Agreement Claims; or
+
+(v) the filing by the Supporting Lenders of any motion or pleading with the
+Bankruptcy Court that is inconsistent in any material respect with this
+Agreement and the Restructuring Term Sheet.
+
+Section 9.2 Termination Upon Effective Date or Outside Date. This Agreement
+shall terminate automatically without further required action or notice upon the
+sooner to occur of (a) the Effective Date and (b) any Party’s written notice to
+the other Parties of termination
+
+ 
+
+58
+
+
+
+--------------------------------------------------------------------------------
+
+pursuant to this Section 9.2 on or after the Outside Date; provided, however,
+that the right to terminate this Agreement pursuant to this Section 9.2 shall
+not be available to any Party whose breach of any representation, warranty,
+covenant, or agreement set forth in this Agreement has been the cause of, or
+resulted in, the failure of the Plan to become effective on or before the
+Outside Date.
+
+Section 9.3 Effect of Termination.
+
+(a) Except as otherwise provided in this Section 9.3, in the event of
+termination of this Agreement in accordance with this Article IX, (a) this
+Agreement shall be of no further force and effect and each Party shall be
+released from its commitments, undertakings and agreements under or related to
+this Agreement, and shall have all the rights and remedies that it would have
+had it not entered into this Agreement, and shall be entitled to take all
+actions, whether with respect to the Restructuring or otherwise, that it would
+have been entitled to take had it not entered into this Agreement, including all
+rights and remedies available to it under applicable law; provided, however,
+that the rights and obligations of the Parties under Section 10.13, if
+applicable, with respect to the payment of fees and expenses incurred up to such
+date of termination shall survive such termination and all rights and remedies
+with respect to such claims shall not be prejudiced in any way; and (b) to the
+extent Bankruptcy Court permission shall be required for a Supporting Lender to
+change or withdraw (or cause to be changed or withdrawn) its vote in favor of
+the Plan or any release, the Company shall support and not object to such change
+or withdrawal and shall use reasonable best efforts to modify or amend its Plan
+or other pleadings, as applicable, to permit such Supporting Lender to change or
+withdraw (or cause to be changed or withdrawn) such vote or release. Nothing in
+this Section 9.3 shall relieve any Party from (i) liability for such Party’s
+breach of such Party’s obligations hereunder or (ii) obligations under this
+Agreement that expressly survive termination of this Agreement pursuant to
+Section 10.6.
+
+(b) In consideration of the Supporting Lenders having expended considerable time
+and expense in connection with this Agreement, the Plan and the Definitive
+Documentation, the Debtors shall pay to the Supporting Lenders the Expense
+Reimbursement Amount upon termination of this Agreement pursuant to Section 9.1
+(other than pursuant to Section 9.1(d)(i), Section 9.1(d)(iii),
+Section 9.1(d)(iv) or Section 9.1(d)(v)). Such Expense Reimbursement Amount
+shall be due and payable within five (5) Business Days after the termination of
+this Agreement. The Expense Reimbursement Amount shall, subject to Bankruptcy
+Court approval, be treated as administrative expenses in the Chapter 11 Case
+under Section 503(b)(1)(A) and Section 507(a)(2) of the Bankruptcy Code. The
+Debtors acknowledge and agree that: (i) the approval and payment of the Expense
+Reimbursement Amount are integral parts of the transactions contemplated by this
+Agreement; (ii) in the absence of the Debtors’ obligation to pay the Expense
+Reimbursement Amount, the Supporting Lenders would not have entered into this
+Agreement; (iii) the entry of the Supporting Lenders into this Agreement is
+necessary for preservation of the Estates and is beneficial to the Debtors
+because, in the Debtors’ business judgment, it will enhance the Debtors’ ability
+to maximize the value of their assets for the benefit of their creditors and
+other stakeholders; and (iv) the Expense Reimbursement Amount is reasonable in
+relation to the Supporting Lenders’ costs and efforts and to the magnitude of
+the transactions contemplated hereby and the Supporting Lenders’ lost
+opportunities resulting from the time spent pursuing the transactions
+contemplated hereby.
+
+ 
+
+59
+
+
+
+--------------------------------------------------------------------------------
+
+(c) Notwithstanding Section 9.3(a), the Supporting Lenders’ right to receive the
+one-time payment of the Expense Reimbursement Amount from the Debtors as
+provided in Section 9.3(b) shall be the sole and exclusive monetary remedy
+available to the Supporting Lenders against the Debtors with respect to this
+Agreement and the transactions contemplated hereby in the event that this
+Agreement is terminated pursuant to Section 9.1 (other than pursuant to
+Section 9.1(d)(i), Section 9.1(d)(iii), Section 9.1(d)(iv) or Section 9.1(d)(v))
+(including if terminated or terminable pursuant to one or more of such
+provisions), and upon such payment of the Expense Reimbursement Amount, the
+Debtors shall have no further liability or obligation arising out of any such
+breach of this Agreement or failure to consummate the Transactions in connection
+with such termination event. The Parties acknowledge and agree that in no event
+shall the Debtors be required to pay the Expense Reimbursement Amount on more
+than one occasion. The Debtors’ obligations to pay the Supporting Lenders the
+Expense Reimbursement Amount in accordance with the provisions of Section 9.3(b)
+will (i) be binding upon and enforceable against each Debtor immediately upon
+the Bankruptcy Court’s entering the Disclosure Statement Order, (ii) not be
+terminable or dischargeable thereafter for any reason, (iii) survive any
+subsequent conversion, dismissal or consolidation of the Chapter 11 Case, any
+plan of reorganization or liquidation in the Chapter 11 Case and (iv) survive
+the subsequent termination of this Agreement by any means. The Debtors’
+obligations to pay the Supporting Lenders the Expense Reimbursement Amount, as
+and when required under this Agreement, are intended to be, and upon entry of
+the Disclosure Statement Order are, binding upon (A) each Debtor, (B) any
+successors or assigns of any Debtor, (C) any trustee, examiner or other
+representative of an Estate, (D) the reorganized Debtors and (E) any other
+entity vested or revested with any right, title or interest in or to a Debtor,
+or any other Person claiming any rights in or control (direct or indirect) over
+any Debtor (each of (A) through (E), a “Successor”) as if such Successor were a
+Debtor hereunder. The Debtors’ obligations to pay the Supporting Lenders the
+Expense Reimbursement Amount, as and when required under this Agreement, may not
+be discharged under Sections 1141 or 727 of the Bankruptcy Code or otherwise and
+may not be abandoned under Section 554 of the Bankruptcy Code or otherwise.
+
+ARTICLE X
+
+GENERAL PROVISIONS
+
+Section 10.1 Agreement Effective Time. This Agreement shall become effective and
+binding upon each of the Parties as of the date when counterpart signatures
+pages to this Agreement are executed and delivered by the Company and the
+Supporting Lenders.
+
+Section 10.2 No Solicitation. This Agreement is not and shall not be deemed to
+be a solicitation for votes for the acceptance of the Plan (or any other
+chapter 11 plan) for the purposes of sections 1125 and 1126 of the Bankruptcy
+Code or otherwise or a solicitation to tender or exchange any securities. The
+acceptance of the Plan by the Supporting Lenders will not be solicited until the
+Supporting Lenders have received the Disclosure Statement and related ballots.
+
+Section 10.3 Purpose of Agreement. Each of the Parties acknowledges and agrees
+that this Agreement is being executed in connection with negotiations concerning
+the Restructuring.
+
+ 
+
+60
+
+
+
+--------------------------------------------------------------------------------
+
+Section 10.4 Admissibility of this Agreement. Each Party agrees that this
+Agreement, the Restructuring Term Sheet and all documents, agreements and
+negotiations relating thereto (including any prior drafts of any of the
+foregoing) shall not, pursuant to Rule 408 of the Federal Rules of Evidence, any
+applicable state rules of evidence and any other applicable law, foreign or
+domestic, be admissible into evidence or constitute an admission or agreement in
+any proceeding involving a Party, other than the final execution versions of
+this Agreement and the Exhibits thereto.
+
+Section 10.5 Several, Not Joint Obligations. The agreements, representations,
+and obligations of the Supporting Lenders under this Agreement are, in all
+respects, several and not joint. No prior history, pattern, or practice of
+sharing confidences among or between the Parties shall in any way affect or
+negate this Agreement.
+
+Section 10.6 Survival. Notwithstanding any termination of this Agreement
+pursuant to Article IX, the agreements and obligations of the Parties in this
+Article X and Section 9.3 shall survive such termination and shall continue in
+full force and effect for the benefit of the Parties in accordance with the
+terms hereof; provided, however, that any liability of a Party for failure to
+comply with the terms of this Agreement shall survive such termination.
+
+Section 10.7 Public Announcements. Unless otherwise required by applicable Law
+or by obligations of the Company or the Supporting Lenders or their respective
+Affiliates pursuant to any listing agreement with or rules of any securities
+exchange or in order to enforce a party’s rights or remedies under this
+Agreement, the Company, on the one hand, and the Supporting Lenders, on the
+other hand, shall consult with each other before issuing any other press release
+or otherwise making any public statement with respect to this Agreement, the
+Transactions or the activities and operations of the other and shall not issue
+any such release or make any such statement without the prior written consent of
+the other (such consent not to be unreasonably withheld, conditioned or
+delayed).
+
+Section 10.8 Notices. All notices, demands, requests, consents, approvals and
+other communications (each, a “Notice”) hereunder shall be in writing and
+delivered by (i) courier or messenger service, (ii) express or overnight mail,
+(iii) electronic mail, or (iv) by registered or certified mail, return receipt
+requested and postage prepaid, addressed to the respective Parties as follows:
+
+ 
+
+  (a)
+
+if to the Supporting Lenders, to:
+
+Deerfield Management Company, L.P.
+
+780 Third Avenue, 38th Floor
+
+New York, New York 10017
+
+Email:        bsendrowski@deerfield.com
+
+                  epress@deerfield.com
+
+Attention:  Bryan Sendrowski
+
+                  Elliot Press
+
+ 
+
+61
+
+
+
+--------------------------------------------------------------------------------
+
+with copies (which will not constitute notice) to:
+
+Sullivan & Cromwell LLP
+
+125 Broad Street
+
+New York, New York 10004
+
+Attention:    Brian E. Hamilton
+
+                    Ari B. Blaut
+
+                    James L. Bromley
+
+Email:         hamiltonb@sullcrom.com
+
+                    blauta@sullcrom.com
+
+                    bromleyj@sullcrom.com
+
+and
+
+ 
+
+  (b)
+
+if to the Company, to:
+
+Endologix, Inc.
+
+2 Musick
+
+Irvine, CA 92618
+
+Email:          jonopchenko@endologix.com
+
+Attention:    John Onopchenko, CEO
+
+with copies (which shall not constitute notice) to:
+
+DLA Piper LLP (US)
+
+1251 Avenue of the Americas
+
+New York, NY 10020-1104
+
+Email:          thomas.califano@dlapiper.com
+
+Attention:    Thomas R. Califano
+
+or to such other addresses a Party may hereafter designate. Notice by courier or
+messenger service or by express or overnight mail, shall be effective upon
+receipt. Notice by electronic mail shall be effective upon delivery by the
+sender. Notice by mail shall be complete at the time of deposit in the U.S. mail
+system, but any right or duty to do any act or make any response within any
+prescribed period or on a date certain after the service of such Notice given by
+mail shall be, without further action by any Party, automatically extended three
+(3) days.
+
+Section 10.9 Descriptive Headings; Interpretative Provisions. The headings of
+the sections, paragraphs and subsections of this Agreement are inserted for
+convenience only, and shall not affect the Agreement’s interpretation. The words
+“hereof,” “herein” and “hereunder” and words of like import used in this
+Agreement shall refer to this Agreement as a whole and not to any particular
+provision of this Agreement. References to Articles, Sections, Exhibits and
+Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement
+unless otherwise specified. All Exhibits, Annexes and Schedules annexed hereto
+or referred to herein are hereby incorporated in and made a part of this
+Agreement as if set forth in full herein. Any capitalized terms used in any
+Exhibit, Annex or Schedule but not otherwise defined therein, shall have the
+meaning as defined in this Agreement. Any singular term in this Agreement shall
+be deemed to include the plural, and any plural term the singular. Where a word
+or phrase is defined herein,
+
+ 
+
+62
+
+
+
+--------------------------------------------------------------------------------
+
+each of its other grammatical forms shall have a corresponding meaning. Whenever
+the words “include,” “includes” or “including” are used in this Agreement, they
+shall be deemed to be followed by the words “without limitation,” whether or not
+they are in fact followed by those words or words of like import. Whenever the
+last day for the exercise of any right or the discharge of any duty under this
+Agreement falls on other than a Business Day, the party hereto having such right
+or duty shall have until the next Business Day to exercise such right or
+discharge such duty. Unless otherwise indicated, the word “day” shall be
+interpreted as a calendar day. References to “dollars” or “$” mean United States
+dollars, unless otherwise clearly indicated to the contrary. No summary of this
+Agreement prepared by or on behalf of any party hereto shall affect the meaning
+or interpretation of this Agreement.
+
+Section 10.10 Representation by Counsel; No Strict Construction. Each Party
+acknowledges that it has been represented by counsel (or had the opportunity to
+be so represented and waived its right to do so) in connection with this
+Agreement and the transactions contemplated by this Agreement. Accordingly, any
+rule of law or any legal decision that would provide any Party with a defense to
+the enforcement of the terms of this Agreement against such Party based upon
+lack of legal counsel shall have no application and is expressly waived. This
+Agreement is the product of arm’s-length negotiations among the Parties and its
+provisions shall be interpreted in a neutral manner and one intended to effect
+the intent of the Parties. This Agreement shall be deemed to have been
+negotiated and prepared at the joint request, direction and construction of the
+Parties, at arm’s length and be interpreted without favor to any Party.
+
+Section 10.11 Entire Agreement. Subject to the Restructuring Term Sheet and the
+Definitive Documents, this Agreement constitutes the entire agreement of the
+Parties related to the Restructuring, and supersedes all other prior
+negotiations, agreements and understandings, whether written or oral, among the
+Parties with respect to the subject matter hereof; provided that the Parties
+acknowledge that any confidentiality agreements (if any) heretofore executed
+between the Company and any Supporting Lender (and such Supporting Lender’s
+advisors) shall continue in full force and effect in accordance with and only to
+the extent of their respective terms.
+
+Section 10.12 Governing Law and Venue; Waiver of Jury Trial.
+
+(a) This Agreement, and all Causes of Action (whether in contract, tort or
+statute) that may be based upon, arise out of or relate to this Agreement, or
+the negotiation, execution or performance of this Agreement (including any claim
+or cause of action based upon, arising out of or related to any representation
+or warranty made in or in connection with this Agreement or as an inducement to
+enter into this Agreement), shall be governed by, and enforced in accordance
+with, the Laws of the State of New York, including its statutes of limitations,
+without giving effect to any borrowing statute or applicable principles of
+conflicts of law to the extent that the application of the laws (including
+statutes of limitation) of another jurisdiction (whether of the State of New
+York or any other jurisdiction) would be required thereby.
+
+(b) By its execution and delivery of this Agreement, subject to the commencement
+of the Chapter 11 Cases, each Party hereby irrevocably and unconditionally
+consents to submit to the exclusive jurisdiction of the Bankruptcy Court for the
+purpose of any
+
+ 
+
+63
+
+
+
+--------------------------------------------------------------------------------
+
+Cause of Action, suit or proceeding arising out of or relating to this Agreement
+or any of the transactions contemplated hereby. At any time prior to the filing
+of the Chapter 11 Cases, each of the Parties hereby irrevocably and
+unconditionally submits to the exclusive jurisdiction of the state or federal
+courts located within in the Borough of Manhattan, the City of New York in the
+State of New York for purposes of any action, suit or proceeding arising out of
+or relating to this Agreement or any of the transactions contemplated hereby.
+Each party hereto hereby consents to service of process in the manner and at the
+address set forth in Section 10.8.
+
+(c) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
+PERMITTED BY LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
+ACTION BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
+TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HEREBY ACKNOWLEDGES AND CERTIFIES
+(I) THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS
+REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
+EVENT OF ANY ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT
+UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) IT MAKES
+THIS WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS
+AGREEMENT, THE RESTRUCTURING TERM SHEET AND THE DEFINITIVE DOCUMENTS AND THE
+TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL
+WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 10.12(c).
+
+Section 10.13 Transaction Expenses. The Debtors shall pay (a) one (1) Business
+Day prior to the Petition Date, (b) subject to the DIP Orders, including the
+payment procedures set forth therein, on the Effective Date and (c) otherwise in
+accordance with the terms of any applicable fee letters and court orders during
+the pendency of the Chapter 11 Cases, all accrued and unpaid fees, costs and
+expenses of the Supporting Lenders in connection with the Restructuring
+(provided that the amount paid pursuant to (a) above shall be agreed by the
+Debtors and the Supporting Lenders and shall be less than the total amount of
+accrued and unpaid expenses owing to the Supporting Lenders as of such date)
+without the need to file any application with, or obtain any order from, the
+Bankruptcy Court, including, without limitation, the fees, costs and expenses of
+(i) Sullivan & Cromwell LLP, (ii) Houlihan Lokey Capital, Inc., (iii) local
+Texas counsel, (iv) any other professionals that may be retained by the
+Supporting Lenders in connection with the Restructuring and (v) counsel for the
+Prepetition Agents. The Debtors shall also enter into ordinary and customary fee
+letters with the foregoing professionals and fund the retainers and other
+amounts required thereunder as a condition precedent to the effectiveness of
+this Agreement.
+
+Section 10.14 Amendments and Waivers.
+
+(a) Any amendment or modification of any term or provision of this Agreement or
+the Restructuring and any waiver of any term or provision of this Agreement or
+of the Restructuring or of any default, misrepresentation, or breach of warranty
+or covenant hereunder shall not be valid unless the same shall be in writing and
+(i) signed by the Company and the DIP Agent or (ii) confirmed by email by both
+counsel to the Company and counsel to the
+
+ 
+
+64
+
+
+
+--------------------------------------------------------------------------------
+
+DIP Agent representing that it is acting with the authority of the Company and
+the DIP Agent, respectively.
+
+(b) Any waiver shall not be deemed to extend to any prior or subsequent default,
+misrepresentation, or breach of warranty or covenant hereunder or affect in any
+way any rights arising by virtue of any prior or subsequent default,
+misrepresentation, or breach of warranty or covenant.
+
+(c) The failure of any Party to exercise any right, power or remedy provided
+under this Agreement or otherwise available in respect hereof at law or in
+equity, or to insist upon compliance by any other Party with its obligations
+hereunder shall not constitute a waiver by such Party of its right to exercise
+any such or other right, power or remedy or to demand such compliance.
+
+(d) Notwithstanding anything to the contrary in this Section 10.14, no
+amendment, modification or waiver of any term or provision of this Agreement or
+the Restructuring shall be effective with respect to any Supporting Lender
+without such Supporting Lender’s prior written consent to the extent such
+amendment, modification or waiver materially affects such Supporting Lender in a
+manner that is disproportionately adverse to such Supporting Lender in relation
+to the other Supporting Lenders.
+
+(e) All rights, powers, and remedies provided under this Agreement or otherwise
+available in respect hereof at law or in equity shall be cumulative and not
+alternative, and the exercise of any right, power, or remedy thereof by any
+Party shall not preclude the simultaneous or later exercise of any other such
+right, power, or remedy by such Party.
+
+Section 10.15 Parties, Succession and Assignment. This Agreement is intended to
+bind and inure to the benefit of the Parties and their respective successors,
+assigns, heirs, executors, estates (including the Estates), administrators and
+representatives. No rights or obligations of any Party under this Agreement may
+be assigned or transferred to any other person or entity except as otherwise
+expressly provided herein. Nothing in this Agreement, express or implied, shall
+give to any person or entity, other than the Parties (and those permitted
+assigns under Section 3.3), any benefit or any legal or equitable right, remedy
+or claim under this Agreement; provided, however, that a Supporting Lender may
+assign some or all of its rights or delegate some or all of its obligations
+hereunder to one or more Affiliates without any other Party’s consent. Upon any
+such permitted assignment, the references in this Agreement to the applicable
+Party will also apply to any such assignee unless the context otherwise
+requires.
+
+Section 10.16 No Waiver of Participation and Reservation of Right. Except as
+expressly provided in this Agreement or the Plan, nothing herein is intended to,
+nor does, in any manner waive, limit, impair, or restrict any right of any Party
+or the ability of each of the Parties to protect and preserve its rights,
+remedies and interests, including Claims against and interests in the Company.
+If the Restructuring is not consummated, or following the occurrence of a
+Supporting Lender Termination Event, a Company Termination Event, an event
+triggering automatic termination pursuant to Section 9.1(c), or the termination
+of this Agreement, nothing herein shall be construed as a waiver by any Party of
+any or all of such Party’s rights, and the Parties expressly reserve any and all
+of their respective rights. This Agreement, the Plan, and any
+
+ 
+
+65
+
+
+
+--------------------------------------------------------------------------------
+
+related document shall in no event be construed as or be deemed to be evidence
+of an admission or concession on the part of any Party of any claim or fault or
+liability or damages whatsoever. The Parties acknowledge that this Agreement,
+the Plan, and all negotiations related hereto are part of a proposed settlement
+of matters that may otherwise be the subject of litigation.
+
+Section 10.17 No Third-Party Beneficiaries. Unless expressly stated herein, this
+Agreement shall be solely for the benefit of the Parties and no other person or
+entity shall be a third-party beneficiary.
+
+Section 10.18 Counterparts; Effectiveness. This Agreement and any amendments,
+joinders, consents or supplements, may be executed in one or more counterparts,
+each of which shall be deemed an original and all of which shall constitute one
+and the same agreement. Scanned signatures on this Agreement shall be treated as
+originals for all purposes. Executed copies of this Agreement may be delivered
+by facsimile or by electronic mail in portable document format (.pdf), which
+shall be deemed to be an original for the purposes of this Section 10.18.
+
+Section 10.19 Severability. The invalidity or unenforceability at any time of
+any provision hereof shall not affect or diminish in any way the continuing
+validity and enforceability of the remaining provisions hereof. If any
+provision, covenant or restriction of this Agreement is held by a court of
+competent jurisdiction or other authority of competent jurisdiction to be
+invalid, void or unenforceable, or the application of such provision, covenant
+or restriction to any Person or any circumstance, is held by a court of
+competent jurisdiction or other authority to be invalid, void or unenforceable,
+(a) a suitable and equitable provision shall be substituted therefor in order to
+carry out, so far as may be valid and enforceable, the intent and purpose of
+such invalid or unenforceable provision and (b) the remainder of this Agreement
+and the application of such provision, covenant or restriction to other Persons
+or circumstances shall not be affected by such invalidity or unenforceability,
+nor shall such invalidity or unenforceability affect the validity or
+enforceability of such provision, or the application of such provision, in any
+other jurisdiction and the remainder of the terms, provisions, covenants and
+restrictions of this Agreement shall remain in full force and effect and shall
+in no way be affected, impaired or invalidated.
+
+Section 10.20 Specific Performance. Each Party hereto recognizes and
+acknowledges that a breach by it of any covenants or agreements contained in
+this Agreement would cause the other Parties to sustain damages for which such
+Parties would not have an adequate remedy at law for money damages, and
+therefore each Party hereto agrees that in the sole event of any breach, the
+other Parties shall be entitled to the remedy of specific performance and
+injunctive or other equitable relief (including attorney’s fees and costs) to
+enforce such covenants and agreements, in addition to any other remedy to which
+such non-breaching Party may be entitled, at law or in equity, without the
+necessity of proving the inadequacy of money damages as a remedy, including an
+order of the Bankruptcy Court requiring any Party to comply promptly with any of
+its obligations hereunder.
+
+Section 10.21 Conflicts. In the event the terms and conditions set forth in the
+Restructuring Term Sheet and in this Agreement are inconsistent, the
+Restructuring Term Sheet shall control. In the event of any conflict among the
+terms and provisions of the Plan, this
+
+ 
+
+66
+
+
+
+--------------------------------------------------------------------------------
+
+Agreement and the Restructuring Term Sheet, the terms and provisions of the Plan
+shall control. In the event of any conflict among the terms and provisions of
+the Confirmation Order, the Plan, this Agreement and the Restructuring Term
+Sheet, the terms of the Confirmation Order shall control. Notwithstanding the
+foregoing, nothing contained in this Section 10.21 shall affect, in any way, the
+requirements that the Plan and the Confirmation Order be in all material
+respects materially consistent with this Agreement and the Restructuring Term
+Sheet and the requirements set forth herein for the amendment of this Agreement.
+
+[Signature Page Follows]
+
+ 
+
+67
+
+
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, the Company and the Supporting Lenders have caused this
+Agreement to be executed on their behalf as of the date first written above.
+
+ 
+
+ENDOLOGIX, INC.
+
+By:  
+
+/s/ John Onopchenko
+
+ 
+
+Name: John Onopchenko
+
+ 
+
+Title: Chief Executive Office
+
+
+
+--------------------------------------------------------------------------------
+
+SUPPORTING LENDERS:
+
+DEERFIELD PRIVATE DESIGN FUND III, L.P.
+
+By:   Deerfield Mgmt III, L.P., General Partner By:   J.E. Flynn Capital III,
+LLC, General Partner By:  
+
+/s/ David Clark
+
+  Name: David Clark   Title:   Authorized Signatory
+
+DEERFIELD PRIVATE DESIGN FUND IV, L.P.
+
+By:   Deerfield Mgmt IV, L.P., General Partner By:   J.E. Flynn Capital IV, LLC,
+General Partner By:  
+
+/s/ David Clark
+
+  Name: David Clark   Title:   Authorized Signatory
+
+DEERFIELD PARTNERS, L.P.
+
+By:   Deerfield Mgmt, L.P., General Partner By:   J.E. Flynn Capital, LLC,
+General Partner By:  
+
+/s/ David Clark
+
+  Name: David Clark   Title:   Authorized Signatory
+
+
+
+--------------------------------------------------------------------------------
+
+Schedule 1
+
+Company Subsidiaries
+
+ 
+
+  1.
+
+CVD/RMS Acquisition Corp., a Delaware corporation.
+
+ 
+
+  2.
+
+Nellix, Inc., a Delaware corporation.
+
+ 
+
+  3.
+
+RMS/Endologix Sideways Merger Corp., a Delaware corporation.
+
+ 
+
+  4.
+
+ELGX International Holdings GP, a Cayman Islands company.
+
+ 
+
+  5.
+
+Endologix International Holdings B.V., a Dutch corporation.
+
+ 
+
+  6.
+
+Endologix International B.V., a Dutch corporation.
+
+ 
+
+  7.
+
+Endologix New Zealand Co., a New Zealand unlimited liability company.
+
+ 
+
+  8.
+
+Endologix Bermuda L.P., a Bermuda partnership.
+
+ 
+
+  9.
+
+Endologix Italia S.r.l., an Italian corporation.
+
+ 
+
+  10.
+
+Endologix Singapore Private Limited, a Singaporean limited private company.
+
+ 
+
+  11.
+
+Endologix Poland sp. zo.o, a Polish limited company.
+
+ 
+
+  12.
+
+TriVascular Technologies, Inc., a Delaware corporation.
+
+ 
+
+  13.
+
+TriVascular, Inc., a California corporation.
+
+ 
+
+  14.
+
+TriVascular Sales LLC, a Texas limited liability company.
+
+ 
+
+  15.
+
+TriVascular Germany GmbH, a German limited liability company.
+
+ 
+
+  16.
+
+TriVascular Italia Sarl, an Italian limited liability company.
+
+ 
+
+  17.
+
+Endologix Canada, LLC, a Delaware limited liability company.
+
+
+
+--------------------------------------------------------------------------------
+
+Exhibit A
+
+Restructuring Term Sheet
+
+[Attached]
+
+
+
+--------------------------------------------------------------------------------
+
+Exhibit B
+
+Interim DIP Order
+
+[Attached]
+
+
+
+--------------------------------------------------------------------------------
+
+Exhibit C
+
+Form of Transfer Joinder
+
+Form of Transfer Joinder
+
+The undersigned (“Transferee”) hereby (i) acknowledges that it has read and
+understands the Restructuring Support Agreement (the “Agreement”), dated as of
+July 5, 2020 among Endologix, Inc. (“Endologix”) and the Supporting Lenders,1
+and (ii) agrees to be bound by the terms and conditions thereof with respect to
+all of its owned or controlled Prepetition Credit Agreement Claims to the extent
+and in the same manner as if Transferee was a Supporting Lender thereunder.
+Transferee hereby shall be deemed a “Supporting Lender” and a “Party” under the
+Agreement, and shall be deemed to make all of the representations and warranties
+of a Supporting Lender set forth in the Agreement.
+
+ 
+
+[TRANSFEREE]
+
+By:  
+
+                
+
+ 
+
+Name:
+
+ 
+
+Title:
+
+Aggregate amount of Prepetition Credit Agreement Claims (whether owned directly
+by such Transferee or for which such Transferee has investment or voting
+discretion or control):
+
+ 
+
+[ADDRESS]
+
+Attention: [________]
+
+Email: [________]
+
+ 
+
+1 
+
+Capitalized terms not defined herein shall have the meanings given to such terms
+in the Agreement.
+
+
+
+--------------------------------------------------------------------------------
+
+Exhibit D
+
+Milestones
+
+ 
+
+With respect to the Chapter 11 Cases, no later than 11:59 p.m. (Central Time)
+on:
+
+1.  Petition Date
+
+   Plan, Disclosure Statement filed.
+
+2.  Petition Date + 2 days
+
+   Hearing to approve ‘first day’ motions.
+
+3.  Petition Date + 3 days
+
+   Solicitation Procedures filed.
+
+4.  40 days after the Petition Date
+
+  
+
+Disclosure Statement approval hearing.
+
+Disclosure Statement Order entered.
+
+5.  60 days after the Petition Date
+
+   DIP Final Order approved.
+
+6.  75 days after the Petition Date
+
+  
+
+Confirmation Hearing to approve Plan.
+
+Confirmation Order entered within three business days following conclusion of
+Confirmation Hearing.
+
+7.  As promptly as possible after entry of the Confirmation Order but not later
+than 90 days after the Petition Date
+
+   Plan Effective Date.
+
+
+
+--------------------------------------------------------------------------------
+
+CONFIDENTIAL
+
+ 
+
+ 
+
+ 
+
+COMPANY DISCLOSURE LETTER
+
+TO
+
+RESTRUCTURING SUPPORT AGREEMENT1
+
+AMONG
+
+ENDOLOGIX, INC.
+
+AND
+
+THE SUPPORTING LENDERS IDENTIFIED HEREIN
+
+DATED AS OF JULY 5, 2020
+
+ 
+
+ 
+
+ 
+
+ 
+
+1
+
+Capitalized terms used herein but not otherwise defined have the meanings
+ascribed to them in the Restructuring Support Agreement.
+
+
+
+--------------------------------------------------------------------------------
+
+Section 1.1
+
+“Knowledge” of the Debtors
+
+ 
+
+1.
+
+John Onopchenko
+
+ 
+
+2.
+
+Vaseem Mahboob
+
+ 
+
+3.
+
+Cindy Pinto
+
+ 
+
+4.
+
+Tim Brady
+
+ 
+
+5.
+
+Simpson Kwan
+
+ 
+
+6.
+
+James Tejedor
+
+ 
+
+7.
+
+Reyna Fernandez
+
+ 
+
+8.
+
+Tim Benner
+
+ 
+
+9.
+
+Matt Thompson
+
+ 
+
+10.
+
+Jeff Fecho
+
+ 
+
+11.
+
+Jeff Brown
+
+ 
+
+12.
+
+Mike Chobotov
+
+ 
+
+13.
+
+Valerie Tansley
+
+ 
+
+14.
+
+Elisa Webb
+
+ 
+
+15.
+
+Joey Lopes
+
+ 
+
+16.
+
+Steffanie Cook
+
+ 
+
+17.
+
+Tim Chaplin
+
+ 
+
+18.
+
+Carlos Ortega
+
+ 
+
+19.
+
+Barbara Kelleter
+
+ 
+
+20.
+
+Kimberly Stanley
+
+ 
+
+21.
+
+Mark Phillips
+
+ 
+
+22.
+
+Virgil Aguirre
+
+ 
+
+23.
+
+John Washington
+
+ 
+
+24.
+
+Janet McCusker
+
+ 
+
+25.
+
+Vay Yam
+
+ 
+
+26.
+
+Regional Sales Managers
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.2
+
+Capitalization
+
+Company and its Subsidiaries Outstanding Equity Interests
+
+ 
+
+Name of Issuer
+
+  
+
+Authorized
+
+Securities
+
+  
+
+Issued and
+
+Outstanding Securities
+
+  
+
+Certificated
+(Yes or No)
+
+  
+
+Loan Party/
+
+Subsidiary Owner
+
+Endologix, Inc.    170,000,000 Shares of Common Stock, $0.001 par value   
+19,299,228 Shares of Common Stock Issued and 19,173,845 Outstanding    Yes   
+N.A.    5,000,000 Shares of Preferred Stock, $0.001 par value, 1,150,000
+designated as Series DF-1 Preferred Stock    14,648.75 Shares of Series DF-1
+Preferred Stock Outstanding    Yes    N.A. Nellix, Inc.    1,000 Shares of
+Common Stock, $0.001 par value    100 Shares of Common Stock    Yes   
+Endologix, Inc. CVD/RMS Acquisition Corp.    100 Shares of Common Stock, $0.001
+par value    100 Shares of Common Stock    Yes    Endologix, Inc. RMS/Endologix
+Sideways Merger Corp.    100 Shares of Common Stock, $0.001 par value    100
+Shares of Common Stock    Yes    Endologix, Inc. TriVascular Technologies, Inc.
+   1,000 Shares of Common Stock, $0.001 par value    100 Shares of Common Stock
+   Yes    Endologix, Inc. ELGX International Holdings GP    Unspecified Number
+of Partnership Interests    Unspecified Number of Partnership Interests    No   
+Endologix, Inc. Endologix Bermuda, L.P.    Unspecified Number of Partnership
+Interests    Unspecified Number of Partnership Interests    No    Endologix,
+Inc. Endologix Singapore Private Limited    Unspecified Number of Company
+Interests    Unspecified Number of Company Interests    No    Endologix, Inc.
+Endologix New Zealand Co.    Unspecified Number of Company Interests   
+Unspecified Number of Company Interests    No    Endologix, Inc. TriVascular,
+Inc.    100 Shares of Common stock, $0.01 par value    100 Shares of Common
+Stock    No    TriVascular Technologies, Inc.
+
+
+
+--------------------------------------------------------------------------------
+
+Name of Issuer
+
+  
+
+Authorized
+
+Securities
+
+  
+
+Issued and
+
+Outstanding Securities
+
+  
+
+Certificated
+(Yes or No)
+
+  
+
+Loan Party/
+
+Subsidiary Owner
+
+Endologix International Holdings B.V.    Unspecified Number of Company Interests
+��  Unspecified Number of Company Interests    No    Endologix Bermuda, L.P.
+Endologix Poland spolkda z ograniczona odpowiedzialnoscia    Unspecified Number
+of Company Interests    Unspecified Number of Company Interests    No   
+Endologix International Holdings B.V. Endologix International B.V.   
+Unspecified Number of Company Interests    Unspecified Number of Company
+Interests    No    Endologix International Holdings B.V. Endologix Italia S.r.l
+   Unspecified Number of Company Interests    Unspecified Number of Company
+Interests    No    Endologix International Holdings B.V. TriVascular Sales LLC
+   1,000 Units of Membership Interests    1,000 Units of Membership Interests   
+No    TriVascular, Inc. Endologix Canada, LLC    1,000 Units of Membership
+Interests    1,000 Units of Membership Interests    No    TriVascular, Inc.
+TriVascular Italia Sarl    Unspecified Number of Company Interests   
+Unspecified Number of Company Interests    No    TriVascular, Inc. TriVascular
+Germany GmbH    Unspecified number of Company Interests    Unspecified number of
+Company Interests    No    TriVascular, Inc.
+
+Options and Equity Incentive/Compensation Plans:
+
+2015 Stock Incentive Plan: The Company’s 2015 Stock Incentive Plan as amended
+(the “2015 Plan”) authorizes the grant of equity awards to purchase up to
+5.13 million shares of Common Stock. As of June 30, 2020 approximately
+1.9 million shares were reserved for issuance under outstanding stock options,
+including stock options granted under equity compensation plans preceding the
+2015 Plan, and approximately 730,000 shares were subject to unvested restricted
+stock awards. The outstanding stock options have exercise prices ranging from
+$4.71 to $175.80 and a weighted average exercise price of $10.15. There have
+been no material changes to the items discussed in this paragraph as of the date
+of the Agreement.
+
+Amended and Restated 2006 Employee Stock Purchase Plan (the “ESPP”): As of
+June 30, 2020, approximately 374,000 shares of Common Stock were available for
+issuance under the ESPP. There have been no material changes to such amount as
+of the date of the Agreement.
+
+2017 Inducement Stock Incentive Plan: The Board has reserved 900,000 shares of
+the Company’s Common Stock for issuance pursuant to awards granted under the
+2017 Inducement Stock Incentive Plan. As of June 30, 2020, approximately 218,000
+shares of Common Stock were available for
+
+
+
+--------------------------------------------------------------------------------
+
+issuance under this plan. There have been no material changes to such amount as
+of the date of the Agreement.
+
+Non-Plan Inducement Grants: In connection with its merger with TriVascular
+Technologies, Inc., on February 4, 2016 the Company issued non-plan inducement
+stock options to purchase 140,000 shares of Common Stock at an exercise price of
+$75.30 per share, and non-plan inducement restricted stock units for
+approximately 8,000 shares of Common Stock. As of June 30, 2020, there were
+non-plan inducement stock options outstanding to purchase approximately 14,000
+shares of Common Stock of the Company at a weighted-average exercise price of
+$20.40 per share and zero outstanding non-plan inducement restricted stock
+units.
+
+Warrants:
+
+In connection with its merger with TriVascular Technologies, Inc. on February 3,
+2016, the Company assumed unexercised out-of-the-money warrants of TriVascular
+Technologies, Inc., which converted into warrants to purchase 3,508 shares of
+Common Stock, 2,426 at an exercise price of $125.80 per share and 1,082 at an
+exercise price of $282.10 per share.
+
+The Company has previously issued warrants to Lenders (as defined in the
+Prepetition Facility Agreement) to purchase an aggregate of 1,522,002 shares of
+Common Stock of the Company at an exercise price of $6.61 per share.
+
+On April 3, 2019, the Company issued and sold a pre-paid warrant exercisable for
+the Company’s common stock at an exercise price of $6.61 per share to an
+investor, as contemplated pursuant to Equity Financing Documents (as defined in
+the Prepetition Facility Agreement). The exercise price for the pre-paid warrant
+was fully paid at issuance and is exercisable at any time until April 3, 2029,
+subject to satisfaction of certain equity ownership limitations as described in
+such warrant.
+
+Convertible Notes:
+
+2020 3.25% Convertible Notes; 2024 5.0% Convertible Senior Notes: On November 2,
+2015, the Company issued $125.0 million aggregate principal amount of 3.25%
+Convertible Notes. Pursuant to the terms of the Prepetition Facility Agreement
+with Deerfield, $40.5 million of the aggregate principal amount of the 3.25%
+Convertible Notes was cancelled; $84.5 million aggregate principal amount of
+3.25% Convertible Notes were thereafter outstanding. At the Second Amendment
+Effective Date (as defined in the Prepetition Facility Agreement), approximately
+$73.4 million of the remaining $84.5 million of 3.25% Convertible Notes was
+exchanged for (i) approximately $42 million of new 5.0% Voluntary Convertible
+Senior Notes due 2024; and $25 million of new 5.0% Mandatory Convertible Senior
+Notes due 2024. At the Fourth Amendment Effective Date (as defined in the
+Prepetition Facility Agreement), approximately $11.00 million of aggregate
+principal plus outstanding interest of the remaining outstanding 3.25%
+Convertible Notes will be exchanged for approximately $11.1 million of new 5.0%
+Voluntary Convertible Senior Notes due 2024.
+
+Pursuant to the Prepetition Facility Agreement, the Company may issue Conversion
+Shares (as defined in the Prepetition Facility Agreement) pursuant to and in
+accordance with the terms of the Notes (as defined in the Prepetition Facility
+Agreement).
+
+Other Rights to Securities of the Company:
+
+
+
+--------------------------------------------------------------------------------
+
+In connection with its merger with Nellix, Inc. (“Nellix”), the Company agreed
+to issue shares of Common Stock to the former stockholders of Nellix upon the
+Company’s receipt of FDA approval to sell its Nellix EVAS System in the United
+States (the “PMA Milestone”). The number of shares of Common Stock issuable to
+the former stockholders of Nellix upon achievement of the PMA Milestone shall
+equal the quotient obtained by dividing $15.0 million by the average per share
+closing price of Common Stock on The Nasdaq Global Select Market for each of the
+30 consecutive trading days ending with the fifth trading day immediately
+preceding the date of the Company’s receipt of FDA approval to sell its Nellix
+EVAS System in the United States, subject to a stock price floor of $45.00 per
+share, but not subject to a stock price ceiling.
+
+Registration Rights
+
+Amended and Restated Registration Rights Agreement dated as of August 9, 2018,
+as amended, by and among the Company, the Lenders and Agent.
+
+Agreement and Plan of Merger and Reorganization, dated October 27, 2010, by and
+among the Company, Nepal Acquisition Corporation, Nellix, Inc., certain of
+Nellix, Inc.’s stockholders listed therein and Essex Woodlands Health Ventures,
+Inc., as representative of Nellix, Inc.’s stockholders (Section 6.12 contains
+registration obligation)
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.10
+
+Litigation
+
+(a)
+
+Active Matters: Set forth below are certain legal matters that are either in
+active litigation or could proceed to active litigation. It is possible that the
+Company’s aggregate liability arising for monetary judgements or relief arising
+out of these matters, and other litigation involving the Company, could be
+material to the Company or its Subsidiaries, however the Company does not
+believe that any one of the matters discussed below (including the AFX product
+liability suits considered as a consolidated group) would individually result in
+monetary judgements or relief which would be material to the Company or its
+Subsidiaries.
+
+ 
+
+  •  
+
+Derivative Lawsuits: As of June 11, 2017, four shareholders have filed
+derivative lawsuits on behalf of the Company, the nominal plaintiff, based on
+allegations substantially similar to those alleged by lead plaintiff in Vicky
+Nguyen v. Endologix, Inc., et al., Case No. 2:17-cv-00017 (United States
+District Court, Central District of California). Those actions consist of:
+Sindlinger v. McDermott et al., Case No. BC662280 (Los Angeles Superior Court);
+Abraham v. McDermott et al., Case No. 30-2018-00968971-CU-BT-CSC (Orange County
+Superior Court); and Green v. McDermott et al., Case No. 8:17-cv-01155-AB
+(PLAx), consolidated with Cocco v. McDermott et al., Case No. 8:17-cv-01183-AB
+(PLAx) (U.S. District Court for the Central District of California). Plaintiffs
+in the Sindlinger, Abraham and Green derivative actions have agreed to stay
+litigation pending resolution of the Nguyen action by the United States Court of
+Appeals for the Ninth Circuit. A related case, Ahmed v. Endologix, Inc., et al.
+(Filed January 11, 2017 in the United States District Court, Central District of
+California; Case No. 8:17-cv-00061) was consolidated into Nguyen v. Endologix,
+Inc.
+
+ 
+
+  •  
+
+Kerr: On July 30, 2019, an action was brought in United States District Court
+for the Central District of California (Case No. 8:19-cv-01457) against the
+Company and certain other Loan Parties by Andrew Kerr, M.D., alleging
+infringement of U.S. Patent Nos. 8,257,423, 9,050,182 and 10,105,209, which
+allegedly were issued to and are owned by Dr. Kerr. As alleged in the complaint,
+the accused infringing devices include the Ovation Abdominal Stent Graft System,
+the Ovation Prime Abdominal Stent Graft System, the Ovation Prime, the Ovation
+IX Abdominal Stent Graft System, and the Ovation iX (collectively, the “Ovation
+Devices”). The Company believes plaintiff’s claims are without merit and is
+vigorously defending the action.
+
+ 
+
+  •  
+
+AFX: The Company has been named as a defendant in a number of complaints, in
+each case alleging a variety of product liability-based claims pertaining to the
+Company’s AFX with Strata product. The Company believes it has insurance
+responsive to these claims, which insurance provides for a $150,000 per claim
+deductible and an aggregate one million dollar aggregate deductible (for the
+policy year applicable to these claims). The Company believes plaintiffs’ claims
+are without merit and is vigorously defending the action.
+
+ 
+
+  •  
+
+Kaiser: The Company has received a letter, dated January 10, 2020, from outside
+counsel to KP Select, LLC, one of the Kaiser Permanent family of companies
+(“Kaiser”), demanding that the Company provide reimbursement to Kaiser in the
+amount of $4.1 million dollars for costs allegedly incurred by Kaiser for
+treating patients whose AFX Endovascular AAA Systems were subject to the July
+2018 recall notice. This demand was subsequently lowered to $2.8 million dollars
+in March 2020 The Company vigorously disputes this payment demand. Since it is
+presently not possible to determine the outcome of any future discussions with
+Kaiser regarding this matter, and
+
+
+
+--------------------------------------------------------------------------------
+
+ 
+
+whether litigation will ensue, or the outcomes associated with potential
+litigation, no provision has been made in the Company’s financial statements for
+the ultimate resolution.
+
+ 
+
+  •  
+
+Royalty Demand: The Company has received a letter, dated February 13, 2020, from
+a licensor under one of the Company’s inbound patent license agreements alleging
+that the Company is in breach of certain royalty payment obligations under such
+agreement. In this letter, licensor has expressed a desire to reach a reasonable
+and amicable resolution of this matter. The Company vigorously disagrees with
+this payment demand. Since it is presently not possible to determine the outcome
+of any future discussions with the licensor regarding this matter, and whether
+litigation will ensue, or the outcomes associated with potential litigation, no
+provision has been made in the Company’s financial statements at this time for
+the ultimate resolution. Should a bona fide dispute ensure, it is possible that
+the Company will be required to deposit the disputed amount into escrow pending
+resolution of the dispute.
+
+ 
+
+  •  
+
+Other IP Infringement Notice: The Loan Parties have received notice from an
+individual claiming that certain of our products read on certain issued patents
+held by such individual. The Loan Parties, after consultation with independent
+patent counsel, strongly disagrees with these claims. Since it is presently not
+possible to determine the outcome of any future discussions with these
+individuals in regard to their patents, and whether litigation will ensue, or
+the outcomes associated with potential litigation, no provision has been made in
+the Company’s financial statements for the ultimate resolution.
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.11
+
+Intellectual Property
+
+(a)
+
+See attached list of Registered Intellectual Property.
+
+(b)
+
+The matters described under the headings “Kaiser” and “Other IP Infringement
+Notice” in Section 5.10 are hereby incorporated by reference.
+
+(d)(i)
+
+The matters described under the headings “Kaiser” and “Other IP Infringement
+Notice” in Section 5.10 are hereby incorporated by reference.
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.13
+
+Real Property
+
+(b)
+
+Leased Real Property:
+
+ 
+
+Loan Party or Subsidiary
+
+  
+
+Complete street and mailing address, including zip code
+
+  
+
+Landlord name and contact
+
+information
+
+Endologix, Inc.   
+
+2 Musick, Irvine, County of Orange,
+
+California 92618 U.S.A.;
+
+33 and 35 Hammond, Irvine, County of
+
+Orange, California 92618 U.S.A.
+
+   The Northwestern Mutual Life Insurance Company Endologix International
+Holdings B.V.   
+
+Europalaan 30, 5232 BC, ‘s-Hertogenbosch,
+
+The Netherlands
+
+   EL30 B.V. TriVascular Technologies, Inc.    3910 Brickway Blvd., Santa Rosa,
+County of Sonoma, CA 95403 U.S.A.    Sonoma Airport Properties LLC Endologix
+Singapore Private Limited    6 Raffles Quay #16-01 Singapore 048580    JustCo
+(Raffles Quay) Pte. Ltd. Endologix International B.V.    Rahmannstraße 11, 65760
+Eschborn, Germany    IntReal International Real Estate
+Kapitalverwaltungsgesellschaft mbH
+
+Subleased Real Property:
+
+ 
+
+Loan Party or Subsidiary
+
+  
+
+Complete street and mailing address, including
+zip code
+
+  
+
+Landlord and sublandlord name and contact
+information
+
+N/A      
+
+Other Real Property Operated or Occupied:
+
+ 
+
+Loan Party or Subsidiary
+
+  
+
+Complete street and mailing address, including
+zip code
+
+  
+
+Nature of use
+
+N/A
+
+     
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.14(a)
+
+Material Contracts
+
+(i)
+
+ 
+
+  1.
+
+Commercial Premium Finance Agreement, dated May 12, 2020 by and between the
+Company and First Insurance Funding.
+
+ 
+
+  2.
+
+Engagement Letter, dated March 4, 2020, by and between the Company and Jefferies
+LLC
+
+ 
+
+  3.
+
+Marketing & Sales Preferred Distribution Agreement, dated September 1, 2019, by
+and between the Company and Merit Medical Systems, Inc.
+
+ 
+
+  4.
+
+Engagement Letter, dated September 7, 2017, by and between the Company and DLA
+Piper LLP (US).
+
+ 
+
+  5.
+
+Master Services Agreement, dated June 24, 2020, by and between the Company and
+Ernst & Young LLP.
+
+ 
+
+  6.
+
+Engagement Letter, dated September 24, 2019, by and between the Company and
+KPMG.
+
+ 
+
+  7.
+
+Engagement Letter, dated April 7, 2020, by and between the Company and FTI
+Consulting Inc.
+
+ 
+
+  8.
+
+Carrier Agreement, by and between the Company and United Parcel Services, Inc.
+
+(ii)
+
+ 
+
+  1.
+
+Amended and Restated Distribution Agreement for Japan, dated July 4, 2016, by
+and between the Company and Japan Lifeline (JLL), as amended by that certain
+Amendment No. 1 to Amended and Restated Distribution Agreement for Japan dated
+November 9, 2018.
+
+ 
+
+  2.
+
+International Distribution Agreement, dated December 31, 2018, by and between
+the Company and Angiocor S.A, as amended by that certain Amendment No. 1 to
+International Distribution Agreement dated January 1, 2020.
+
+ 
+
+  3.
+
+Sales Pricing Agreement, dated November 26, 2019, by and between Scottsdale
+Healthcare Hospitals (d/b/a HonorHealth) and the Company, as amended by that
+certain First Amendment to Sales Pricing Agreement, dated January 23, 2020.
+
+ 
+
+  4.
+
+International Distribution Agreement, dated January 1, 2019, by and between the
+Company and H.S. S.r.l., as amended by that certain Amendment No. 1 to
+International Distribution Agreement, dated February 3, 2020.
+
+ 
+
+  5.
+
+International Distribution Agreement, dated March 22, 2019, by and between the
+Company and Somnotec(S) Pte Ltd.
+
+ 
+
+  6.
+
+Special Pricing Agreement, dated May 13, 2016, by and between the Company and
+Freeman Health Systems, as amended.
+
+
+
+--------------------------------------------------------------------------------
+
+  7.
+
+Special Pricing Agreement, dated June 9, 2016, by and between the Company and
+Kaleida Health, as amended by that First Amendment to Special Pricing Agreement
+dated October 15, 2018.
+
+ 
+
+  8.
+
+Agreement for AAA and TAA Endoprosthesis, dated as of January 1, 2019, by and
+between the Company and Tenet Business Services Corporation, as amended by that
+certain Amendment to Agreement dated December 2, 2019.
+
+ 
+
+  9.
+
+Customer Contracts with the customers listed on Exhibit A of this Company
+Disclosure Letter
+
+(iii)
+
+ 
+
+  1.
+
+Promissory Note, dated May 1, 2020, from Bank of America, N.A.
+
+(vii)
+
+ 
+
+  1.
+
+Lease for office space located at Europalaan 30, 5232 BC, ‘s-Hertogenbosch, The
+Netherlands, dated July 17, 2019, by and between Endologix International
+Holdings B.V. and EL30 B.V.
+
+ 
+
+  2.
+
+Lease Agreement for Santa Rosa facility for the building located at 3910
+Brickway Boulevard, Santa Rosa, California, dated June 16, 2005, by and between
+Trivascular, Inc. and Sonoma Airport Properties LLC, as amended.
+
+ 
+
+  3.
+
+Lease Agreement for office space located at Rahmannstraße 11, 65760 Eschborn,
+Germany, dated April 5, 2016 by and between Endologix Internation B.V. and
+IntReal International Real Estate Kapitalverwaltungsgesellschaft mbH.
+
+ 
+
+  4.
+
+Membership Agreement for the office space located at 6 Raffles Quay #16-01
+Singapore 048580 dated January 7, 2020, by and between Endologix Singapore
+Private Limited and JustCo (Raffles Quay) Pte. Ltd.
+
+ 
+
+  5.
+
+Standard Industrial/Commercial Multi-Tenant Lease - Net, for 2 Musick and 35
+Hammond, located in Irvine, California, dated June 12, 2013, by and between the
+Company and The Northwestern Mutual Life Insurance Company, as amended.
+
+ 
+
+  6.
+
+Standard Industrial/Commercial Multi-Tenant Lease - Net, for 33 Hammond, Suite
+203 located in Irvine, California, dated April 1, 2014, by and between the
+Company and The Northwestern Mutual Life Insurance Company.
+
+(viii)
+
+ 
+
+  1.
+
+Agreement and Plan of Merger and Reorganization, dated October 27, 2010, by and
+among Endologix, Inc., Nepal Acquisition Corporation, Nellix, Inc., certain of
+Nellix, Inc.’s stockholders listed therein and Essex Woodlands Health Ventures,
+Inc., as representative of Nellix, Inc.’s stockholders.
+
+(ix)
+
+ 
+
+  1.
+
+Marketing & Sales Preferred Distribution Agreement, dated September 1, 2019, by
+and between the Company and Merit Medical Systems, Inc.
+
+
+
+--------------------------------------------------------------------------------
+
+(xiii)
+
+ 
+
+  1.
+
+See agreements in Section 5.14(a)(ii) above.
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.16
+
+Employee Benefit Matters
+
+ 
+
+  •  
+
+2020 Short Term Incentive Plan
+
+ 
+
+  •  
+
+Amended and Restated 2015 Stock Incentive Plan, as amended
+
+ 
+
+  •  
+
+Amended and Restated 2006 Employee Stock Purchase Plan, as amended
+
+ 
+
+  •  
+
+2017 Inducement Stock Incentive Plan, as amended
+
+ 
+
+  •  
+
+See Employment Agreements included as exhibits to the Company’s Form 10-K for
+the fiscal year ended December 31, 2019
+
+ 
+
+  •  
+
+Medical Plans through Kaiser Foundation Health Plan and Aetna Health of
+California
+
+ 
+
+  •  
+
+Dental Plan through Metropolitan Life Insurance
+
+ 
+
+  •  
+
+Vision Plan through Metropolitan Life Insurance
+
+ 
+
+  •  
+
+Life Insurance Plan through Metropolitan Life Insurance
+
+ 
+
+  •  
+
+Short Term and Long Term Disability Plans through Metropolitan Life Insurance
+
+ 
+
+  •  
+
+Health Savings Account
+
+ 
+
+  •  
+
+Health Care Flexible Savings Account
+
+ 
+
+  •  
+
+Pet Plan through National Casualty Company
+
+ 
+
+  •  
+
+Online Healthcare Plan through Walkingspree USA Ltd.
+
+ 
+
+  •  
+
+Cancer Plan through Wamberg Genomic Advisors, Inc.
+
+ 
+
+  •  
+
+Coverage under COBRA
+
+ 
+
+  •  
+
+Sick Leave Policy
+
+ 
+
+  •  
+
+Vacation Policy
+
+ 
+
+  •  
+
+Holiday Policy
+
+ 
+
+  •  
+
+Endologix, Inc. 401(k) Plan through Great-West Trust Company, LLC
+
+ 
+
+  •  
+
+Endologix, Inc. Severance Program
+
+ 
+
+  •  
+
+Online Employee Rewards Program through Global Engagement Solutions, Inc.
+
+ 
+
+  •  
+
+Legal Services and Advice through LegalShield
+
+ 
+
+  •  
+
+Transportation Program with Metrolink
+
+ 
+
+  •  
+
+Benefit Plans listed below:
+
+
+
+--------------------------------------------------------------------------------
+
+Medical:
+
+2 Plans provided by Kaiser
+
+ 
+
+  •  
+
+HMO - Core Plan
+
+  •  
+
+HMO - Buy Up Plan
+
+4 Plans provided by Aetna
+
+ 
+
+  •  
+
+HMO - Limited Network
+
+  •  
+
+HMO - Full Network
+
+  •  
+
+PPO
+
+  •  
+
+HSA
+
+Dental: PPO Plan provided by MetLife
+
+Vision:
+
+2 Plans provided by MetLife
+
+ 
+
+  •  
+
+PPO
+
+  •  
+
+Buy up PPO
+
+Flexible Spending Account : Provided by FlexFacts
+
+Dependent Care Flexible Spending Account: Provided by FlexFacts
+
+Life and AD&D: Employer paid provided by MetLife (2x annual earnings up to
+$200,000)
+
+Voluntary Plans by MetLife:
+
+ 
+
+  •  
+
+Short Term Disability
+
+ 
+
+  •  
+
+Long Term Disability
+
+ 
+
+  •  
+
+Life and AD&D (additional policies and dependent policies)
+
+ 
+
+  •  
+
+Critical illness Insurance
+
+ 
+
+  •  
+
+Accident Insurance
+
+Additional Benefits:
+
+ 
+
+Benefits Support Line    Provided by Marsh & Mclennan 401k Program    Managed by
+Empower EE Stock Purchase Program    Managed by Endologix Employee Assistance
+Program    Provided by MetLife Benefits Support Line    Health Advocate
+
+
+
+--------------------------------------------------------------------------------
+
+Section 5.19
+
+FDA and Related Regulatory Matters
+
+(b)
+
+FDA Facility Registrations and Device Listings:
+
+Endologix International Holdings B.V. (Netherlands), Registration Number
+3013162347
+
+ 
+
+  •  
+
+Specification Developer for:
+
+ 
+
+  •  
+
+AFX Delivery System; Powerlink System (P040002)
+
+ 
+
+  •  
+
+AFX introducer System (K120212)
+
+ 
+
+  •  
+
+Dual Lumen Catheter (K991601)
+
+Endologix, Inc. (Santa Rosa, CA), Registration Number 3008011247
+
+ 
+
+  •  
+
+Manufacturer for Ovation Stent Graft System (P120006)
+
+ 
+
+  •  
+
+Manufacturer and Complaint File Establishment for Alto Abdominal Stent Graft
+System; Ovation Abdominal Stent Graft System; Ovation iX Abdominal Stent Graft
+System; Ovation iX Iliac Stent Graft; Ovation Prime Abdominal Stent Graft System
+(P120006)
+
+ENDOLOGIX, INC. (Irvine, CA), Registration Number 3011063223
+
+ 
+
+  •  
+
+Contract Manufacturer and Complaint File Establishment for:
+
+ 
+
+  •  
+
+AFX Delivery System; Powerlink System (P040002)
+
+ 
+
+  •  
+
+AFX Introducer System (K120212)
+
+ 
+
+  •  
+
+Dual Lumen Catheter (K991601)
+
+FDA Clearances:
+
+AFX Introducer System
+
+ 
+
+  •  
+
+K110090
+
+ 
+
+  •  
+
+K111747
+
+ 
+
+  •  
+
+K120212
+
+Dual Lumen Catheter
+
+ 
+
+  •  
+
+K991601
+
+FDA Approvals:
+
+Ovation Platform (including Alto Abdominal Stent Graft System )
+
+ 
+
+  •  
+
+P120006; Supplements S001 through S021, S023 through S026, S028 through S032,
+and S034 (withdrawn supplements not included); and annual reports filed with FDA
+pertaining to such approval
+
+ 
+
+  •  
+
+Ovation IDE G090239; sequentially, Supplements S001 through S045; and interim
+and final reports pertaining to such investigational uses
+
+ 
+
+  •  
+
+Alto IDE G160226; sequentially, Supplements S001 through S005; and interim and
+final reports pertaining to such investigational uses
+
+AFX Delivery System; Powerlink System:
+
+ 
+
+  •  
+
+P040002; sequentially, Supplements S001 through S063; and annual reports filed
+with FDA pertaining to such approval
+
+Nellix Endovascular Aneurysm Sealing System:
+
+
+
+--------------------------------------------------------------------------------
+
+  •  
+
+IDE G130005; Supplements S001 through S034 and S036 through S056 (withdrawn
+supplement not included); and interim and final reports pertaining to such
+investigational uses
+
+(d)
+
+The Company is subject to an action FDA Form 483 and its associated response
+process. In addition, the Company had a verbal Regulatory Meeting with FDA
+regarding the 483 and the Company’s responses. Thus far, the Company has
+received no indication that a warning letter is imminent, however, in dealing
+with regulators it is difficult to predict their every move and reaction and, as
+such, the Company cannot preclude that a warning letter may be issued until such
+time as the 483 and its responses are closed and recognized as such by FDA.
+
+(g)
+
+None.
+
+
+
+--------------------------------------------------------------------------------
+
+Section 7.1(b)(xix)
+
+Interim Operations
+
+None.
+
+
+
+--------------------------------------------------------------------------------
+
+Exhibit A
+
+[Attached]
+Exhibit 10.12
+
+
+SECOND AMENDMENT TO
+GOLF COURSE USE AGREEMENT
+
+
+THIS SECOND AMENDMENT TO GOLF COURSE USE AGREEMENT (this “Second Amendment”) is
+made this 20th day of July, 2020, by and among Rio Secco LLC, Cascata LLC,
+Chariot Run LLC and Grand Bear LLC, each a Delaware limited liability company
+(collectively, and together with their respective successors and assigns,
+“Owner”), and Caesars Enterprise Services, LLC and CEOC, LLC, each a Delaware
+limited liability company (collectively, and together with their respective
+successors and assigns, “User”), and, solely for purposes of reaffirming its
+obligations under Section 2.1(c) of the Use Agreement (as defined below),
+Caesars License Company, LLC, a Nevada limited liability company (“CLC”).
+WHEREAS, Owner and User (and CLC solely for purposes of Section 2.1(c) of the
+Use Agreement) entered into that certain Golf Course Use Agreement dated
+October 6, 2017, as amended by that certain First Amendment to Golf Course Use
+Agreement, dated April 20, 2018 (as amended, collectively, the “Use Agreement”)
+for certain rights and privileges with respect to access and use of the Golf
+Courses, as more particularly described in the Use Agreement; and
+WHEREAS, Owner, User and CLC desire to amend the Use Agreement as set forth
+herein.
+NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
+of which is hereby acknowledged, the parties hereto agree as follows:
+1.Amendments to Use Agreement. Effective as of the date hereof, the Use
+Agreement is hereby amended in its entirety to read as set forth in Exhibit A
+attached hereto.
+2.Other Documents. Any and all agreements entered into in connection with the
+Use Agreement which make reference therein to “the Use Agreement” (or any
+similar reference) shall be intended to, and are deemed hereby, to refer to the
+Use Agreement as amended by this Second Amendment.
+3.Miscellaneous.
+(a)    Except as hereby specifically amended, the Use Agreement is hereby
+confirmed and ratified in all respects and shall remain in full force and
+effect.
+(b)    This Second Amendment may be executed in multiple counterparts, each of
+which shall be deemed to be a valid and binding original and all of which taken
+together shall constitute but one and the same instrument, and any party hereto
+may execute this Second Amendment by signing such counterpart. This Second
+Amendment may be effectuated by the exchange of electronic copies of signatures
+(e.g.,.pdf), with electronic copies of this executed Second Amendment having the
+same force and effect as original counterpart signatures hereto for all
+purposes.
+(c)    Each person executing this Second Amendment by such person’s execution
+hereof, represents and warrants that such person is fully authorized to execute
+this Second
+
+
+1
+
+--------------------------------------------------------------------------------
+
+
+
+
+Amendment on behalf of the party such person is executing this Second Amendment
+on behalf of, and that no further action or consent on the part of the party for
+whom such person is acting is required to the effectiveness and enforceability
+of this Second Amendment against such party following the execution hereof.
+(d)    Each party hereto agrees that Section 27.2, Section 27.6, Section 27.9
+and Section 27.12 of the Use Agreement shall apply to this Second Amendment
+mutatis mutandis.
+(e)    Neither this Second Amendment nor any provision hereof may be changed,
+modified, waived, discharged or terminated orally, but only by an instrument in
+writing signed by the party against whom enforcement of such change,
+modification, waiver, discharge or termination is sought.
+(f)    This Second Amendment shall be binding upon and inure to the benefit of
+the parties and their respective heirs, legal representatives, successors and
+permitted assigns.
+- Signature page attached -
+
+
+2
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of
+the date hereof.
+OWNER:
+RIO SECCO LLC,
+a Delaware limited liability company
+
+
+By: /s/ David Kieske      
+Name: David Kiese
+Title: Treasurer
+
+
+
+
+
+CASCATA LLC,
+a Delaware limited lability company
+By: /s/ David Kieske      
+Name: David Kiese
+Title: Treasurer
+
+
+
+
+
+CHARIOT RUN LLC,
+a Delaware limited liability company
+By: /s/ David Kieske      
+Name: David Kiese
+Title: Treasurer
+
+
+
+
+
+GRAND BEAR LLC,
+a Delaware limited liability company
+By: /s/ David Kieske      
+Name: David Kiese
+Title: Treasurer
+
+
+
+[Signature Page to Second Amendment to Golf Course Use Agreement]
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+USER:
+CEOC, LLC,
+a Delaware limited liability company
+ 
+By: /s/ Edmund L. Quatmann, Jr.
+ 
+Name: Edmund L. Quatmann, Jr.
+ 
+Title: Secretary
+ 
+
+
+
+
+
+CAESARS ENTERPRISE SERVICES, LLC, a Delaware limited liability company
+
+
+By: /s/ Edmund L. Quatmann, Jr.
+Name: Edmund L. Quatmann, Jr.
+ 
+Title: Secretary
+ 
+
+
+
+[Signature Page to Second Amendment to Golf Course Use Agreement]
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+CLC:
+
+
+CAESARS LICENSE COMPANY, LLC,
+a Nevada limited liability company
+ 
+
+
+By: /s/ Edmund L. Quatmann, Jr.
+ 
+Name: Edmund L. Quatmann, Jr.
+ 
+Title: Secretary
+ 
+
+
+
+[Signature Page to Second Amendment to Golf Course Use Agreement]
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+EXHIBIT A
+COMPOSITE GOLF COURSE USE AGREEMENT
+Conformed through Second Amendment
+[To be attached]
+
+
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+
+
+
+
+
+
+GOLF COURSE USE AGREEMENT
+By and Among
+Rio Secco LLC, Cascata LLC, Chariot Run LLC and Grand Bear LLC
+(collectively, and together with their respective successors and assigns),
+as “Owner”
+and
+Caesars Enterprise Services, LLC and CEOC, LLC
+(collectively, or if the context clearly requires, individually, and together
+with their respective successors and assigns),
+as “User”
+and,
+solely for purposes of Section 2.1(c) hereof, Caesars License Company, LLC
+dated
+October 6, 2017
+
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+TABLE OF CONTENTS
+ 
+ 
+Page
+Article I DEFINITIONS
+1
+Article II GRANT OF LICENSE; TERM
+17
+2.1
+Golf Courses; Rights and Privileges; Minimum Rounds; Trademark License
+17
+2.2
+Term
+18
+2.3
+Renewal Terms
+19
+Article III GOLF COURSE USE PAYMENTS
+19
+3.1
+Payment of Membership Fee and CES Use Fee
+19
+3.2
+Late Payment
+20
+3.3
+Method of Payment
+21
+3.4
+Monthly Invoice
+21
+3.5
+Payment of Complimentary Golf Rounds Fee
+21
+Article IV ADDITIONAL CHARGES
+23
+Article V NO TERMINATION, ABATEMENT, ETC.
+23
+Article VI OWNERSHIP OF GOLF COURSES
+24
+Article VII PRESENT CONDITION & USE
+24
+7.1
+Condition of the Golf Courses
+24
+7.2
+Use of the Golf Courses
+24
+7.3
+Ground Leases
+25
+Article VIII REPRESENTATIONS AND WARRANTIES
+26
+Article IX MAINTENANCE, REPAIR AND OPERATIONS
+26
+Article X INSURANCE
+27
+Article XI CASUALTY
+27
+11.1
+Property Insurance Proceeds
+27
+11.2
+Owner’s Obligations Following Casualty
+28
+11.3
+No Abatement of Golf Course Use Payments
+29
+11.4
+Waiver
+29
+Article XII EMINENT DOMAIN
+29
+12.1
+Condemnation
+29
+12.2
+Award Distribution
+30
+12.3
+Temporary Taking
+30
+12.4
+No Abatement of Membership Fee
+30
+Article XIII DEFAULTS & REMEDIES
+30
+13.1
+User Events of Default
+30
+13.2
+Owner Remedies
+31
+13.3
+Owner Events of Default; User Remedies
+32
+13.4
+Damages
+32
+13.5
+Application of Funds
+33
+
+
+
+i
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS (CONT'D)
+
+
+13.6
+Owner’s Right to Cure User’s Default
+33
+13.7
+Reduction of Minimum Rounds Per Month and Minimum Rounds Per Year
+33
+13.8
+Miscellaneous.
+33
+Article XIV LICENSING EVENTS
+34
+14.1
+Owner Licensing Event
+34
+14.2
+User Licensing Event
+35
+Article XV INDEMNIFICATION
+35
+Article XVI TRANSFERS BY OWNER
+36
+16.1
+Transfers Generally
+36
+16.2
+Severance Agreements
+37
+16.3
+No Release of Owner’s Obligations; Exception
+38
+Article XVII TRANSFERS BY USER
+39
+17.1
+Assignment
+39
+17.2
+Permitted Assignments and Transfers
+39
+17.3
+Costs
+39
+17.4
+No Release of User’s Obligations; Exception
+39
+17.5
+Merger of CEOC
+40
+17.6
+Merger of CEC
+40
+Article XVIII ESTOPPEL CERTIFICATES
+40
+Article XIX NO WAIVER
+40
+Article XX REMEDIES CUMULATIVE
+41
+Article XXI ACCEPTANCE OF SURRENDER
+41
+Article XXII OWNER FINANCING
+41
+Article XXIII INTENTIONALLY OMITTED
+42
+Article XXIV NOTICES
+42
+Article XXV ATTORNEYS’ FEES
+42
+Article XXVI ANTI-TERRORISM REPRESENTATIONS
+43
+Article XXVII MISCELLANEOUS
+43
+27.1
+Survival
+43
+27.2
+Severability
+43
+27.3
+Non-Recourse
+43
+27.4
+Successors and Assigns
+44
+27.5
+Arbitration
+44
+27.6
+Governing Law
+45
+27.7
+Waiver of Trial by Jury
+45
+27.8
+Entire Agreement
+46
+27.9
+Headings
+46
+27.1
+Counterparts
+46
+27.11
+Interpretation
+46
+27.12
+Further Assurances
+46
+
+
+
+ii
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS (CONT'D)
+
+
+27.13
+Confidential Information.
+46
+27.14
+Time of Essence
+47
+27.15
+Consents, Approval and Notices
+47
+27.16
+Apportionment of Revenue and Expenses
+48
+27.17
+Single, Indivisible Agreement
+48
+27.18
+Termination of this Agreement
+49
+
+
+
+
+
+iii
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+EXHIBITS AND SCHEDULES
+EXHIBIT A-1
+—
+GOLF COURSES
+EXHIBIT A-2
+—
+GROUND LEASED GOLF COURSES; EXISTING GROUND LEASES
+EXHIBIT B
+—
+USER RIGHTS AND PRIVILEGES
+EXHIBIT C
+—
+OWNER RIGHTS AND PRIVILEGES
+EXHIBIT D
+—
+CES USE FEE
+EXHIBIT E-1
+—
+MINIMUM ROUNDS
+EXHIBIT E-2
+—
+AGGREGATE MINIMUM ROUNDS
+EXHIBIT F
+—
+APPROVED CAPITAL IMPROVEMENTS
+EXHIBIT G
+—
+LICENSED TRADEMARKS
+EXHIBIT H
+—
+TERMS AND CONDITIONS FOR USE OF THE LICENSED TRADEMARKS
+EXHIBIT I
+—
+REQUIRED INSURANCE
+
+
+
+iv
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+GOLF COURSE USE AGREEMENT
+THIS GOLF COURSE USE AGREEMENT (this “Agreement”) is entered into as of October
+6, 2017, by and among Rio Secco LLC, Cascata LLC, Chariot Run LLC and Grand Bear
+LLC, each a Delaware limited liability company (collectively, and together with
+their respective successors and assigns, “Owner”), and Caesars Enterprise
+Services, LLC and CEOC, LLC, each a Delaware limited liability company
+(collectively, or if the context clearly requires, individually, and together
+with their respective successors and assigns, “User”), and, solely for purposes
+of Section 2.1(c) hereof, Caesars License Company, LLC, a Nevada limited
+liability company (“CLC”).
+RECITALS
+A.Commencing on January 15, 2015 and continuing thereafter, Caesars
+Entertainment Operating Company, Inc., a Delaware corporation, and certain of
+its direct and indirect subsidiaries (collectively, the “Debtors”) filed
+voluntary petitions for relief under Chapter 11 of Title 11 of the United States
+Code in the United States Bankruptcy Court for the Northern District of Illinois
+(the “Bankruptcy Court”), jointly administered under Case No. 15-01145, and the
+Bankruptcy Court has confirmed the “Debtors’ Third Amended Joint Plan of
+Reorganization Pursuant to Chapter 11 of the Bankruptcy Code” (as it may be
+altered, amended, modified, or supplemented from time to time in accordance with
+the terms of Article X thereof, the “Bankruptcy Plan”).
+B.Pursuant to the Bankruptcy Plan, on the Commencement Date certain of the
+Debtors transferred the Golf Courses to Owner, and Owner hereby grants to User
+certain priority rights and privileges with respect to access and use of the
+Golf Courses and User hereby secures from Owner such priority rights and
+privileges with respect to access and use of the Golf Courses, and Owner and
+User hereby make certain other agreements relating to User’s access and use of
+the Golf Courses, in each case upon the terms set forth in this Agreement.
+C.Immediately following the execution of this Agreement on the Commencement
+Date, Caesars Entertainment Operating Company, Inc., a Delaware corporation,
+merged into CEOC, LLC, a Delaware limited liability company.
+D.Capitalized terms used in this Agreement and not otherwise defined herein are
+defined in Article I hereof.
+NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
+of which are hereby acknowledged, the Parties agree as follows:
+ARTICLE I
+DEFINITIONS
+For all purposes of this Agreement, except as otherwise expressly provided or
+unless the context otherwise requires, (i) the terms defined in this Article I
+have the meanings assigned to them in this Article and include the plural as
+well as the singular and any gender as the context requires; (ii) all accounting
+terms not otherwise defined herein have the meanings assigned to them in
+accordance with GAAP; (iii) all references in this Agreement to designated
+“Articles,” “Sections,” “Exhibits” and other subdivisions are to the designated
+Articles, Sections, Exhibits and other subdivisions of this Agreement; (iv) the
+word “including” shall have the same meaning as the phrase “including,
+
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+
+without limitation,” and other similar phrases; (v) the words “herein,” “hereof”
+and “hereunder” and other words of similar import refer to this Agreement as a
+whole and not to any particular Article, Section or other subdivision; (vi) all
+Exhibits, Schedules and other attachments annexed to the body of this Agreement
+are hereby deemed to be incorporated into and made an integral part of this
+Agreement; (vii) all references to a range of Sections, paragraphs or other
+similar references, or to a range of dates or other range (e.g., indicated by
+“-” or “through”) shall be deemed inclusive of the entire range so referenced;
+and (viii) the fact that CEOC is sometimes named herein as “CEOC” is not
+intended to vitiate or supersede the fact that CEOC is included as one of the
+entities constituting User.
+“Additional Charges”: All amounts, liabilities and obligations (excluding the
+Golf Course Use Payments) which User assumes or agrees or is obligated to pay
+under this Agreement and, in the event of any failure on the part of User to pay
+any of those items, every fine, penalty, interest and cost which may be added
+for non-payment or late payment of such items pursuant to the terms hereof or
+under applicable law.
+“Adjusted Membership Fee”: An amount equal to the product of (a) the
+then-applicable Membership Fee (i.e., the Membership Fee immediately prior to
+the applicable adjustment), multiplied by (b) the quotient of (x) the new
+monthly Rent amount payable under the Regional Lease (i.e., the monthly Rent
+amount payable under the Regional Lease immediately after the applicable
+adjustment), divided by (y) the then-applicable monthly Rent amount payable
+under the Regional Lease (i.e., the monthly Rent amount payable under the
+Regional Lease immediately prior to the applicable adjustment).
+“Affiliate”: When used with respect to a specified Person, another Person that
+directly, or indirectly through one or more intermediaries, Controls or is
+Controlled by or is under common Control with the Person specified. In no event
+shall User or any of its Affiliates be deemed to be an Affiliate of Owner or any
+of Owner’s Affiliates as a result of this Agreement and/or as a result of any
+consolidation by User or Owner of the other such party or the other such party’s
+Affiliates with User or Owner (as applicable) for accounting purposes.
+“Aggregate Minimum Rounds Per Year”: The aggregate of the Minimum Rounds Per
+Year for all of the Golf Courses during each calendar year as more particularly
+set forth on Exhibit E-2 attached hereto.
+“Aggregate Minimum Rounds Per Month”: The aggregate of the Minimum Rounds Per
+Month for all of the Golf Courses during each calendar month as more
+particularly set forth on Exhibit E-2 attached hereto.
+“Agreement”: As defined in the preamble.
+“Annual Minimum Rounds Fee”: With respect to each Golf Course, an annual amount
+equal to the product of (1) the applicable Minimum Rounds Rate for such Golf
+Course multiplied by (2) the applicable number of Minimum Rounds Per Year for
+such Golf Course.
+
+
+2
+
+--------------------------------------------------------------------------------
+
+
+
+
+“Annual Other Sponsored Rounds Fee”: With respect to each Golf Course, an annual
+amount equal to the aggregate of the Other Sponsored Rounds Charges for all of
+the Other Sponsored Rounds For The Year at such Golf Course.
+“Approved Capital Improvements”: As defined in Article IX.
+“Award”: All compensation, sums or anything of value awarded, paid or received
+from the applicable authority on a total or partial Taking or Condemnation,
+including any and all interest thereon.
+“Beginning CPI”: As defined in the definition of CPI Increase.
+“Business Day”: Each Monday, Tuesday, Wednesday, Thursday and Friday that (i) is
+not a day on which national banks in the City of Las Vegas, Nevada or in New
+York, New York are authorized, or obligated, by law or executive order, to
+close, and (ii) is not any other day that is not a “Business Day” as defined
+under any of the Leases.
+“Cash”: Cash and cash equivalents and all instruments evidencing the same or any
+right thereto and all proceeds thereof.
+“Casualty Event”: Any loss, damage or destruction with respect to the Golf
+Courses or any portion thereof.
+“CEC”: Caesars Entertainment Corporation, a Delaware corporation. On the Fifth
+Amendment Date, CEC was renamed Caesars Holdings, Inc.
+“CEOC”: CEOC, LLC, a Delaware limited liability company, as successor by merger
+to Caesars Entertainment Operating Company, Inc., a Delaware corporation.
+“CES”: Caesars Enterprise Services, LLC, a Delaware limited liability company.
+“CES Use Fee”: An annual amount payable as provided in Article III, calculated
+as follows: For the first (1st) Usage Year of the Term, the CES Use Fee shall be
+equal to Three Million and No/100 Dollars ($3,000,000.00), which amount is
+allocable among the Golf Courses during the first (1st) Usage Year of the Term
+as set forth on Exhibit D. The CES Use Fee shall thereafter be adjusted annually
+as set forth in the following sentence. On each CES Use Fee Escalator Adjustment
+Date during the second (2nd) Usage Year of the Term through and including the
+final Usage Year of the Term, the CES Use Fee payable for such Usage Year shall
+be adjusted to be equal to the CES Use Fee payable for the immediately preceding
+Usage Year, multiplied by the Escalator, and shall be allocated among the Golf
+Courses in the same proportions as the amounts set forth on Exhibit D.
+“CES Use Fee Escalator Adjustment Date”: The first (1st) day of each Usage Year,
+excluding the first (1st) Usage Year of the Initial Term.
+“CES Use Fee Reduction Amount”: A proportionate reduction of the CES Use Fee,
+which proportionate amount shall be determined in accordance with the following
+sentence. In the
+
+
+3
+
+--------------------------------------------------------------------------------
+
+
+
+
+event that this Agreement terminates with respect to any Golf Course(s) pursuant
+to Section 11.2(a), Section 11.2(b), Section 12.1(a), Section 12.1(b), Section
+12.3 or Article XVI, the above-described proportionate amount shall be equal to
+the product of (a) the then-applicable CES Use Fee (i.e., the CES Use Fee
+immediately prior to the applicable adjustment) multiplied by (b) a fraction,
+(x) the numerator of which shall be the amount(s) related to the applicable Golf
+Course(s) for which this Agreement terminates as set forth in the “Total” column
+on Exhibit D, and (y) the denominator of which shall be Three Million and No/100
+Dollars ($3,000,000.00).
+“Change of Control”: With respect to any party, the occurrence of any of the
+following: (a) the direct or indirect sale, exchange or other transfer (other
+than by way of merger, consolidation or amalgamation), in one or a series of
+related transactions, of all or substantially all the assets of such party and
+its Subsidiaries, taken as a whole, to one or more Persons; (b) an officer of
+such party becomes aware (by way of a report or any other filing pursuant to
+Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of
+the consummation of any transaction or series of related transactions
+(including, without limitation, any merger, consolidation or amalgamation), the
+result of which is that any “person” or “group” (as used in Section 13(d)(3) of
+the Exchange Act or any successor provision) becomes the beneficial owner (as
+defined in Rules 13d-3 and 13d-5 under the Exchange Act or any successor
+provision), directly or indirectly, of more than fifty percent (50%) of the
+Voting Stock of such party or other Voting Stock into which such party’s Voting
+Stock is reclassified, consolidated, exchanged or changed, measured by voting
+power rather than number of securities or other ownership interests; (c) the
+occurrence of a “change of control”, “change in control” (or similar definition)
+as defined in any indenture, credit agreement or similar debt instrument under
+which such party is an issuer, a borrower or other obligor, in each case
+representing outstanding indebtedness in excess of One Hundred Million and
+No/100 Dollars ($100,000,000.00); or (d) such party consolidates with, or merges
+or amalgamates with or into, any other Person (or any other Person consolidates
+with, or merges or amalgamates with or into, such party), in any such event
+pursuant to a transaction in which any of such party’s outstanding Voting Stock
+or any of the Voting Stock of such other Person is converted into or exchanged
+for Cash, securities or other property, other than any such transaction where
+such party’s Voting Stock outstanding immediately prior to such transaction
+constitutes, or is converted into or exchanged for, a majority of the
+outstanding Voting Stock of the surviving Person or any direct or indirect
+Parent Entity of the surviving Person immediately after giving effect to such
+transaction measured by voting power rather than number of securities or other
+ownership interests. For purposes of the foregoing definition: (x) a party shall
+include any Parent Entity of such party; and (y) “Voting Stock” shall mean the
+securities or other ownership interests of any class or classes having general
+voting power under ordinary circumstances, in the absence of contingencies, to
+elect the directors, managers or trustees (or other similar governing body) of a
+Person. Notwithstanding the foregoing: (A) the transfer of assets between or
+among a party’s wholly owned subsidiaries and such party shall not itself
+constitute a Change of Control; (B) the term “Change of Control” shall not
+include a merger, consolidation or amalgamation of such party with, or the sale,
+assignment, conveyance, transfer or other disposition of all or substantially
+all of such party’s assets to, an Affiliate of such party (1) incorporated or
+organized solely for the purpose of reincorporating such party in another
+jurisdiction, and (2) the owners of which and the number and type of securities
+or other ownership interests in such party, measured by voting power and number
+of securities or other ownership interests, owned by each of them immediately
+before and immediately following such transaction, are materially
+
+
+4
+
+--------------------------------------------------------------------------------
+
+
+
+
+unchanged; (C) a “person” or “group” shall not be deemed to have beneficial
+ownership of securities subject to a stock or asset purchase agreement, merger
+agreement or similar agreement (or voting or option or similar agreement related
+thereto) prior to the consummation of the transactions contemplated by such
+agreement; (D) [intentionally omitted]; (E) a transaction will not be deemed to
+involve a Change of Control in respect of a party if (1) such party becomes a
+direct or indirect wholly owned subsidiary of a holding company, and (2) the
+direct or indirect owners of such holding company immediately following that
+transaction are the same as the owners of such party immediately prior to that
+transaction and the number and type of securities or other ownership interests
+owned by each such direct and indirect holder immediately following such
+transaction are materially unchanged from the number and type of securities or
+other ownership interests owned by such direct and indirect holder in such party
+immediately prior to that transaction; and (F) a transaction will not be deemed
+to involve a Change of Control in respect of a party (the “Subject Entity”) if
+(1) the Subject Entity becomes a direct or indirect wholly owned subsidiary of
+an entity (an “Intervening Entity”) (which Intervening Entity may own other
+assets in addition to its equity interests in the Subject Entity), and (2) all
+of the direct and indirect owners of the Subject Entity immediately following
+that transaction (the “Subject Transaction”) are the same as all of the direct
+and indirect owners of the Subject Entity immediately prior to the Subject
+Transaction and the number and type of securities or other ownership interests
+owned by each such direct and indirect owner of the Subject Entity immediately
+following such transaction are materially unchanged from the number and type of
+securities or other direct and indirect ownership interests in the Subject
+Entity owned by such direct and indirect owners of the Subject Entity
+immediately prior to that transaction (except, in the case of each direct and
+indirect owner of the Intervening Entity immediately following such transaction,
+by virtue of being held through the Intervening Entity; it being understood
+that, immediately following the Subject Transaction, each direct and indirect
+owner of the Intervening Entity shall indirectly own the same proportion and
+percentage of the ownership interests in the Subject Entity as such direct or
+indirect owner owned immediately prior to the Subject Transaction).
+Notwithstanding anything to the contrary contained herein, in no event shall ERI
+be a Subject Entity under clause (F) hereof.
+“Commencement Date”: As defined in Section 2.2.
+“Complimentary Golf Rounds”: Rounds of golf at the Golf Courses that are (i)
+sponsored by User (i.e., paid for by User hereunder through the Complimentary
+Golf Rounds Fee) and (ii) awarded by User (or User’s Affiliates) to User’s (or
+User’s Affiliates’) guests on a complimentary basis in order to encourage such
+guests to participate in Gaming Activities at User’s (or User’s Affiliates’)
+casinos or for any other reason as determined by User (or User’s Affiliates).
+“Complimentary Golf Rounds Fee”: An annual amount payable as provided in Article
+III, equal to the sum of (1) the aggregate of the Annual Minimum Rounds Fees for
+all of the Golf Courses plus (2) the aggregate of the Annual Other Sponsored
+Rounds Fees for all of the Golf Courses.
+“Complimentary Golf Rounds Reimbursement Amount”: As defined in Section 3.5.
+“Condemnation”: The exercise of any governmental power, whether by legal
+proceedings or otherwise, by any public or quasi-public authority, or private
+corporation or
+
+
+5
+
+--------------------------------------------------------------------------------
+
+
+
+
+individual, having such power under Legal Requirements, either under threat of
+condemnation or while legal proceedings for condemnation are pending.
+“Control”: 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 ownership of voting securities, partnership interests or any other Equity
+Interests or by contract, and “Controlling” and “Controlled” shall have meanings
+correlative thereto.
+“CPI”: The United States Department of Labor, Bureau of Labor Statistics Revised
+Consumer Price Index for All Urban Consumers (1982-84=100), U.S. City Average,
+All Items, or, if that index is not available at the time in question, then the
+index designated by such Department as the successor to such index, and if there
+is no index so designated, an index for an area in the United States that most
+closely corresponds to the entire United States, published by such Department,
+or if none, by any other instrumentality of the United States, all as reasonably
+determined by Owner and User.
+“CPI Increase”: The greater of (a) zero and (b) a fraction, expressed as a
+decimal, determined as of each Escalator Adjustment Date, (x) the numerator of
+which shall be the difference of (i) the average CPI for the three (3) most
+recent calendar months (the “Prior Months”) ending prior to such Escalator
+Adjustment Date (for which the CPI has been published as of such Escalator
+Adjustment Date) minus (ii) the average CPI for the three (3) corresponding
+calendar months occurring one (1) year prior to the Prior Months (such average
+CPI, the “Beginning CPI”), and (y) the denominator of which shall be the
+Beginning CPI.
+“CPLV Landlord”: The “CPLV Landlord” as defined in the Las Vegas Lease.
+“CPLV Tenant”: The “CPLV Tenant” as defined in the Las Vegas Lease.
+“Cut-off Time”: As defined in Section 27.16.
+“Dollars” and “$”: The lawful money of the United States.
+“Environmental Laws”: Any and all federal, state, municipal and local laws,
+statutes, ordinances, rules, regulations, orders, decrees or judgments, whether
+statutory or common law, as amended from time to time, now or hereafter in
+effect, or promulgated, pertaining to the environment, public health and safety
+and industrial hygiene and relating to the use, generation, manufacture,
+production, storage, release, discharge, disposal, handling, treatment, removal,
+decontamination, cleanup, transportation or regulation of any Hazardous
+Substance, including the Industrial Site Recovery Act, the Clean Air Act, the
+Clean Water Act, the Toxic Substances Control Act, the Comprehensive
+Environmental Response Compensation and Liability Act, the Resource Conservation
+and Recovery Act, the Federal Insecticide, Fungicide, Rodenticide Act, the Safe
+Drinking Water Act and relevant provisions of the Occupational Safety and Health
+Act.
+“Equity Interests”: With respect to any Person, any and all shares, interests,
+participations, equity interests, voting interests or other equivalents,
+including membership interests (however designated, whether voting or
+non-voting), of equity of such Person, including, if such
+
+
+6
+
+--------------------------------------------------------------------------------
+
+
+
+
+Person is a partnership, partnership interests (whether general or limited) and
+any other interest or participation that confers on a Person the right to
+receive a share of the profit, and losses of, or distributions of assets of,
+such partnership.
+“ERI”: Eldorado Resorts, Inc., a Nevada corporation. On the Fifth Amendment
+Date, ERI was renamed Caesars Entertainment, Inc. and converted to a Delaware
+corporation.
+“Escalator”: The sum of (a) one (1) plus (b) the greater of (i) two
+one-hundredths (0.02) and (ii) the CPI Increase.
+“Escalator Adjustment Date”: CES Use Fee Escalator Adjustment Date or Minimum
+Rounds Rate Escalator Adjustment Date, as applicable.
+“Estoppel Certificate”: As defined in Article XVIII.
+“Exchange Act”: The Securities Exchange Act of 1934, as amended, and the rules
+and regulations of the SEC promulgated thereunder.
+“Existing Fee Mortgage”: As defined in the Regional Lease.
+“Expert”: An independent third party professional, with expertise in respect of
+a matter at issue, appointed by the agreement of Owner and User or otherwise in
+accordance with Section 27.5 hereof.
+“Expiration Date”: The Stated Expiration Date, or such earlier date as this
+Agreement is terminated pursuant to its terms.
+“Fee Mortgage”: Any mortgage, pledge agreement, security agreement, assignment
+of leases and rents, fixture filing or similar document creating or evidencing a
+lien on Owner’s interest (which interest may be fee or leasehold) in the Golf
+Courses or any portion thereof (or an indirect interest therein, including
+without limitation, a lien on direct or indirect interests in Owner) in
+accordance with the provisions of Article XXII hereof.
+“Fee Mortgagee”: The holder(s) or lender(s) under any Fee Mortgage or the agent
+or trustee acting on behalf of any such holder(s) or lender(s).
+“Fifth Amendment Date”: July 20, 2020.
+“Fiscal Quarter”: Each calendar quarter ending on March 31, June 30, September
+30 and December 31 of each year.
+“Fiscal Year”: The annual period commencing January 1 and terminating December
+31 of each year.
+“Fourth Amendment Date”: December 26, 2018.
+
+
+7
+
+--------------------------------------------------------------------------------
+
+
+
+
+“GAAP”: Generally accepted accounting principles in the United States
+consistently applied in the preparation of financial statements, as in effect
+from time to time.
+“Gaming Activities”: The conduct of gaming or gambling activities, race books
+and sports pools, or the use, manufacture, distribution or branding of gaming
+devices, equipment and supplies in the operation of a casino, simulcasting
+facility, card club or other enterprise, including, without limitation, slot
+machines, video lottery terminals, gaming tables, cards, dice, gaming chips,
+player tracking systems, cashless wagering systems, mobile gaming systems, poker
+tournaments, inter-casino linked systems and related and associated equipment,
+supplies and systems, and the distribution, sale or service of liquor. For
+avoidance of doubt, the terms “gaming” and “gambling” as used in this Agreement
+are intended to include the meanings of such terms under NRS 463.0153, as
+amended from time to time, and the term “gaming device” as used in this
+Agreement is intended to include the meaning of such term under NRS 463.0155, as
+amended from time to time.
+ 
+“Gaming Authority” or “Gaming Authorities”: Individually or in the aggregate, as
+the context may require, any foreign, federal, state or local governmental
+entity or authority, or any department, commission, board, bureau, agency, court
+or instrumentality thereof, regulating Gaming Activities or related activities
+(including, but not limited to, the Nevada Gaming Commission, the Nevada State
+Gaming Control Board and the Clark County Liquor and Gaming Licensing Board).
+
+
+“Gaming Law”: Any applicable law regulating or otherwise pertaining to Gaming
+Activities or related activities, including, but not limited to, the provisions
+of the Nevada Gaming Control Act, as codified in NRS Chapter 463, as amended
+from time to time, all regulations of the Nevada Gaming Commission promulgated
+thereunder, as amended from time to time, the provisions of the Clark County
+Code, as amended from time to time, and all other rules, regulations, orders,
+ordinances and legal requirements of any Gaming Authority.
+
+
+“Gaming License”: “Gaming License” as defined in the Regional Lease.
+“Golf Course” or “Golf Courses”: As defined in Section 2.1(a).
+“Golf Course Use Payments”: Collectively, the Membership Fee, the CES Use Fee
+and the Complimentary Golf Rounds Fee.
+“Golf TRS”: VICI Golf LLC, a Delaware limited liability company, the parent of
+Owner.
+“Ground Leased Golf Courses”: Collectively, the Golf Courses leased pursuant to
+the Ground Leases. The Ground Leased Golf Courses in respect of the Ground
+Leases in effect as of the Commencement Date are described in Exhibit A-2
+attached hereto. Each of the Ground Leased Golf Courses is referred to
+individually herein as a “Ground Leased Golf Course.”
+“Ground Leases”: Collectively, those certain leases with respect to certain of
+the Golf Courses, pursuant to which Owner is a tenant and which leases are in
+effect as of the Commencement Date and listed on Exhibit A-2 hereto or, subject
+to Section 7.3, subsequently added
+
+
+8
+
+--------------------------------------------------------------------------------
+
+
+
+
+to the Golf Courses in accordance with the provisions of this Agreement. Each of
+the Ground Leases is referred to individually herein as a “Ground Lease.”
+“Ground Lessor”: As defined in Section 7.3.
+“Guarantor”: ERI, together with its successors and permitted assigns, in its
+capacity as guarantor under the Guaranty.
+“Guaranty”: That certain Guaranty of Lease, dated as of the Fifth Amendment
+Date, made by Guarantor and Landlord (as defined in the Regional Lease).
+“Hazardous Substances”: Collectively, any petroleum, petroleum product or by
+product or any substance, material or waste regulated pursuant to any
+Environmental Law.
+“Initial Stated Expiration Date”: As defined in Section 2.2.
+“Initial Term”: As defined in Section 2.2.
+“Joliet Landlord”: The “Landlord” as defined in the Joliet Lease.
+“Joliet Lease”: That certain Lease (Joliet), dated as of the Commencement Date,
+by and between Harrah’s Joliet Landco LLC, a Delaware limited liability company,
+as “Landlord”, and Des Plaines Development Limited Partnership, a Delaware
+limited partnership, as “Tenant”, as (i) amended by that certain First Amendment
+to Lease (Joliet), dated as of the Fourth Amendment Date, (ii) further amended
+by that certain Omnibus Amendment, (iii) further amended by that certain Second
+Amendment to Lease (Joliet), dated as of the Fifth Amendment Date, and (iv) may
+be further amended, restated or otherwise modified from time to time.
+“Joliet Tenant”: The “Tenant” as defined in the Joliet Lease.
+“Landlord REIT”: VICI Properties Inc., a Maryland corporation, the indirect
+parent of Owner.
+“Las Vegas Lease”: That certain Lease (CPLV), dated as of the Commencement Date,
+by and among CPLV Property Owner LLC, a Delaware limited liability company, as
+“Landlord”, and Desert Palace LLC, a Nevada limited liability company, Caesars
+Entertainment Operating Company, Inc., a Delaware corporation, and CEOC (as
+successor by merger to Caesars Entertainment Operating Company, Inc.),
+collectively as “Tenant”, as (i) amended by that certain First Amendment to
+Lease (CPLV), dated as of the Fourth Amendment Date, (ii) further amended by
+that certain Omnibus Amendment, (iii) further amended by that certain Second
+Amendment to Lease (CPLV), dated as of the Fifth Amendment Date and (iv) may be
+further amended, restated or otherwise modified from time to time.
+“Leases”: Collectively or individually, as the context may require, the Regional
+Lease, the Las Vegas Lease and the Joliet Lease.
+
+
+9
+
+--------------------------------------------------------------------------------
+
+
+
+
+“Leased Property”: The “Leased Property” as defined in each of the Leases,
+collectively or individually, as the context may require.
+“Legal Requirements”: All applicable federal, state, county, municipal and other
+governmental statutes, laws (including securities laws), rules, policies,
+guidance, codes, orders, regulations, ordinances, permits, licenses, covenants,
+conditions, restrictions, judgments, decrees and injunctions, whether now or
+hereafter enacted and in force, as applicable to any Person or to any Golf
+Course, including those (a) that affect either the Golf Courses or any portion
+thereof, or otherwise in any way affecting the business operated or conducted
+thereat, as the context requires, and (b) which may regulate the transport,
+handling, use, storage or disposal or require the cleanup or other treatment of
+any Hazardous Substance.
+“License Term”: As defined in Section 2.1(c).
+“Licensed Trademarks”: All rights in, to and under the trademarks, service marks
+and domain names set forth on Exhibit G hereto, including the registrations
+shown on Exhibit G therefor, and the reputation symbolized by the foregoing.
+“Membership Fee”: An annual amount payable as provided in Article III, in an
+initial amount equal to Ten Million and No/100 Dollars ($10,000,000.00) per
+Usage Year. The Membership Fee shall be increased or decreased, as applicable,
+to be equal to the Adjusted Membership Fee, from time to time, any time the
+monthly amount of Rent required to be paid under the Regional Lease is adjusted
+in accordance with the terms of the Regional Lease, in which event such Adjusted
+Membership Fee shall be deemed to be the Membership Fee for purposes hereof.
+“Membership Fee Reduction Amount”: With respect to any Severance Agreement, a
+proportionate reduction of the Membership Fee, which proportionate amount shall
+be equal to the product of (a) the then-applicable Membership Fee (i.e., the
+Membership Fee immediately prior to the applicable adjustment) multiplied by (b)
+a fraction, (x) the numerator of which shall be the amount(s) related to the
+applicable Golf Course(s) that is the subject of such Severance Agreement set
+forth in the “Total” column on Exhibit D, and (y) the denominator of which shall
+be Three Million and No/100 Dollars ($3,000,000.00).
+“Membership Fee Retainage Election”: As defined in Section 16.2.
+“Minimum Rounds Per Month”: As defined in Section 2.1.
+“Minimum Rounds Per Year”: As defined in Section 2.1.
+“Minimum Rounds Rate”: For each Golf Course, the rate to be used in calculating
+the applicable Monthly Minimum Rounds Fee or the applicable Annual Minimum
+Rounds Fee (as the case may be) for such Golf Course, determined as follows: For
+the period commencing on the Commencement Date and ending on December 31, 2018,
+the Minimum Rounds Rate for each Golf Course shall be the corresponding rate set
+forth on Exhibit E-1 for such Golf Course. The Minimum Rounds Rate for each Golf
+Course shall thereafter be adjusted annually as set forth in the following
+sentence. On each Minimum Rounds Rate Escalator Adjustment Date during the Term,
+the
+
+
+10
+
+--------------------------------------------------------------------------------
+
+
+
+
+Minimum Rounds Rate for each Golf Course for such calendar year shall be
+adjusted to be equal to the applicable Minimum Rounds Rate for such Golf Course
+during the immediately preceding calendar year, multiplied by the Escalator.
+“Minimum Rounds Rate Escalator Adjustment Date”: The first day of each Fiscal
+Year commencing on January 1, 2019.
+“Minimum Rounds Reduction Amount”: A proportionate reduction of the minimum
+number of Complimentary Golf Rounds applicable in determining the Minimum Rounds
+Per Month and the Minimum Rounds Per Year, which proportionate amount shall be
+determined in accordance with the following sentence. In the event that this
+Agreement terminates (or expires) with respect to any Golf Course(s) (including
+any Ground Leased Golf Course(s)) pursuant to Section 7.3, Section 11.2(a),
+Section 11.2(b), Section 12.1(a), Section 12.1(b), Section 12.3 or Article XVI,
+the above-described proportionate amount shall be equal to (a) in the case of
+the Minimum Rounds Per Month, the amount(s) related to the applicable Golf
+Course(s) for which this Agreement terminates (or expires) set forth in each
+“Minimum # of Complimentary Golf Rounds Per Month (Minimum Rounds Per Month)”
+column on Exhibit E-1, and (b) in the case of the Minimum Rounds Per Year, the
+amount(s) related to the applicable Golf Course(s) for which this Agreement
+terminates (or expires) set forth in the “Total (Minimum Rounds Per Year)”
+column on Exhibit E-1.
+“Monthly Invoice”: As defined in Section 3.4.
+“Monthly Minimum Rounds Fee”: With respect to each Golf Course, a monthly amount
+equal to the product of (1) the applicable Minimum Rounds Rate for such Golf
+Course multiplied by (2) the applicable number of Minimum Rounds Per Month for
+such Golf Course.
+“Monthly Other Sponsored Rounds Fee”: With respect to each Golf Course, a
+monthly amount equal to the aggregate of the Other Sponsored Rounds Charges for
+all of the Other Sponsored Rounds For The Month at such Golf Course.
+“Notice”: A notice given in accordance with Article XXIV.
+“NRS”: The Nevada Revised Statutes, as amended or supplemented from time to
+time.
+“OFAC”: As defined in Article XXVI.
+“Omnibus Amendment”: That certain Omnibus Amendment to Leases by and among
+Regional Landlord, CPLV Landlord, Joliet Landlord, Regional Tenant, CPLV Tenant,
+Joliet Tenant and the other parties party thereto, dated as of June 1, 2020.
+“Other Sponsored Rounds Charge”: For each of the Other Sponsored Rounds For The
+Year or each of the Other Sponsored Rounds For The Month (as the case may be),
+an amount equal to seventy-five percent (75%) of the then applicable Tee Sheet
+Rate.
+
+
+11
+
+--------------------------------------------------------------------------------
+
+
+
+
+“Other Sponsored Rounds For The Month”: With respect to each Golf Course, all
+Complimentary Golf Rounds, to the extent in excess of the Minimum Rounds Per
+Month, at such Golf Course during the applicable calendar month.
+“Other Sponsored Rounds For The Year”: With respect to each Golf Course, all
+Complimentary Golf Rounds, to the extent in excess of the Minimum Rounds Per
+Year, at such Golf Course during the applicable calendar year.
+“Overdue Rate”: On any date, a rate equal to five (5) percentage points above
+the Prime Rate, but in no event greater than the maximum rate then permitted
+under applicable law.
+“Owner”: As defined in the preamble.
+“Owner Event of Default”: As defined in Section 13.3.
+“Owner Indemnified Parties”: As defined in Article XV.
+“Owner Licensing Event”: (a) Either (1) a communication (whether oral or in
+writing) by or from any Gaming Authority to User or any of its Affiliates or
+other action by any Gaming Authority that indicates that such Gaming Authority
+may find that, or (2) a determination by User, in its sole but reasonable
+discretion and pursuant to customary internal processes that, the association of
+any member of the Owner Subject Group with User or any of its Affiliates is
+likely to (i) result in a disciplinary action relating to, or the loss of,
+inability to reinstate or failure to obtain, any registration, application or
+license or any other rights or entitlements held or required to be held by User
+or any of its Affiliates under any Gaming Law, or (ii) violate any Gaming Law to
+which User or any of its Affiliates is subject; or (b) any member of the Owner
+Subject Group is required to be licensed, registered, qualified or found
+suitable under any Gaming Law, and such Person is not or does not remain so
+licensed, registered, qualified or found suitable within any applicable
+timeframes required by the applicable Gaming Authority, or, after becoming so
+licensed, registered, qualified or found suitable, fails to remain so. For
+purposes of this definition, an “Affiliate” of User includes any Person for
+which User or its Affiliate is providing management services.
+“Owner Rights and Privileges”: As defined in Section 2.1.
+“Owner Subject Group”: Owner, Owner’s Affiliates and its and their principals,
+direct or indirect shareholders, officers, directors, agents, employees and
+other related Persons (including in the case of any trusts or similar Persons,
+the direct or indirect beneficiaries of such trust or similar Persons),
+excluding User and its Affiliates.
+“Owner’s Statement”: As defined in Section 3.5.
+“Parent Entity”: With respect to any Person, any corporation, association,
+limited partnership, limited liability company or other entity which at the time
+of determination (a) owns or controls, directly or indirectly, more than fifty
+percent (50%) of the total voting power of shares of capital stock (without
+regard to the occurrence of any contingency) entitled to vote in the election of
+directors, managers or trustees of such Person, (b) owns or controls, directly
+or indirectly, more
+
+
+12
+
+--------------------------------------------------------------------------------
+
+
+
+
+than fifty percent (50%) of the capital accounts, distribution rights, total
+equity and voting interests or general and limited partnership interests, as
+applicable, of such Person, whether in the form of membership, general, special
+or limited partnership interests or otherwise, or (c) is the controlling general
+partner or managing member of, or otherwise controls, such entity.
+“Partial Taking”: As defined in Section 12.1(b).
+“Party��� and “Parties”: Owner and/or User, as the context requires.
+“Payment Date”: Any due date for the payment of the installments of Golf Course
+Use Payments or Additional Charges payable under this Agreement.
+“Permitted User Lender”: The lender or noteholder or other investor or any agent
+or trustee or similar representative on behalf of one or more lenders or
+noteholders or other investors in connection with indebtedness secured by a
+Permitted User Security Instrument, in each case as and to the extent such
+Person has the power to act (subject to obtaining the requisite instructions) on
+behalf of all lenders, noteholders or other investors with respect to such
+Permitted User Security Instrument; provided such lender or noteholder or other
+investor or such agent or trustee or similar representative (but not necessarily
+the lenders, noteholders or other investors which it represents) is a banking or
+other institution that in the ordinary course acts as a lender, agent or trustee
+or similar representative (in each case, on behalf of a group of lenders or
+noteholders) in respect of financings of similar size as the Tenant’s Initial
+Financing; and provided, further, that, in all events, (i) no agent, trustee or
+similar representative shall be User, CEOC, CEC or any of their Affiliates,
+respectively (each, a “ Prohibited Agent”), and (ii) no (A) Prohibited Agent
+(excluding any Person that is a Prohibited Agent as a result of its ownership of
+publicly-traded shares in any Person), or (B) entity that owns, directly or
+indirectly (but excluding any ownership of publicly-traded shares in CEC or any
+of its Affiliates), higher than the lesser of (1) ten percent (10%) of the
+Equity Interests in User or (2) a Controlling legal or beneficial interest in
+User, may collectively hold an amount of the indebtedness secured by a Permitted
+User Security Instrument higher than the lesser of (x) twenty-five percent (25%)
+thereof and (y) the principal amount thereof required to satisfy the threshold
+for requisite consenting lenders to amend the terms of such indebtedness that
+affect all lenders thereunder.
+“Permitted User Security Instrument”: Any security agreement, pledge agreement
+or similar document creating or evidencing a lien on User’s interest in this
+Agreement (or all the direct or indirect interest therein at any tier of
+ownership, including without limitation, a lien on direct or indirect Equity
+Interests in User), granted to or for the benefit of a Permitted User Lender as
+security for the indebtedness of User or its Affiliates.
+“Person”: Any individual, corporation, limited liability company, partnership,
+joint venture, association, joint stock company, trust, unincorporated
+organization, government or any agency or political subdivision thereof or any
+other form of entity.
+“Primary Intended Use”: (i) Eighteen (18) hole golf course and related uses,
+(ii) ancillary retail use, (iii) such other uses required under any Legal
+Requirements (including those mandated by any applicable regulators), (iv) such
+other ancillary uses, but in all events consistent
+
+
+13
+
+--------------------------------------------------------------------------------
+
+
+
+
+with the current use of the Golf Courses or any portion thereof as of the
+Commencement Date or with then-prevailing golf course industry use (including
+developing, altering and/or improving portions of the property on which any Golf
+Course is situated as expressly permitted by the last sentence of Section
+2.1(a)(i) and otherwise provided by this Agreement), and/or (v) such other use
+as shall be agreed to by Owner and User from time to time in their reasonable
+discretion.
+“Prime Rate”: On any date, a rate equal to the annual rate on such date publicly
+announced by JPMorgan Chase Bank, N.A. (provided that if JPMorgan Chase Bank,
+N.A. ceases to publish such rate, the Prime Rate shall be determined according
+to the comparable prime rate of another comparable nationally known money center
+bank reasonably selected by Owner), to be its prime rate for ninety (90)-day
+unsecured loans to its corporate borrowers of the highest credit standing, but
+in no event greater than the maximum rate then permitted under applicable law.
+“Prior Months”: As defined in the definition of CPI Increase.
+“Products and Materials”: All products, merchandise and other materials, in any
+format now or hereafter known, bearing or incorporating any of the Licensed
+Trademarks, which identify or promote the Rio Secco Golf Course, or goods or
+services offered thereby or in connection therewith, including goods, packaging,
+labeling, point-of-sale materials, websites, social media pages, trade show
+displays, sales materials and advertising.
+“Prohibited Agent”: As defined in the definition of Permitted User Lender.
+“Prohibited Persons”: As defined in Article XXVI.
+“PropCo”: VICI Properties L.P., a Delaware limited partnership.
+“PropCo 1”: VICI Properties 1 LLC, a Delaware limited liability company.
+“Protected Names”: As defined in Section 27.13.
+“Regional Landlord”: The “Landlord” as defined in the Regional Lease.
+“Regional Lease”: That certain Lease (Non-CPLV), dated as of the Commencement
+Date, by and among the entities listed on Schedule A thereto, CEOC and the
+entities listed on Schedule B thereto, and, solely for the purposes of the
+penultimate paragraph of Section 1.1 thereof, Propco TRS LLC, a Delaware limited
+liability company, as (i) amended by that certain First Amendment to Lease
+(Non-CPLV), dated as of December 22, 2017, (ii) further amended by that certain
+Second Amendment to Lease (Non-CPLV) and Ratification of SNDA, dated as of
+February 16, 2018, (iii) further amended by that certain Third Amendment to
+Lease (Non-CPLV), dated as of April 2, 2018, (iv) further amended by that
+certain Fourth Amendment to Lease (Non-CPLV), dated as of the Fourth Amendment
+Date, (v) further amended by that certain Omnibus Amendment, (vi) further
+amended by that certain Fifth Amendment to Lease (Non-CPLV), dated as of the
+Fifth Amendment Date, and (vii) may be further amended, restated or otherwise
+modified from time to time.
+“Regional Tenant”: The “Tenant” as defined in the Regional Lease.
+
+
+14
+
+--------------------------------------------------------------------------------
+
+
+
+
+“Renewal Notice”: As defined in Section 2.3.
+“Renewal Term”: As defined in Section 2.3.
+“Rent”: “Rent” as defined in the Regional Lease.
+“Representatives”: With respect to any Person, such Person’s officers,
+employees, directors, accountants, attorneys and other consultants, experts or
+agents of such Person, and actual or prospective arrangers, underwriters,
+investors or lenders with respect to indebtedness or Equity Interests that may
+be issued by such Person, to the extent that any of the foregoing actually
+receives non-public information hereunder. In addition, and without limitation
+of the foregoing, the term “Representatives” shall include, (a) in the case of
+Owner, PropCo 1, PropCo, Landlord REIT, Golf TRS and any Affiliate thereof, and
+(b) in the case of User, CEOC, CEC and any Affiliate thereof.
+“Rio”: Rio Properties, LLC, a Nevada limited liability company.
+“Rio Secco Golf Course”: The Rio Secco golf course property located in
+Henderson, Nevada as of the Commencement Date.
+“SEC”: The United States Securities and Exchange Commission.
+“Section 27.5 Dispute”: As defined in Section 27.5.
+“Severance Agreement”: A separate agreement with respect to a Golf Course,
+created when Owner transfers any individual Golf Course (or several Golf Courses
+but not all of the Golf Courses), which agreement shall comply with the
+requirements set forth in Article XVI hereof.
+“Stated Expiration Date”: As defined in Section 2.2.
+“Subsidiary”: As to any Person, (i) any corporation more than fifty percent
+(50%) of whose stock of any class or classes having by the terms thereof
+ordinary voting power to elect a majority of the directors of such corporation
+(irrespective of whether or not at the time stock of any class or classes of
+such corporation shall have or might have voting power by reason of the
+happening of any contingency) is at the time of determination owned by such
+Person and/or one or more Subsidiaries of such Person, and (ii) any partnership,
+limited liability company, association, joint venture or other entity in which
+such Person and/or one or more Subsidiaries of such Person has more than a fifty
+percent (50%) Equity Interest at the time of determination.
+“Taking”: Any taking of all or any part of the Golf Courses, in or by
+Condemnation, including by reason of the temporary requisition of the use or
+occupancy of all or any part of the Golf Courses by any governmental authority,
+civil or military.
+“Tee Sheet Rate”: With respect to an individual round of golf at a particular
+Golf Course, the applicable rate which a walk-in member of the general public
+would be charged to play such round of golf at such Golf Course if such member
+did not pay a reduced rate based on any discount associated with such member’s
+stay at any local resort or casino, including those operated by User,
+promotional code, coupon or other discount.
+
+
+15
+
+--------------------------------------------------------------------------------
+
+
+
+
+“Tenant Event of Default”: “Tenant Event of Default” as defined in the Regional
+Lease.
+“Tenant’s Initial Financing”: “Tenant’s Initial Financing” as defined in the
+Regional Lease.
+“Term”: As defined in Section 2.2.
+“Unavoidable Delay”: Delays due to strikes, lockouts, inability to procure
+materials, power failure, acts of God, governmental restrictions, enemy action,
+civil commotion, fire, unavoidable casualty or other causes beyond the
+reasonable control of the Party responsible for performing an obligation
+hereunder; provided, that lack of funds, in and of itself, shall not be deemed a
+cause beyond the reasonable control of a Party.
+“Unsuitable for Its Primary Intended Use”: A state or condition of any
+individual Golf Course such that by reason of a Partial Taking or a sale,
+assignment, transfer or conveyance of a portion (but not all) of such Golf
+Course pursuant to Section 16.1 (or other event, as applicable) such Golf Course
+cannot, following restoration thereof (to the extent commercially practical and
+solely with respect to a Partial Taking), be operated on a commercially
+practicable basis as an eighteen (18) hole golf course, taking into account,
+among other relevant economic factors, the amount of square footage and the
+estimated revenue affected by such Partial Taking or such sale, assignment,
+transfer or conveyance of a portion (but not all) of such Golf Course pursuant
+to Section 16.1 (or other event, as applicable).
+“Usage Year”: The first (1st) Usage Year of the Term shall be the period
+commencing on the Commencement Date and ending on the last day of the calendar
+month in which the first (1st) anniversary of the Commencement Date occurs, and
+each subsequent Usage Year shall be each period of twelve (12) full calendar
+months after the last day of the prior Usage Year, except that the final Usage
+Year of the Term shall end on the Expiration Date.
+“User”: As defined in the preamble.
+“User Event of Default”: As defined in Section 13.1.
+“User Indemnified Parties”: As defined in Article XV.
+“User Licensing Event”: (a) Either (1) a communication (whether oral or in
+writing) by or from any Gaming Authority to Owner or any of its Affiliates or
+other action by any Gaming Authority that indicates that such Gaming Authority
+may find that, or (2) a determination by Owner, in its sole but reasonable
+discretion and pursuant to customary internal processes that, the association of
+any member of the User Subject Group with Owner or any of its Affiliates is
+likely to, (i) result in a disciplinary action relating to, or the loss of,
+inability to reinstate or failure to obtain, any registration, application or
+license or any other rights or entitlements held or required to be held by Owner
+or any of its Affiliates under any Gaming Law, or (ii) violate any Gaming Law to
+which Owner or any of its Affiliates is subject; or (b) any member of the User
+Subject Group is required to be licensed, registered, qualified or found
+suitable under any Gaming Law, and such Person is
+
+
+16
+
+--------------------------------------------------------------------------------
+
+
+
+
+not or does not remain so licensed, registered, qualified or found suitable
+within any applicable timeframes required by the applicable Gaming Authority,
+or, after becoming so licensed, registered, qualified or found suitable, fails
+to remain so. For purposes of this definition, an “Affiliate” of Owner includes
+any Person for which Owner or its Affiliate is providing management services.
+“User Rights and Privileges”: As defined in Section 2.1.
+“User Subject Group”: User, User’s Affiliates and its and their principals,
+direct or indirect shareholders, officers, directors, agents, employees and
+other related Persons (including in the case of any trusts or similar Persons,
+the direct or indirect beneficiaries of such trust or similar Persons),
+excluding Owner and its Affiliates.
+ARTICLE II
+
+GRANT OF LICENSE; TERM
+2.1
+Golf Courses; Rights and Privileges; Minimum Rounds; Trademark License.
+
+(a)    User and Owner Rights and Privileges.
+(i)    Upon and subject to the terms and conditions hereinafter set forth, Owner
+grants to User, and User accepts from Owner, certain priority rights and
+privileges with respect to access and use of the golf course properties
+described on Exhibit A-1 attached hereto (each, a “Golf Course”; collectively,
+the “Golf Courses”) as more particularly set forth on Exhibit B attached hereto
+(collectively, the “User Rights and Privileges”). Such User Rights and
+Privileges are granted subject to all covenants, conditions, restrictions,
+easements and other matters of any nature, whether or not of record, affecting
+the Golf Courses or any portion thereof as of the Commencement Date and such
+subsequent covenants, conditions, restrictions, easements and other matters of
+any nature, whether or not of record, affecting the Golf Courses or any portion
+thereof that do not materially and adversely affect User’s rights under this
+Agreement or as may otherwise be agreed to in writing by Owner and User, whether
+or not of record, including any matters which would be disclosed by an
+inspection or accurate survey of the Golf Courses or any portion thereof. With
+respect to each Golf Course, Owner shall have the right to enter into any
+covenants, conditions, restrictions, easements and other matters of any nature,
+whether or not of record, affecting such Golf Course or any portion thereof
+without having agreed to same in writing with User but Owner may do so only if
+and to the extent the same does not render such Golf Course Unsuitable for Its
+Primary Intended Use. In addition, Owner shall have the right to develop, alter
+and/or improve portions of the property on which any Golf Course is situated for
+other uses but Owner may do so only if and to the extent that doing so does not
+render such Golf Course Unsuitable for Its Primary Intended Use.
+(ii)    In consideration of the foregoing grant of the User Rights and
+Privileges, User shall (A) pay to Owner the Membership Fee and the CES Use Fee
+(as more particularly described in Article III), (B) provide to Owner (or cause
+User’s Affiliates to provide to Owner) the rights and privileges set forth on
+Exhibit C attached hereto (collectively, the
+
+
+17
+
+--------------------------------------------------------------------------------
+
+
+
+
+“Owner Rights and Privileges”) and (C) sponsor (i.e., pay for, and use
+commercially reasonable efforts to refer to Owner), on a monthly basis, the
+Aggregate Minimum Rounds Per Month and, on an annual basis, the Aggregate
+Minimum Rounds Per Year (as more particularly described in Section 2.1(b)
+below).
+(b)    Minimum Rounds.
+(i)    User agrees to use commercially reasonable efforts to refer to Owner, at
+each Golf Course, a minimum number of Complimentary Golf Rounds per calendar
+year as more particularly set forth on Exhibit E-1 attached hereto
+(collectively, the “Minimum Rounds Per Year”), which Minimum Rounds Per Year
+shall be apportioned among each calendar month during each such calendar year as
+more particularly set forth on Exhibit E-1 attached hereto (collectively, the
+“Minimum Rounds Per Month”), in each case as such amounts may be reduced by the
+applicable Minimum Rounds Reduction Amount as described in Section 7.3, Section
+11.2(a), Section 11.2(b), Section 12.1(a), Section 12.1(b), Section 12.3 and
+Article XVI.
+(ii)    In consideration of the tee times that will be reserved (i.e., set
+aside) by Owner in order to accommodate the Aggregate Minimum Rounds Per Year
+and any Other Sponsored Rounds For The Year (as applicable), User shall pay to
+Owner the Complimentary Golf Rounds Fee (as more particularly described in
+Article III). For the avoidance of doubt, User’s failure to refer to Owner, at
+each Golf Course, the Minimum Rounds Per Year shall in no way affect User’s
+obligation to pay to Owner the portion of the Complimentary Golf Rounds Fee
+attributable to the aggregate of the Annual Minimum Rounds Fees for all of the
+Golf Courses.
+(c)    Trademark License. Subject to the terms and provisions set forth in this
+Agreement, CLC hereby grants to Owner, and Owner hereby accepts, a worldwide,
+royalty-free and non-transferable right and sublicense, for a term of eight (8)
+years from the Commencement Date (the “License Term”), to use the Licensed
+Trademarks solely (x) in connection with the operation, advertising, marketing
+and promotion of the Rio Secco Golf Course and (y) on or in connection with the
+use, manufacture, marketing, promotion, distribution, offer for sale and sale of
+Products and Materials. Owner acknowledges and agrees that the Licensed
+Trademarks are owned by Rio and licensed to CLC. Owner therefore agrees to
+comply with the terms and conditions applicable to sublicensees of the Licensed
+Trademarks, as set forth on Exhibit H hereto. The sublicense granted pursuant to
+this Section 2.1(c) shall be non-exclusive, except that such license shall be
+exclusive as to CES and its subsidiaries (including CLC); provided, that CES and
+its subsidiaries (including CLC) may continue to use the Licensed Trademarks and
+reference the Rio Secco Golf Course as necessary to comply with the terms and
+conditions of this Agreement (including, e.g., for promotional purposes in
+connection with the User Rights and Privileges set forth on Exhibit B hereto).
+2.2    Term. The term of this Agreement (the “Term”) shall commence on the
+Commencement Date and expire on the Expiration Date (i.e., the Term shall
+consist of the Initial Term plus all Renewal Terms, to the extent exercised as
+set forth in Section 2.3 below, subject to any earlier termination of the Term
+pursuant to the terms hereof). The initial stated term of this
+
+
+18
+
+--------------------------------------------------------------------------------
+
+
+
+
+Agreement (the “Initial Term”) shall commence on October 6, 2017 (the
+“Commencement Date”) and expire on July 31, 2035 (the “Initial Stated Expiration
+Date”). The “Stated Expiration Date” means the Initial Stated Expiration Date or
+the expiration date of the most recently exercised Renewal Term, as the case may
+be. Notwithstanding the foregoing or anything to the contrary contained herein,
+(a) if all of the Leases terminate in accordance with their respective terms,
+then, simultaneously with such termination of the Lease that terminates last,
+this Agreement shall automatically terminate, and (b) this Agreement may be
+terminated by User with respect to one or more Golf Courses, provided that any
+such termination pursuant to this clause (b) shall not relieve or diminish
+User’s obligation to pay the full amount of the Membership Fee as provided
+herein, which obligation shall survive the termination of this Agreement until
+all of the Leases have terminated in accordance with their respective terms, nor
+relieve or diminish Guarantor’s obligations under the Guaranty.
+2.3    Renewal Terms. The Term may be extended for four (4) separate “Renewal
+Terms” of five (5) years each if (a) at least twelve (12), but not more than
+eighteen (18), months prior to the then current Stated Expiration Date, User
+delivers to Owner a “Renewal Notice” stating that it is irrevocably exercising
+its right to extend this Agreement for one (1) Renewal Term; and (b) no User
+Event of Default shall have occurred and be continuing on the date Owner
+receives the Renewal Notice or on the last day of the then current Term (other
+than an User Event of Default that is in the process of being cured by a
+Permitted User Lender in compliance in all respects with Section 17.2). Subject
+to the provisions, terms and conditions of this Agreement, upon User’s timely
+delivery to Owner of a Renewal Notice, the Term shall be extended for the then
+applicable Renewal Term. During any such Renewal Term, except as specifically
+provided for herein, all of the provisions, terms and conditions of this
+Agreement shall remain in full force and effect. After the last Renewal Term,
+User shall have no further right to renew or extend the Term. If User fails to
+validly and timely exercise any right to extend this Agreement, then all
+subsequent rights to extend the Term shall terminate. Notwithstanding the
+foregoing or anything to the contrary contained herein, (i) if any right to
+extend the term of any of the Leases is validly and timely exercised pursuant to
+Section 1.4 of such Lease, then (A) User shall be required to exercise the
+corresponding right to extend this Agreement for the corresponding Renewal Term
+hereunder, (B) User shall be deemed to have validly and timely exercised such
+right to extend this Agreement described in the foregoing clause (A), and (C)
+this Agreement shall automatically be extended for the applicable Renewal Term
+without any further action by User, and (ii) if all of the rights to extend the
+terms of the Leases fail to be validly and timely exercised pursuant to Section
+1.4 of each of the Leases, then all corresponding and subsequent rights to
+extend the Term hereunder shall terminate and User shall not have any right to
+extend this Agreement.
+ARTICLE III
+
+GOLF COURSE USE PAYMENTS
+3.1
+Payment of Membership Fee and CES Use Fee.
+
+(a)    Generally. During the Term, User will pay to Owner each of the Golf
+Course Use Payments and Additional Charges in lawful money of the United States
+of America and legal tender for the payment of public and private debts, in the
+manner provided in Section 3.3. On the
+
+
+19
+
+--------------------------------------------------------------------------------
+
+
+
+
+Commencement Date, a prorated portion of the first monthly installment of the
+Membership Fee shall be paid by User for the period from the Commencement Date
+until the last day of the calendar month in which the Commencement Date occurs,
+based on the number of days during such period. Thereafter, the Membership Fee
+shall be payable by User in consecutive monthly installments equal to
+one-twelfth (1/12th) of the Membership Fee amount for the applicable Usage Year
+on the first (1st) day of each calendar month (or the immediately preceding
+Business Day if the first (1st) day of the month is not a Business Day), in
+advance for such calendar month, during that Usage Year. With respect to the CES
+Use Fee, (i) on the Commencement Date, a prorated portion of the first quarterly
+installment of the CES Use Fee shall be paid by User for the period from the
+Commencement Date until the last day of the calendar quarter in which the
+Commencement Date occurs, based on the number of days during such period, and
+(ii) thereafter, the CES Use Fee shall be payable by User in consecutive
+quarterly installments equal to one-fourth (1/4th) of the CES Use Fee amount for
+the applicable Usage Year on the first (1st) day of each calendar quarter (or
+the immediately preceding Business Day if the first (1st) day of the quarter is
+not a Business Day), in advance for such calendar quarter, during that Usage
+Year. The Complimentary Golf Rounds Fee shall be payable in accordance with the
+terms and provisions of Section 3.5 below.
+(b)    Proration for Partial Usage Year. Unless otherwise agreed by the Parties
+in writing, the Golf Course Use Payments shall each be prorated on a per diem
+basis as to any Usage Year containing less than twelve (12) full calendar
+months, and with respect to any installment thereof due for any partial months
+at the beginning and end of the Term.
+3.2    Late Payment. User hereby acknowledges that the late payment by User to
+Owner of any of the Golf Course Use Payments or Additional Charges will cause
+Owner to incur costs not contemplated hereunder, the exact amount of which is
+presently anticipated to be extremely difficult to ascertain. Accordingly, if
+any installment of any of the Golf Course Use Payments or Additional Charges
+payable directly to Owner shall not be paid within four (4) days after its due
+date, User shall pay to Owner on demand a late charge equal to the lesser of
+(a) five percent (5%) of the amount of such installment or Additional Charges
+and (b) the maximum amount permitted by law. The Parties agree that this late
+charge represents a fair and reasonable estimate of the costs that Owner will
+incur by reason of late payment by User. The Parties further agree that any such
+late charge constitutes Golf Course Use Payments or Additional Charges (as
+applicable), and not interest, and such assessment does not constitute a lender
+or borrower/creditor relationship between Owner and User. If any installment of
+any of the Golf Course Use Payments (or Additional Charges payable directly to
+Owner) shall not be paid within nine (9) days after its due date, the amount
+unpaid, including any late charges previously accrued and unpaid, shall bear
+interest at the Overdue Rate (from such ninth (9th) day after the due date of
+such installment until the date of payment thereof) (including interest accruing
+during the pendency of any bankruptcy, insolvency, receivership or other similar
+proceeding, whether or not a claim for such interest is allowed or allowable in
+such proceeding), and User shall pay such interest to Owner on demand. The
+payment of such late charge or such interest shall not constitute a waiver of,
+nor excuse or cure, any default under this Agreement, nor prevent Owner from
+exercising any other rights and remedies available to Owner. No failure by Owner
+to insist upon strict performance by User of User’s obligation to pay late
+charges and interest on sums overdue shall constitute a waiver by Owner of its
+right to enforce the provisions, terms and conditions of this Section 3.2. No
+payment by User nor receipt by Owner of a lesser
+
+
+20
+
+--------------------------------------------------------------------------------
+
+
+
+
+amount than may be required to be paid hereunder shall be deemed to be other
+than on account of any such payment, nor shall any endorsement or statement on
+any check or any letter accompanying any check tendered as payment be deemed an
+accord and satisfaction and Owner, in its sole discretion, may accept such check
+or payment without prejudice to Owner’s right to recover the balance of such
+payment due or pursue any other right or remedy in this Agreement provided.
+3.3    Method of Payment. Each of the Golf Course Use Payments and Additional
+Charges to be paid to Owner shall be paid by electronic funds transfer debit
+transactions through wire transfer, ACH or direct deposit of immediately
+available federal funds and shall be initiated by User for settlement on or
+before the applicable Payment Date in each case (or, in respect of Additional
+Charges, as applicable, such other date as may be applicable hereunder);
+provided, however, if the Payment Date is not a Business Day, then settlement
+shall be made on the preceding Business Day. Owner shall provide User with
+appropriate wire transfer, ACH and direct deposit information in a Notice from
+Owner to User. If Owner directs User to pay any of the Golf Course Use Payments
+or any Additional Charges to any party other than Owner, User shall send to
+Owner, simultaneously with such payment, a copy of the transmittal letter or
+invoice and a check whereby such payment is made or such other evidence of
+payment as Owner may reasonably require. No amounts due and payable under this
+Agreement may be offset against any amounts due and payable under any other
+agreement.
+3.4    Monthly Invoice. Within ten (10) Business Days after the end of each
+calendar month during the Term, Owner shall furnish to User an invoice for all
+Monthly Minimum Rounds Fees, Monthly Other Sponsored Rounds Fees and Additional
+Charges (if any) which are then payable hereunder (each, a “Monthly Invoice”).
+For the avoidance of doubt, each Monthly Invoice will be based solely on
+activities at the Golf Courses for the calendar month to which such Monthly
+Invoice relates, and any reconciliation credits or refunds will be applied
+against the invoiced amounts only after the corresponding end-of-quarter
+reconciliation (as more particularly described below) has been completed. Within
+thirty (30) days following the date of the giving of a Monthly Invoice (which
+shall be determined in accordance with Article XXIV hereof), User shall pay to
+Owner all amounts set forth on such Monthly Invoice. No delay by Owner in
+providing any statement, invoice or billing (including, without limitation, any
+Monthly Invoice or any Owner’s Statement) to User shall be deemed a default by
+Owner or a waiver of amounts due to Owner. User’s failure to object to any
+statement, invoice or billing by Owner (including, without limitation, any
+Monthly Invoice or any Owner’s Statement) within ninety (90) days after the date
+of the giving thereof (which shall be determined in accordance with Article XXIV
+hereof) shall constitute User’s approval of, and waiver of any objection to,
+such statement, invoice or billing and shall conclusively establish such
+statement, invoice or billing as being in accordance with this Agreement.
+3.5    Payment of Complimentary Golf Rounds Fee. Notwithstanding the foregoing
+or anything to the contrary contained herein, the provisions of this Section 3.5
+shall be applicable with respect to the Complimentary Golf Rounds Fee, and in
+the event of any conflict between the provisions of this Section 3.5 and the
+other provisions of this Article III, the provisions of this Section 3.5 shall
+govern.  Payments in respect of the Complimentary Golf Rounds Fee shall be made
+by User to Owner, in consecutive monthly installments on or before the thirtieth
+(30th) day following the date of the giving of each Monthly Invoice (which shall
+be determined in accordance
+
+
+21
+
+--------------------------------------------------------------------------------
+
+
+
+
+with Article XXIV hereof) (in arrears for the calendar month to which such
+Monthly Invoice relates), and each such payment shall include the applicable
+Monthly Minimum Rounds Fees and the applicable Monthly Other Sponsored Rounds
+Fees for all of the Golf Courses (subject to quarterly reconciliation as set
+forth below).  Within forty-five (45) days after the end of each calendar
+quarter during the Term, Owner shall furnish to User a statement showing (a) the
+number of Complimentary Golf Rounds attributable to such calendar quarter, (b)
+the year-to-date (as of the end of such calendar quarter) number of
+Complimentary Golf Rounds attributable to the calendar year of which such
+calendar quarter is a part, and (c) a calculation of the Complimentary Golf
+Rounds Reimbursement Amount (if any) which is then owing hereunder (each, an
+“Owner’s Statement”).  Within thirty (30) days following the date of the giving
+of an Owner’s Statement (which shall be determined in accordance with Article
+XXIV hereof), Owner shall provide to User a credit against payments in respect
+of the Complimentary Golf Rounds Fee next coming due (or a refund if at the end
+of the Term, subject to Article XIII) in the amount of the Complimentary Golf
+Rounds Reimbursement Amount (if any) set forth on such Owner’s Statement.  For
+purposes hereof, the term “Complimentary Golf Rounds Reimbursement Amount” shall
+mean an amount equal to the difference of (i) the aggregate amount of the
+installment payments theretofore made by User to Owner in respect of the
+Complimentary Golf Rounds Fee pursuant to this Section 3.5 during the applicable
+calendar year, minus (ii) the sum of (A) the aggregate amount of all Monthly
+Minimum Rounds Fees for all of the Golf Courses, on a year-to-date basis,
+payable for all of the months during such calendar year, through and including
+such calendar quarter, plus (B) the aggregate amount of the following for all of
+the Golf Courses: with respect to each Golf Course, the product of (1) the
+greater of (x) zero (0), and (y) the difference of (I) for such Golf Course, as
+applicable, the aggregate number of Complimentary Golf Rounds at such Golf
+Course, on a year-to-date basis, for such calendar year, through and including
+such calendar quarter, minus (II) for such Golf Course, as applicable, the
+aggregate number of Minimum Rounds Per Month for such Golf Course for all of the
+months during such calendar year, through and including such calendar quarter,
+multiplied by (2) the applicable Other Sponsored Rounds Charge for such Golf
+Course. For the avoidance of doubt, in performing any end-of-quarter
+reconciliation, with respect to each Golf Course, (aa) the aggregate
+year-to-date number of Complimentary Golf Rounds at such Golf Course will be
+applied first towards satisfaction of each of the Minimum Rounds Per Month for
+such Golf Course through and including the applicable calendar quarter (and, in
+connection therewith, some or all of the Other Sponsored Rounds For The Month at
+such Golf Course during the applicable calendar quarter may ultimately be
+applied to satisfy the Minimum Rounds Per Month of a preceding, or subsequent,
+month in the calendar year of which the applicable calendar quarter is a part);
+and (bb) if the aggregate year-to-date number of Other Sponsored Rounds For The
+Month for such Golf Course exceeds the aggregate year-to-date number of
+unsatisfied Minimum Rounds Per Month for such Golf Course, then the
+reconciliation will include an adjustment of the rate applicable to such excess
+for purposes of calculating the Complimentary Golf Rounds Fee (i.e., the
+applicable rate with respect to such excess will be the applicable Minimum
+Rounds Rate for such Golf Course (rather than the then applicable Tee Sheet
+Rate)).
+ARTICLE IV
+
+ADDITIONAL CHARGES
+
+
+22
+
+--------------------------------------------------------------------------------
+
+
+
+
+Owner and User acknowledge and agree that the Golf Course Use Payments are in
+consideration of the User Rights and Privileges and the tee times to be reserved
+(i.e., set aside) to accommodate the Aggregate Minimum Rounds Per Year and any
+Other Sponsored Rounds For The Year (as applicable). In addition to the Golf
+Course Use Payments, User shall (a) pay Owner for charges for goods and services
+(other than greens fees) provided by Owner at the Golf Courses (e.g., food,
+beverages and pro shop merchandise) to, or at the written request (which may be
+via electronic mail) of, User, in each case in a manner consistent with past
+practice, and (b) be responsible for other Additional Charges in accordance with
+the applicable terms hereof.
+ARTICLE V
+
+NO TERMINATION, ABATEMENT, ETC.
+Except as otherwise specifically provided in this Agreement, User shall remain
+bound by this Agreement in accordance with its terms. The obligations of Owner
+and User hereunder shall be separate and independent covenants and agreements
+and each of the Golf Course Use Payments and all other sums payable by User
+hereunder shall continue to be payable in all events unless the obligations to
+pay the same shall be terminated pursuant to the express provisions of this
+Agreement or by termination of this Agreement as to all of the Golf Courses as a
+result of all of the Leases having been terminated in accordance with their
+respective terms other than a termination of this Agreement by Owner pursuant to
+Section 13.2. Without limitation of the preceding sentence, the respective
+obligations of Owner and User shall not be affected by reason of, except as
+expressly set forth in Articles XI and XII, (a) any damage to or destruction of
+the Golf Courses or any portion thereof from whatever cause, or any Condemnation
+of the Golf Courses or any portion thereof or, discontinuance of any service or
+utility servicing the same; (b) the lawful or unlawful prohibition of, or
+restriction upon, User’s use of the Golf Courses or any portion thereof or the
+interference with such use by any Person; (c) any claim that User has or might
+have against Owner by reason of any default or breach of any warranty by Owner
+hereunder or under any other agreement between Owner and User or to which Owner
+and User are parties; (d) any bankruptcy, insolvency, reorganization,
+consolidation, readjustment, liquidation, dissolution, winding up or other
+proceedings affecting Owner or any assignee or transferee of Owner; or (e) for
+any other cause, whether similar or dissimilar to any of the foregoing. User
+hereby specifically waives all rights arising from any occurrence whatsoever
+which may now or hereafter be conferred upon it by law (i) to modify, surrender
+or terminate this Agreement, or (ii) which may entitle User to any abatement,
+deduction, reduction, suspension or deferment of or defense, counterclaim, claim
+or set-off against any of the Golf Course Use Payments or other sums payable by
+User hereunder, except in each case as may be otherwise specifically provided in
+this Agreement.
+ARTICLE VI
+OWNERSHIP OF GOLF COURSES
+Owner and User acknowledge and agree that they have executed and delivered this
+Agreement with the understanding that (i) the Golf Courses are the property of
+Owner, (ii) User has only the right to access and use the Golf Courses upon the
+terms and conditions of this Agreement, (iii) during the Term, each Golf Course
+is an amenity relating to the Leased Property under the
+
+
+23
+
+--------------------------------------------------------------------------------
+
+
+
+
+Leases as well as a third-party business open to the public, (iv) the business
+relationship created by this Agreement and any related documents is and at all
+times shall remain that of licensor and licensee, (v) this Agreement has been
+entered into by each Party in reliance upon the mutual covenants, conditions and
+agreements contained herein, and (vi) none of the agreements contained herein is
+intended, nor shall the same be deemed or construed, to create a partnership
+between Owner and User, to make them joint venturers, to make User an agent,
+legal representative, partner, subsidiary or employee of Owner, or to make Owner
+in any way responsible for the debts, obligations or losses of User.
+ARTICLE VII
+
+PRESENT CONDITION & USE
+7.1    Condition of the Golf Courses. User confirms that User has examined and
+otherwise has knowledge of the condition of the Golf Courses prior to and as of
+the execution and delivery of this Agreement and has found the same to be
+satisfactory for its purposes hereunder, it being understood and acknowledged by
+User that, immediately prior to Owner’s acquisition of the Golf Courses and
+contemporaneous entry into this Agreement, User (or its Affiliates) was the
+owner of all of Owner’s interest in and to the Golf Courses and, accordingly,
+User is charged with, and deemed to have, full and complete knowledge of all
+aspects of the condition and state of the Golf Courses as of the Commencement
+Date. Without limitation of the foregoing and regardless of any examination or
+inspection made by User, and whether or not any patent or latent defect or
+condition was revealed or discovered thereby, User is using the Golf Courses “as
+is” in its present condition. Without limitation of the foregoing, User waives
+any claim or action against Owner in respect of the condition of the Golf
+Courses including any defects or adverse conditions not discovered or otherwise
+known by User as of the Commencement Date. OWNER MAKES NO WARRANTY OR
+REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, IN RESPECT OF THE GOLF COURSES
+OR ANY PART THEREOF, INCLUDING AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION
+FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE. This Section 7.1 shall not be
+construed to limit Owner’s express indemnities made hereunder.
+7.2
+Use of the Golf Courses. During the Term, each Golf Course shall be used for the
+Primary Intended Use.
+
+7.3    Ground Leases.
+(a)    Subject to Section 7.3(b) and Section 7.3(c) below, in the event of
+cancellation or termination of any Ground Lease for any reason whatsoever
+whether voluntary or involuntary (by operation of law or otherwise) prior to the
+Expiration Date (other than the cancellation or termination of a Ground Lease
+entered into in connection with a sale-leaseback transaction by Owner (other
+than if such cancellation or termination resulted from User’s default under this
+Agreement), which cancellation or termination results in the Golf Course leased
+under such Ground Lease no longer being subject to this Agreement), then this
+Agreement shall remain in full force and effect and User’s obligation to pay
+each of the Golf Course Use Payments (excluding the portion of the Complimentary
+Golf Rounds Fee attributable to such Ground Leased Golf Course) and all
+Additional Charges required by this Agreement, and all other obligations of User
+hereunder (other than such obligations
+
+
+24
+
+--------------------------------------------------------------------------------
+
+
+
+
+of User hereunder that concern solely the applicable Ground Leased Golf Course
+demised under the affected Ground Lease (including, without limitation, the
+obligations of User hereunder with respect to the portion of the Complimentary
+Golf Rounds Fee attributable to such Ground Leased Golf Course), which, for the
+avoidance of doubt, shall under no circumstances include or be deemed to include
+the obligations of User hereunder with respect to all or any portion of the
+Membership Fee), shall continue unabated (and, for the avoidance of doubt, the
+Minimum Rounds Per Month and the Minimum Rounds Per Year shall each be adjusted
+in accordance with the Minimum Rounds Reduction Amount (and the Complimentary
+Golf Rounds Fee shall be re-determined in connection therewith)); provided that
+if Owner enters into a replacement lease with respect to the applicable Ground
+Leased Golf Course on substantially similar terms to those of such cancelled or
+terminated Ground Lease, then such replacement lease shall automatically become
+a Ground Lease hereunder and such Ground Leased Golf Course shall remain part of
+the Golf Courses hereunder. Nothing contained in this Agreement shall create, or
+be construed as creating, any privity of contract or privity of estate between
+the lessor under any applicable Ground Lease (in each case, the “Ground Lessor”)
+and User.
+(b)    With respect to any Ground Leased Golf Course, the Ground Lease for which
+has an expiration date (taking into account any renewal options exercised
+thereunder as of the Commencement Date or hereafter exercised) prior to the
+Expiration Date, this Agreement shall expire solely with respect to such Ground
+Leased Golf Course concurrently with such Ground Lease expiration date (taking
+into account the following sentences of this Section 7.3(b)). There shall be no
+reduction in any of the Golf Course Use Payments by reason of such expiration
+with respect to, and the corresponding removal from this Agreement of, any such
+Ground Leased Golf Course, except that the portion of the Complimentary Golf
+Rounds Fee attributable to such Ground Leased Golf Course shall no longer
+constitute a part of the Golf Course Use Payments (and, for the avoidance of
+doubt, the Minimum Rounds Per Month and the Minimum Rounds Per Year shall each
+be adjusted in accordance with the Minimum Rounds Reduction Amount (and the
+Complimentary Golf Rounds Fee shall be re-determined in connection therewith)).
+Unless all of the rights to extend the terms of the Leases fail to be validly
+and timely exercised pursuant to Section 1.4 of each of the Leases, Owner (as
+ground lessee) shall be required to (at the appropriate times) exercise all
+renewal options contained in each Ground Lease so as to extend the term thereof,
+and Owner shall provide User with a copy of Owner’s exercise of such renewal
+option.
+(c)    Notwithstanding anything to the contrary set forth in this Agreement, in
+the event that, despite any cancellation or termination of any Ground Lease for
+any reason whatsoever whether voluntary or involuntary (by operation of law or
+otherwise), Owner continues to be able to make available to User use of the
+applicable Ground Leased Golf Course demised under the affected Ground Lease for
+the Primary Intended Use, then all rights and obligations of Owner and User with
+respect to such Ground Leased Golf Course shall continue in full force and
+effect.
+(d)    Nothing contained in this Agreement amends, or shall be construed to
+amend, any provision of the Ground Leases.
+ARTICLE VIII
+
+REPRESENTATIONS AND WARRANTIES
+
+
+25
+
+--------------------------------------------------------------------------------
+
+
+
+
+Each Party represents and warrants to the other that as of the Commencement
+Date: (i) this Agreement has been duly authorized and shall be binding upon it;
+(ii) it is duly organized, validly existing and in good standing under the laws
+of the state of its formation and, as applicable, is duly authorized and
+qualified to perform this Agreement within the States where the Golf Courses are
+located; and (iii) neither this Agreement nor any other document executed or to
+be executed in connection herewith violates the terms of any other agreement of
+such Party.
+ARTICLE IX
+
+MAINTENANCE, REPAIR AND OPERATIONS
+Subject to the following provisions of this Article IX, Owner shall, at Owner’s
+sole cost and expense, (a) operate, maintain, repair and replace the Golf
+Courses, and every portion thereof, including, without limitation, undertaking
+and performing capital improvements, in each case (i) in a manner substantially
+consistent with the prior operating history of the Golf Courses and/or
+applicable portion thereof, and (ii) in conformity in all material respects with
+all Legal Requirements, and (b) be responsible for all taxes, utilities, and
+other costs of ownership of the Golf Courses. Except to the extent necessary
+during restoration after a Casualty Event, Taking or Condemnation, or necessary
+or appropriate for purposes of performing maintenance and repairs and/or
+renovations in Owner’s (and only Owner’s) business judgment, Owner shall keep
+the Golf Courses continuously open for business and operating in the ordinary
+course. In the event that a Golf Course closes as a result of any restoration or
+renovation, User’s obligation to pay each of the Golf Course Use Payments and
+all Additional Charges required by this Agreement shall remain unabated during
+the period that such Golf Course is closed; except, however, if such Golf Course
+remains closed for six (6) consecutive calendar months, then, during the period
+commencing on the day immediately after the expiration of such six (6)-month
+period and ending on the day immediately preceding the date on which such Golf
+Course reopens, User shall not be required to (i) sponsor any portion of the
+Aggregate Minimum Rounds Per Month and/or Aggregate Minimum Rounds Per Year that
+would have been attributable to such Golf Course for such period had such Golf
+Course not been closed during such period, or (ii) pay any portion of the
+Monthly Minimum Rounds Fee and/or Annual Minimum Rounds Fee that would have been
+attributable to such Golf Course for such period had such Golf Course not been
+closed during such period. Notwithstanding anything to the contrary contained
+herein, (A) to the extent not paid in full on or before the Commencement Date,
+User shall pay (or cause to be paid) in full all costs and expenses for
+completing those capital improvements for the Golf Courses (notwithstanding the
+amounts provided for on Exhibit F attached hereto) that have either (1)
+commenced on or before the Commencement Date or (2) been approved by User as of
+the Commencement Date (collectively, the “Approved Capital Improvements”), which
+Approved Capital Improvements are more particularly described on Exhibit F
+attached hereto, promptly following User’s receipt of an invoice for the same,
+and (B) to the extent not complete on or before the date hereof, User shall
+diligently prosecute completion of the Approved Capital Improvements. User
+hereby represents and warrants to Owner that, as of the Commencement Date, User
+paid One Million Eight Hundred Ninety-Two Thousand Eight Hundred Thirty-Nine and
+36/100 Dollars ($1,892,839.36) with respect to the Approved Capital
+Improvements.
+
+
+26
+
+--------------------------------------------------------------------------------
+
+
+
+
+ARTICLE X
+
+INSURANCE
+During the Term, Owner shall, at its own cost and expense, maintain the minimum
+kinds and amounts of insurance described on Exhibit I attached hereto. Such
+insurance shall apply to the ownership, maintenance, use and operations related
+to the Golf Courses and all property located in or on the Golf Courses. All
+policies shall be written with insurers authorized to do business in all States
+where the Golf Courses are located and shall maintain A.M. Best ratings of not
+less than “A-” “VII” or better in the most recent version of Best’s Key Rating
+Guide. In the event that any of the insurance companies’ ratings fall below the
+requirements set forth above, Owner shall have one hundred eighty (180) days
+within which to replace such insurance company with an insurance company that
+qualifies under the requirements set forth above. It is understood that Owner
+may utilize so called Surplus lines companies and will adhere to the standard
+above. In furtherance of the foregoing, Owner shall maintain, with financially
+sound and reputable insurance companies, insurance (subject to customary
+deductibles and retentions) in such amounts and against such risks as are
+reasonable and customarily maintained by similarly situated companies engaged in
+the same or similar businesses operating in the same or similar locations.
+Certificates of insurance, evidencing the insurance coverage required by this
+Article X shall be delivered to User as described on Exhibit I attached hereto.
+The Parties hereby confirm that the amounts and types of insurance that Owner
+has in effect as of the Commencement Date satisfies the requirements of this
+Article X.
+ARTICLE XI
+
+CASUALTY
+11.1    Property Insurance Proceeds. All proceeds payable by reason of any
+property loss or damage to the Golf Courses, or any portion thereof, under any
+property policy of insurance required to be carried hereunder or otherwise
+maintained by Owner shall be paid to Owner or as otherwise agreed between Owner
+and Fee Mortgagee and, subject to the limitations set forth in this Article XI,
+used for the repair of any damage to or restoration or reconstruction of the
+Golf Courses, provided that the Golf Courses are rebuilt in a manner that is
+substantially the same condition as existed immediately prior to the applicable
+casualty or otherwise reasonably satisfactory to Owner. Any excess proceeds of
+insurance remaining after the completion of the restoration or reconstruction of
+the Golf Courses to substantially the same condition as existed immediately
+before the damage or destruction and with materials and workmanship of like kind
+and quality or otherwise to Owner’s reasonable satisfaction shall be paid to
+Owner.
+
+
+27
+
+--------------------------------------------------------------------------------
+
+
+
+
+11.2    Owner’s Obligations Following Casualty
+(a)    Subject to Section 11.2(b) below, in the event of a Casualty Event with
+respect to any individual Golf Course, (i) Owner shall restore such Golf Course
+to substantially the same condition as existed immediately before such damage or
+otherwise in a manner reasonably satisfactory to Owner and (ii) the damage
+caused by the applicable Casualty Event shall not terminate this Agreement;
+provided, however, that if the applicable Casualty Event shall occur not more
+than two (2) years prior to the then-Stated Expiration Date and the cost to
+restore the applicable Golf Course to the condition immediately preceding the
+Casualty Event, as determined by a mutually approved contractor or architect,
+would equal or exceed twenty-five percent (25%) of the fair market value (as
+reasonably determined by the parties) of such Golf Course immediately prior to
+the time of such damage or destruction, then each of Owner and User shall have
+the option, exercisable in such Party’s sole and absolute discretion, to
+terminate this Agreement with respect to such Golf Course, upon written notice
+to the other Party hereto delivered to such other Party within thirty (30) days
+of the determination of the amount of damage and the fair market value (as
+reasonably determined by the parties) of such Golf Course and, if such option is
+exercised by either Owner or User, (i) this Agreement shall terminate with
+respect to such Golf Course and Owner shall not be required to restore such Golf
+Course and any insurance proceeds payable as a result of the damage or
+destruction shall be payable in accordance with Section 11.2(c), and (ii)
+commencing upon the date of such termination, (A) the CES Use Fee shall be
+adjusted in accordance with the CES Use Fee Reduction Amount and (B) the Minimum
+Rounds Per Month and the Minimum Rounds Per Year shall each be adjusted in
+accordance with the Minimum Rounds Reduction Amount (and the Complimentary Golf
+Rounds Fee shall be re-determined in connection therewith). Notwithstanding
+anything to the contrary contained herein, if a Casualty Event occurs (and/or if
+the determination of the amount of damage and/or the thirty (30) day period
+referred to in the preceding sentence is continuing) at a time when User could
+send a Renewal Notice (provided, for this purpose, User shall be permitted to
+send a Renewal Notice under Section 2.3 not more than twenty-four (24) months
+(rather than not more than eighteen (18) months) prior to the then current
+Stated Expiration Date), if User has elected or elects to exercise the same at
+any time following User’s receipt of such notice of termination from Owner,
+neither Owner nor User may terminate this Agreement under this Section 11.2(a).
+(b)    If the cost to restore any individual Golf Course exceeds the amount of
+proceeds received from the insurance required to be carried hereunder, then (i)
+Owner shall not be obligated to restore such Golf Course, and (ii) Owner shall,
+by written notice to User delivered to User within thirty (30) days of the final
+determination of the amount of proceeds received from the insurance required to
+be carried hereunder or otherwise maintained by Owner, elect to either (A)
+restore such Golf Course to substantially the same condition as existed
+immediately before such damage or otherwise in a manner reasonably satisfactory
+to Owner (in which event this Agreement shall remain in full force and effect)
+or (B) terminate this Agreement with respect to such Golf Course (in which event
+(1) this Agreement shall terminate with respect to such Golf Course and any
+insurance proceeds payable as a result of the damage or destruction shall be
+payable in accordance with Section 11.2(c), and (2) commencing upon the date of
+such termination, (x) the CES Use Fee shall be adjusted in accordance with the
+CES Use Fee Reduction Amount and (y) the Minimum Rounds Per Month and the
+Minimum Rounds Per Year shall each be adjusted in accordance with the Minimum
+Rounds
+
+
+28
+
+--------------------------------------------------------------------------------
+
+
+
+
+Reduction Amount (and the Complimentary Golf Rounds Fee shall be re-determined
+in connection therewith)).
+(c)    In the event Owner is not required to, and does not elect to, repair and
+restore any applicable Golf Course, all insurance proceeds shall be paid to and
+retained by Owner free and clear of any claim.
+11.3    No Abatement of Golf Course Use Payments. Except as expressly provided
+in Article IX or this Article XI, this Agreement shall remain in full force and
+effect and User’s obligation to pay each of the Golf Course Use Payments and all
+Additional Charges required by this Agreement shall remain unabated during any
+period following a Casualty Event. Notwithstanding anything to the contrary
+contained herein, for the avoidance of doubt, under no scenario, including,
+without limitation, the termination of this Agreement as a result of a Casualty
+Event or otherwise, shall User be relieved of its obligation to pay the
+Membership Fee before all of the Leases have terminated in accordance with their
+respective terms.
+11.4    Waiver. User waives any statutory rights of termination which may arise
+by reason of any damage or destruction of any applicable Golf Course but such
+waiver shall not affect any contractual rights granted to User under this
+Agreement.
+ARTICLE XII
+
+EMINENT DOMAIN
+12.1    Condemnation. Owner shall promptly give User written notice of the
+actual or threatened Condemnation or any Condemnation proceeding affecting any
+Golf Course of which Owner has knowledge and shall deliver to User copies of any
+and all papers served in connection with the same.
+(a)    Total Taking. If all of any individual Golf Course is subject to a
+permanent Taking, then (i) this Agreement shall automatically terminate with
+respect to such Golf Course as of the day before the date of such Taking, and
+(ii) commencing upon the date of such termination, (A) the CES Use Fee shall be
+adjusted in accordance with the CES Use Fee Reduction Amount and (B) the Minimum
+Rounds Per Month and the Minimum Rounds Per Year shall each be adjusted in
+accordance with the Minimum Rounds Reduction Amount (and the Complimentary Golf
+Rounds Fee shall be re-determined in connection therewith).
+(b)    Partial Taking. If a portion (but not all) of any individual Golf Course
+is subject to a permanent Taking (“Partial Taking”), then (i) this Agreement
+shall remain in effect so long as such Golf Course is not thereby rendered
+Unsuitable for Its Primary Intended Use, and (ii) none of the Golf Course Use
+Payments shall be adjusted; provided, however, that if the applicable Golf
+Course is rendered Unsuitable for Its Primary Intended Use, then (A) this
+Agreement shall terminate with respect to such Golf Course as of the day before
+the date of such Partial Taking, and (B) commencing upon the date of such
+termination, (1) the CES Use Fee shall be adjusted in accordance with the CES
+Use Fee Reduction Amount and (2) the Minimum Rounds Per Month and the Minimum
+
+
+29
+
+--------------------------------------------------------------------------------
+
+
+
+
+Rounds Per Year shall each be adjusted in accordance with the Minimum Rounds
+Reduction Amount (and the Complimentary Golf Rounds Fee shall be re-determined
+in connection therewith).
+(c)    Restoration. If there is a Partial Taking and this Agreement remains in
+full force and effect, the Award shall be paid to Owner. In such event, (i)
+subject to receiving such Award, Owner shall accomplish all necessary
+restoration in accordance with the following sentence (whether or not the amount
+of the Award received by Owner is sufficient), and (ii) none of the Golf Course
+Use Payments shall be adjusted. Owner shall restore the affected Golf Course as
+nearly as reasonably possible under the circumstances to a complete
+architectural unit of the same general character and condition as existed
+immediately prior to the applicable Partial Taking or otherwise reasonably
+satisfactory to Owner (but in any case consistent with the Primary Intended
+Use).
+12.2    Award Distribution. The Award resulting from any Taking or Condemnation
+shall be paid to and retained by Owner free and clear of any claim.
+12.3    Temporary Taking. The taking of any individual Golf Course, or any part
+thereof, shall constitute a Taking by Condemnation only when the use and
+occupancy by the taking authority has continued for longer than one hundred
+eighty (180) consecutive days. During any shorter period, which shall be a
+temporary taking, all the provisions of this Agreement shall remain in full
+force and effect (except that (a) the CES Use Fee shall be adjusted in
+accordance with the CES Use Fee Reduction Amount and (b) the Minimum Rounds Per
+Month and the Minimum Rounds Per Year shall each be adjusted in accordance with
+the Minimum Rounds Reduction Amount (and the Complimentary Golf Rounds Fee shall
+be re-determined in connection therewith), in each case in proportion to the
+duration of such temporary taking) and the Award shall be paid to Owner.
+12.4    No Abatement of Membership Fee. Notwithstanding anything to the contrary
+contained herein, for the avoidance of doubt, under no scenario, including,
+without limitation, the termination of this Agreement as a result of a Taking,
+Partial Taking or otherwise, shall User be relieved of its obligation to pay the
+Membership Fee before all of the Leases have terminated in accordance with their
+respective terms.
+ARTICLE XIII
+
+DEFAULTS & REMEDIES
+13.1    User Events of Default. Any one or more of the following shall
+constitute a “User Event of Default”:
+(a)    User shall fail to pay any installment of any of the Golf Course Use
+Payments when due and such failure is not cured within ten (10) days after
+written notice from Owner of User’s failure to pay such installment when due
+(and such notice of failure from Owner may be given any time after such
+installment payment is one (1) day late);
+(b)    User shall fail to pay any Additional Charge within ten (10) days after
+written notice from Owner of User’s failure to pay such Additional Charge when
+due (and such notice of failure from Owner may be given any time after such
+Additional Charge payment is one (1) day late);
+
+
+30
+
+--------------------------------------------------------------------------------
+
+
+
+
+(c)    User shall:
+(i)    file a petition in bankruptcy or a petition to take advantage of any
+insolvency law or statute under Federal law, specifically including Title 11,
+United States Code, §§ 101-1532, or analogous state law;
+(ii)    make an assignment for the benefit of its creditors; or
+(iii)    consent to the appointment of a receiver of itself or of the whole or
+substantially all of its property;
+(d)    User shall be adjudicated as bankrupt or a court of competent
+jurisdiction shall enter an order or decree appointing, without the consent of
+User, a receiver of User or of all or substantially all of User’s property, or
+approving a petition filed against User seeking reorganization or arrangement of
+User under Federal law, specifically including Title 11, United States Code,
+§§ 101-1532, or analogous state law, and such judgment, order or decree shall
+not be vacated or set aside or stayed within sixty (60) days from the date of
+the entry thereof;
+(e)    entry of an order or decree liquidating or dissolving User, provided that
+the same shall not constitute an User Event of Default if such order or decree
+shall be vacated, set aside or stayed within ninety (90) days from the date of
+the entry thereof;
+(f)    a transfer of User’s interest in this Agreement (including pursuant to a
+Change of Control) shall have occurred without the consent of Owner to the
+extent such consent is required under Article XVII or User is otherwise in
+default of the provisions set forth in Section 17.1 below;
+(g)    User shall fail to observe or perform any other term, covenant or
+condition of this Agreement and such failure is not cured within thirty (30)
+days after written notice thereof from Owner, provided, however, if such failure
+cannot reasonably be cured within such thirty (30) day period and User shall
+have commenced to cure such failure within such thirty (30) day period and
+thereafter diligently proceeds to cure the same, then such thirty (30) day
+period shall be extended for such time as is reasonably necessary for User in
+the exercise of due diligence to cure such failure, provided that, with respect
+to any failure to perform (i) that is still continuing on or after the first day
+of the sixth (6th) Usage Year such cure period shall not extend beyond the later
+of such first day of the sixth (6th) Usage Year or one hundred eighty (180) days
+in the aggregate, and (ii) that is first arising on or after the first day of
+the sixth (6th) Usage Year, such cure period shall not exceed one hundred eighty
+(180) days in the aggregate; provided, further, however, that no User Event of
+Default under this clause (g) or under clause (h) below shall be deemed to exist
+under this Agreement during any time the curing thereof is prevented by an
+Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay,
+User remedies the default within the time periods otherwise required hereunder;
+and
+(h)    the occurrence of any Tenant Event of Default under the Regional Lease.
+13.2    Owner Remedies. Upon the occurrence and during the continuance of an
+User Event of Default, Owner may, subject to the terms of Section 13.4 below, do
+any one or more of
+
+
+31
+
+--------------------------------------------------------------------------------
+
+
+
+
+the following: (a) terminate this Agreement by giving User no less than ten (10)
+days’ notice of such termination and the Term shall terminate and all rights and
+obligations of User under this Agreement shall cease, subject to any provisions
+that expressly survive the Expiration Date, (b) seek damages as provided in
+Section 13.4 hereof, or (c) except to the extent expressly otherwise provided
+under this Agreement, exercise any other right or remedy hereunder, at law or in
+equity available to Owner as a result of any User Event of Default. User shall
+pay as Additional Charges all costs and expenses incurred by or on behalf of
+Owner, including reasonable and documented attorneys’ fees and expenses, as a
+result of any User Event of Default hereunder.
+13.3    Owner Events of Default; User Remedies.
+(a)    An “Owner Event of Default” shall have occurred if Owner shall fail to
+observe or perform any term, covenant or condition of this Agreement, which
+failure materially and adversely affects User, and such failure is not cured
+within thirty (30) days after written notice thereof from User, provided,
+however, if such failure cannot reasonably be cured within such thirty (30) day
+period and Owner shall have commenced to cure such failure within such thirty
+(30) day period and thereafter diligently proceeds to cure the same, then such
+thirty (30) day period shall be extended for such time as is reasonably
+necessary for Owner in the exercise of due diligence to cure such failure,
+provided that, with respect to any failure to perform (i) that is still
+continuing on or after the first day of the sixth (6th) Usage Year such cure
+period shall not extend beyond the later of such first day of the sixth (6th)
+Usage Year or one hundred eighty (180) days in the aggregate, and (ii) that is
+first arising on or after the first day of the sixth (6th) Usage Year, such cure
+period shall not exceed one hundred eighty (180) days in the aggregate;
+provided, further, however, that no Owner Event of Default under this clause (a)
+shall be deemed to exist under this Agreement during any time the curing thereof
+is prevented by an Unavoidable Delay, provided that upon the cessation of the
+Unavoidable Delay, Owner remedies the default within the time periods otherwise
+required hereunder.
+(b)    Upon the occurrence and during the continuance of an Owner Event of
+Default, User may, except to the extent expressly otherwise provided in this
+Agreement, exercise any right or remedy hereunder, at law or in equity available
+to User as a result of any Owner Event of Default, including, without
+limitation, seeking the remedy of specific performance.
+13.4    Damages. If Owner elects to terminate this Agreement in writing upon an
+User Event of Default during the Term, User shall forthwith (x) pay to Owner all
+Golf Course Use Payments due and payable under this Agreement to and including
+the date of such termination (together with interest thereon at the Overdue Rate
+from the date the applicable amount was due), and (y) pay on demand all damages
+to which Owner shall be entitled at law or in equity, which, for the avoidance
+of doubt, shall include the aggregate amounts of the Membership Fee and the CES
+Use Fee that would have been due and payable under this Agreement throughout the
+Term (including all Renewal Terms) but for such termination; provided, however,
+Owner’s damages with regard to unpaid Golf Course Use Payments from and after
+the date of termination shall equal, as liquidated and agreed current damages in
+respect thereof, the sum of: (A) the worth at the time of award of the amount by
+which the unpaid Golf Course Use Payments (excluding the portion of the
+Complimentary Golf Rounds Fee attributable to the aggregate of the Annual Other
+Sponsored
+
+
+32
+
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+
+
+
+
+
+
+
+
+33
+
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+
+
+
+
+
+
+
+
+34
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+
+
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+
+
+
+
+35
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+
+
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+
+
+
+
+
+36
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+
+
+
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+
+
+
+
+37
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+
+
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+
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+
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+
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+
+
+
+
+
+
+
+
+39
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+
+
+
+
+
+
+
+
+40
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+
+
+
+
+
+
+
+
+41
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+--------------------------------------------------------------------------------
+
+
+
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+
+
+
+
+42
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+--------------------------------------------------------------------------------
+
+
+
+
+
+
+
+
+43
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+--------------------------------------------------------------------------------
+
+
+
+
+
+
+
+
+44
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+
+
+
+
+
+
+
+
+45
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+
+
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+
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+
+
+46
+
+--------------------------------------------------------------------------------
+
+
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+
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+
+
+
+
+
+
+
+
+48
+
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+
+
+
+
+Rounds Fees for all of the Golf Courses) that (if this Agreement had not been
+terminated) would have been payable hereunder after termination until the time
+of award exceeds the amount of such Golf Course Use Payments (excluding the
+portion of the Complimentary Golf Rounds Fee attributable to the aggregate of
+the Annual Other Sponsored Rounds Fees for all of the Golf Courses) loss that
+User proves could have been reasonably avoided; plus (B) (x) the Golf Course Use
+Payments (excluding the portion of the Complimentary Golf Rounds Fee
+attributable to the aggregate of the Annual Other Sponsored Rounds Fees for all
+of the Golf Courses) which (if this Agreement had not been terminated) would
+have been payable hereunder from the time of award until the then Stated
+Expiration Date, discounted to present value by applying a discount rate equal
+to the discount rate of the Federal Reserve Bank of New York at the time of
+award, plus one percent (1%), less (y) the Golf Course Use Payments (excluding
+the portion of the Complimentary Golf Rounds Fee attributable to the aggregate
+of the Annual Other Sponsored Rounds Fees for all of the Golf Courses) loss from
+the time of the award until the then Stated Expiration Date that User proves
+could be reasonably avoided, discounted to present value by applying a discount
+rate equal to the discount rate of the Federal Reserve Bank of New York at the
+time of award, plus one percent (1%) (it being understood the foregoing
+calculation of damages for unpaid Golf Course Use Payments applies only to the
+amount of unpaid Golf Course Use Payments damages owed to Owner pursuant to
+User’s obligation to pay Golf Course Use Payments hereunder and does not
+prohibit or otherwise shall not limit Owner from seeking damages for any
+indemnification or any other obligations of User hereunder, with all such rights
+of Owner reserved). As used in clause (A), the “worth at the time of award”
+shall be computed by allowing interest at the Overdue Rate from the date the
+applicable amount was due.
+13.5    Application of Funds. Any payments received by Owner under any of the
+provisions of this Agreement during the existence or continuance of any User
+Event of Default which are made to Owner rather than User due to the existence
+of an User Event of Default shall be applied to User’s obligations in the order
+which Owner may reasonably determine or as may be prescribed by applicable Legal
+Requirements.
+13.6    Owner’s Right to Cure User’s Default. If User shall fail to make any
+payment or to perform any act required to be made or performed hereunder when
+due, in all cases, after the expiration of any cure period provided for herein,
+Owner, without waiving or releasing any obligation or default, may, but shall be
+under no obligation to, make such payment or perform such act for the account
+and at the expense of User. All sums so paid by Owner and all costs and
+expenses, including reasonable attorneys’ fees and expenses, so incurred,
+together with interest thereon at the Overdue Rate from the date on which such
+sums or expenses are paid or incurred by Owner, shall be paid by User to Owner
+on demand as an Additional Charge.
+13.7    Reduction of Minimum Rounds Per Month and Minimum Rounds Per Year.
+Notwithstanding anything in this Agreement to the contrary, if Owner breaches
+its obligations under Schedule 1 to Exhibit B attached hereto to reserve (i.e.,
+set aside) tee times for User’s (or User’s Affiliates’) guests’ use, then the
+applicable Minimum Rounds Per Month and the applicable Minimum Rounds Per Year
+shall each be reduced by the applicable number of tee times which Owner fails to
+reserve (i.e., set aside) for User’s (or User’s Affiliates’) guests’ use in
+accordance with Schedule 1 to Exhibit B attached hereto (and the Complimentary
+Golf Rounds Fee shall be re-determined in connection therewith).
+13.8    Miscellaneous.
+(a)    Suit or suits for the recovery of damages, or for a sum equal to any
+installment or installments of Golf Course Use Payments payable hereunder, or
+for any other sums payable by User to Owner pursuant to this Agreement, may be
+brought by Owner from time to time at Owner’s election, and nothing herein
+contained shall be deemed to require Owner to await the date whereon this
+Agreement and the Term would have expired by limitation had there been no User
+Event of Default or termination.
+(b)    No failure by either Party to insist upon the strict performance of any
+agreement, term, covenant or condition of this Agreement or to exercise any
+right or remedy consequent upon a breach thereof, and no acceptance by Owner of
+full or partial payment of any Golf Course Use Payments during the continuance
+of any such breach, shall constitute a waiver of any such breach or of such
+agreement, term, covenant or condition. No agreement, term, covenant or
+condition of this Agreement to be performed or complied with by either Party,
+and no breach thereof, shall be or be deemed to be waived, altered or modified
+except by a written instrument executed by the Parties. No waiver of any breach
+shall affect or alter this Agreement, but each and every agreement, term,
+covenant and condition of this Agreement shall continue in full force and effect
+with respect to any other then existing or subsequent breach thereof. In the
+event Owner claims in good faith that User has breached any of the agreements,
+terms, covenants or conditions contained in this Agreement, Owner shall be
+entitled to seek to enjoin such breach or threatened breach and shall have the
+right to invoke any rights and remedies allowed at law or in equity or by
+statute or otherwise as though summary proceedings or other remedies were not
+provided for in this Agreement.
+(c)    Except to the extent otherwise expressly provided in this Agreement, each
+right and remedy of a Party provided for in this Agreement shall be cumulative
+and shall be in addition to every other right or remedy provided for in this
+Agreement or now or hereafter existing at law or in equity (subject to the
+limitations on the calculation of unpaid Golf Course Use Payments set forth in
+Section 13.4 above).
+(d)    Nothing contained in this Article XIII or otherwise shall vitiate or
+limit User’s or Owner’s obligation to pay the other Party’s attorneys’ fees as
+and to the extent provided in Article XXV hereof, or any indemnification
+obligations under any express indemnity made by User of Owner or of any Owner
+Indemnified Parties or by Owner of User or of any User Indemnified Parties as
+contained in this Agreement.
+ARTICLE XIV
+
+LICENSING EVENTS
+14.1    Owner Licensing Event. If there shall occur an Owner Licensing Event and
+any aspect of such Owner Licensing Event is attributable to a member of the
+Owner Subject Group, then User shall notify Owner as promptly as practicable
+after becoming aware of such Owner Licensing Event (but in no event later than
+twenty (20) days after becoming aware of such Owner Licensing Event). In such
+event, Owner shall, and shall use commercially reasonable efforts to cause the
+other members of the Owner Subject Group to, use commercially reasonable efforts
+to assist User and its Affiliates in resolving such Owner Licensing Event within
+the time period required by the applicable Gaming Authorities by submitting to
+investigation by the relevant Gaming Authorities and cooperating with any
+reasonable requests made by such Gaming Authorities (including filing requested
+forms and delivering information to the Gaming Authorities). If, despite these
+efforts, such Owner Licensing Event cannot be resolved to the satisfaction of
+the applicable Gaming Authorities within the time period required by such Gaming
+Authorities, User shall have the right, at its election in its sole discretion,
+either to (a) terminate this Agreement or (b) cause this Agreement to
+temporarily cease to be in force or effect, until such time, if any, as the
+Owner Licensing Event is resolved to the satisfaction of the applicable Gaming
+Authorities and User in its sole discretion, upon no less than ninety (90) days’
+written notice thereof to Owner following an Owner Licensing Event which is not
+cured within the period required by the applicable Gaming Authorities (or such
+lesser time as required by any applicable Gaming Authority).
+14.2    User Licensing Event. If there shall occur a User Licensing Event and
+any aspect of such User Licensing Event is attributable to a member of the User
+Subject Group, then Owner shall notify User as promptly as practicable after
+becoming aware of such User Licensing Event (but in no event later than twenty
+(20) days after becoming aware of such User Licensing Event). In such event,
+User shall, and shall use commercially reasonable efforts to cause the other
+members of the User Subject Group to, use commercially reasonable efforts to
+assist Owner and its Affiliates in resolving such User Licensing Event within
+the time period required by the applicable Gaming Authorities by submitting to
+investigation by the relevant Gaming Authorities and cooperating with any
+reasonable requests made by such Gaming Authorities (including filing requested
+forms and delivering information to the Gaming Authorities). If, despite these
+efforts, such User Licensing Event cannot be resolved to the satisfaction of the
+applicable Gaming Authorities within the time period required by such Gaming
+Authorities, Owner shall have the right, at its election in its sole discretion,
+either to (a) terminate this Agreement or (b) cause this Agreement to
+temporarily cease to be in force or effect, until such time, if any, as the User
+Licensing Event is resolved to the satisfaction of the applicable Gaming
+Authorities and Owner in its sole discretion, upon no less than ninety (90)
+days’ written notice thereof to User following a User Licensing Event which is
+not cured within the period required by the applicable Gaming Authorities (or
+such lesser time as required by any applicable Gaming Authority).
+ARTICLE XV
+
+INDEMNIFICATION
+In addition to the other indemnities contained herein, and notwithstanding the
+existence of any insurance carried by or for the benefit of Owner or User, and
+without regard to the policy limits of any such insurance, (a) User shall
+protect, indemnify, save harmless and defend Owner and its principals, partners,
+officers, members, directors, shareholders, employees, managers, agents and
+servants (collectively, the “Owner Indemnified Parties”; each individually, an
+“Owner Indemnified Party”), from and against all liabilities, obligations,
+claims, damages, penalties, causes of action, suits, criminal or civil actions
+or similar proceedings, costs and expenses, including reasonable documented
+attorneys’, consultants’ and experts’ fees and expenses, imposed upon or
+incurred by or asserted against any Owner Indemnified Party (excluding any
+indirect, special, punitive or consequential damages as provided in Section
+27.3) by reason of any gross negligence or willful misconduct of any User
+Indemnified Party (as hereinafter defined); and (b) Owner shall protect,
+indemnify, save harmless and defend User and its principals, partners, officers,
+members, directors, shareholders, employees, managers, agents and servants
+(collectively, the “User Indemnified Parties”; each individually, a “User
+Indemnified Party”) from and against all liabilities, obligations, claims,
+damages, penalties, causes of action, suits, criminal or civil actions or
+similar proceedings, costs and expenses, including reasonable documented
+attorneys’, consultants’ and experts’ fees and expenses, imposed upon or
+incurred by or asserted against any User Indemnified Party (excluding any
+indirect, special, punitive or consequential damages as provided in Section
+27.3) by reason of any gross negligence or willful misconduct of any Owner
+Indemnified Party. Any amounts which become payable by Owner or User under this
+Article XV shall be paid within ten (10) days after liability therefor is
+determined by a final non appealable judgment or settlement or other agreement
+of the Parties, and if not timely paid shall bear interest at the Overdue Rate
+from the date of such determination to the date of payment. Owner, with its
+counsel and at its sole cost and expense, shall contest, resist and defend any
+such claim, action or proceeding asserted or instituted against the User
+Indemnified Parties; and User, with its counsel and at its sole cost and
+expense, shall contest, resist and defend any such claim, action or proceeding
+asserted or instituted against the Owner Indemnified Parties. For purposes of
+this Article XV, any acts or omissions of Owner, or by employees, agents,
+assignees, contractors, subcontractors or others acting for or on behalf of
+Owner, shall be strictly attributable to Owner; and any acts or omissions of
+User, or by employees, agents, assignees, contractors, subcontractors or others
+acting for or on behalf of User, shall be strictly attributable to User.
+ARTICLE XVI
+
+TRANSFERS BY OWNER
+16.1    Transfers Generally. Owner may sell, assign, transfer or convey, without
+User’s consent, all of the Golf Courses, any individual Golf Course or any
+portion of any Golf Course, or any interest therein. If the subject transaction
+involves a sale, assignment, transfer or conveyance of all of the Golf Courses,
+then this Agreement shall be assigned to the applicable transferee such that
+such transferee shall become successor Owner as if an original party to this
+Agreement. If the subject transaction involves a sale, assignment, transfer or
+conveyance of any individual Golf Course (or several Golf Courses but not all of
+the Golf Courses), then (a) subject to Section 16.2 below, this Agreement shall
+remain in full force and effect with respect to the Golf Course(s) not
+transferred to the applicable transferee, and (b) a Severance Agreement with
+such transferee shall be entered into with respect to the Golf Course(s)
+transferred to the applicable transferee as described in Section 16.2 below. If
+the subject transaction involves a sale, assignment, transfer or conveyance of a
+portion (but not all) of any individual Golf Course, then (i) this Agreement
+shall remain in effect so long as such Golf Course is not thereby rendered
+Unsuitable for Its Primary Intended Use, and (ii) none of the Golf Course Use
+Payments shall be adjusted; provided, however, that if the applicable Golf
+Course is rendered Unsuitable for Its Primary Intended Use, then (A) this
+Agreement shall terminate with respect to such Golf Course as of the closing of
+such transaction, and (B) commencing upon the date of such termination, (1) the
+CES Use Fee shall be adjusted in accordance with the CES Use Fee Reduction
+Amount and (2) the Minimum Rounds Per Month and the Minimum Rounds Per Year
+shall each be adjusted in accordance with the Minimum Rounds Reduction Amount
+(and the Complimentary Golf Rounds Fee shall be re-determined in connection
+therewith). If Owner (including any successor Owner) shall convey all of the
+Golf Courses, any individual Golf Course or any portion of any Golf Course, then
+Owner shall be released from all future liabilities and obligations of Owner
+under this Agreement with respect to the Golf Course(s) or the applicable
+portion of a Golf Course (provided such conveyance of such portion of the Golf
+Course does not affect the Primary Intended Use of the remaining portion of such
+Golf Course as an eighteen (18) hole golf course) transferred to the applicable
+transferee upon the later of (x) such conveyance and (y) the applicable
+transferee’s (A) express assumption of all liabilities and obligations of Owner
+under this Agreement relating to such transferred Golf Course(s) arising after
+such conveyance and (B) in the event at least one (1), but less than all, of the
+Golf Courses are so conveyed, execution of a Severance Agreement, and all
+liabilities and obligations of Owner hereunder relating to such transferred Golf
+Course(s) shall thereafter be binding upon such transferee. Notwithstanding
+anything to the contrary herein, Owner shall not sell, assign, transfer or
+convey any of the Golf Courses, or assign this Agreement, to (1) a Tenant
+Prohibited Person (as defined in the Regional Lease) or (2) any Person that is
+associated with a Person who has been found “unsuitable”, denied a Gaming
+License or otherwise precluded from participation in the gaming industry by any
+Gaming Authority, where such association may adversely affect any of User’s or
+its Affiliates’ Gaming Licenses or User’s or its Affiliates’ then-current
+standing with any Gaming Authority. Any assignment or transfer under this
+Article XVI shall be subject to all applicable Legal Requirements, and no such
+assignment or transfer shall be effective until any applicable approvals, if
+applicable, are obtained.
+16.2    Severance Agreements. In the event Owner desires to sell or otherwise
+transfer at least one (1), but less than all, of the Golf Courses (in whole but
+not in part) to a third party or to an affiliate of Owner, then the Parties
+shall enter into a Severance Agreement with respect to such Golf Course, in
+accordance with the following provisions:
+(a)    Owner shall give User not less than fifteen (15) days’ advance written
+notice of a Severance Agreement, and User shall thereafter, within said fifteen
+(15)-day period (or such longer period of time as Owner may require; it being
+understood that Owner may delay or cancel a Severance Agreement in the event
+that the underlying sale or transfer of a Golf Course is delayed or cancelled
+for any reason), execute, acknowledge and deliver a Severance Agreement to the
+new owner of the applicable Golf Course for the remaining Term and on
+substantially the same terms and conditions as this Agreement (except for
+appropriate adjustments (including to Exhibits and Schedules), including such
+adjustments as are described in this Article XVI), and in any case no less
+favorable to User than the terms and conditions of this Agreement.
+(b)    In the event a Severance Agreement is entered into, Owner may, before the
+Severance Agreement is executed, elect, in its sole discretion, for the
+Membership Fee that was in effect under this Agreement immediately prior to the
+effective date of such Severance Agreement to remain in full force and effect
+under this Agreement (a “Membership Fee Retainage Election”). If Owner timely
+makes a Membership Fee Retainage Election (which election may be included in the
+notice provided pursuant to Section 16.2(a) above), then the Severance Agreement
+shall provide that no amount is payable under such Severance Agreement in
+respect of any Membership Fee and the Membership Fee payable under this
+Agreement shall not be reduced. If Owner does not timely make a Membership Fee
+Retainage Election, then (i) the Membership Fee payable under the Severance
+Agreement at the time of the commencement of such Severance Agreement shall be
+equal to the amount of the Membership Fee Reduction Amount for the applicable
+Golf Course to be subject to such Severance Agreement, and (ii) correspondingly,
+upon the effective date of the Severance Agreement, the Membership Fee payable
+hereunder shall be reduced by such Membership Fee Reduction Amount.
+(c)    The CES Use Fee payable under the Severance Agreement at the time of the
+commencement of such Severance Agreement shall be equal to the amount of the CES
+Use Fee Reduction Amount for the applicable Golf Course to be subject to such
+Severance Agreement. Correspondingly, upon the effective date of the Severance
+Agreement, the CES Use Fee payable hereunder shall be reduced by such CES Use
+Fee Reduction Amount.
+(d)    The Minimum Rounds Per Month and Minimum Rounds Per Year under the
+Severance Agreement at the time of the commencement of such Severance Agreement
+shall be determined in accordance with the Minimum Rounds Reduction Amount for
+the applicable Golf Course to be subject to such Severance Agreement (and the
+Complimentary Golf Rounds Fee payable under such Severance Agreement shall be
+determined in connection therewith). Correspondingly, upon the effective date of
+the Severance Agreement, the Minimum Rounds Per Month and Minimum Rounds Per
+Year hereunder shall each be adjusted in accordance with such Minimum Rounds
+Reduction Amount (and the Complimentary Golf Rounds Fee payable hereunder shall
+be re-determined in connection therewith).
+(e)    This Agreement shall automatically terminate with respect to the
+applicable Golf Course that is subject to such Severance Agreement as of the
+effective date of such Severance Agreement.
+(f)    User shall take such actions and execute and deliver such documents,
+including, without limitation, amended Memorandum(s) of Agreement and, if
+requested by Owner, an amendment to this Agreement, as are reasonably necessary
+and appropriate to effectuate fully the provisions and intent of this Article
+XVI, and as Owner may reasonably request to evidence such removal of the
+applicable Golf Course from this Agreement.
+(g)    All reasonable, documented out-of-pocket costs and expenses actually
+incurred relating to a Severance Agreement (including reasonable, documented
+attorneys’ fees and other reasonable, documented out-of-pocket costs incurred by
+User for outside counsel, if any) shall (i) be borne by Owner and not User and
+(ii) be reimbursed to User by Owner within ten (10) days after Owner’s receipt
+of written demand therefor from User.
+(h)    At the option of such new owner, a Severance Agreement may provide that
+the new owner of the applicable Golf Course shall have the right to terminate
+such Severance Agreement on or after the date that is five (5) years after the
+commencement of such Severance Agreement (the date on which such Severance
+Agreement terminates pursuant to such new owner’s exercise of such termination
+right, the “Severance Agreement Termination Date”), in which event such
+Severance Agreement and the obligations of User to pay the Golf Course Use
+Payments payable thereunder shall continue through (and including) the Severance
+Agreement Termination Date.
+16.3    No Release of Owner’s Obligations; Exception. The liability of Owner and
+any immediate and remote successor in interest of Owner (by assignment or
+otherwise), and the due performance of the obligations of this Agreement on
+Owner’s part to be performed or observed, shall not in any way be discharged,
+released or impaired by any (i) stipulation which extends the time within which
+an obligation under this Agreement is to be performed, (ii) waiver of the
+performance of an obligation required under this Agreement that is not entered
+into by User in a writing executed by User and expressly stated to be for the
+benefit of Owner or such successor, or (iii) failure to enforce any of the
+obligations set forth in this Agreement, provided that Owner shall not be
+responsible for any additional obligations or liability arising as the result of
+any modification or amendment of this Agreement by User and any assignee of
+Owner that is not an Affiliate of Owner.
+ARTICLE XVII
+TRANSFERS BY USER
+17.1    Assignment. Other than as expressly provided herein (including the
+permitted assignments described in this Article XVII), User shall not, without
+Owner’s prior written consent (which, except as specifically set forth herein,
+may be withheld in Owner’s sole and absolute discretion), voluntarily or by
+operation of law assign (which term includes any transfer, sale, encumbering,
+pledge or other transfer or hypothecation), directly or indirectly, in whole or
+in part, this Agreement. Any Change of Control of User (or, subject to Section
+17.2 below, any transfer of direct or indirect interests in User that results in
+a Change of Control) shall constitute an assignment of User’s interest in this
+Agreement within the meaning of this Article XVII and the provisions requiring
+consent contained herein shall apply thereto. Any assignment or transfer under
+this Article XVII shall be subject to all applicable Legal Requirements, and no
+such assignment or transfer shall be effective until any applicable approvals,
+if applicable, are obtained.
+17.2    Permitted Assignments and Transfers. Notwithstanding the foregoing or
+anything to the contrary contained herein, (i) the assignments, transfers and
+other actions or transactions (excluding Subleases (as such term is defined in
+the Regional Lease)) permitted under Section 22.2 of the Regional Lease shall be
+permitted hereunder, and (ii) this Agreement may be assigned or transferred by
+User to the Person(s) to whom the Regional Tenant assigns or transfers its
+interest in the Regional Lease in accordance with the terms thereof. Further,
+any Permitted User Lender shall have the same right to receive any notice of a
+default by User under this Agreement or termination of this Agreement and the
+same right to cure such default or act or omission which gave rise to such
+default as such Permitted User Lender would have with respect to a default by
+the Regional Tenant under the Regional Lease or termination of the Regional
+Lease as set forth in Article XVII of the Regional Lease, as if such provisions
+were set forth in this Agreement mutatis mutandis.
+17.3    Costs. User shall reimburse Owner for Owner’s reasonable out-of-pocket
+costs and expenses actually incurred in conjunction with the processing and
+documentation of any assignment or transfer of this Agreement by User, including
+reasonable documented attorneys’, architects’, engineers’ or other consultants’
+fees whether or not such assignment or transfer is actually consummated.
+17.4    No Release of User’s Obligations; Exception. No assignment shall relieve
+User of its obligation to pay each of the Golf Course Use Payments and to
+perform all of the other obligations to be performed by User hereunder. The
+liability of User and any immediate and remote successor in interest of User (by
+assignment or otherwise), and the due performance of the obligations of this
+Agreement on User’s part to be performed or observed, shall not in any way be
+discharged, released or impaired by any (i) stipulation which extends the time
+within which an obligation under this Agreement is to be performed, (ii) waiver
+of the performance of an obligation required under this Agreement that is not
+entered into by Owner in a writing executed by Owner and expressly stated to be
+for the benefit of User or such successor, or (iii) failure to enforce any of
+the obligations set forth in this Agreement, provided that User shall not be
+responsible for any additional obligations or liability arising as the result of
+any modification or amendment of this Agreement by Owner and any assignee of
+User that is not an Affiliate of User.
+17.5    Merger of CEOC. The Parties acknowledge that, immediately following the
+execution of this Agreement on the Commencement Date, Caesars Entertainment
+Operating Company, Inc., a Delaware corporation, merged into CEOC, LLC, a
+Delaware limited liability company. Notwithstanding anything herein to the
+contrary, Owner consents to such merger.
+17.6    Merger of CEC. The Parties acknowledge that: (i) on or before the Fifth
+Amendment Date, CEC caused (a) in a series of steps, CEOC to be transferred from
+CEC to Caesars Resort Collection, LLC, a Delaware limited liability company and
+a wholly-owned indirect subsidiary of CEC, and (b) the Las Vegas Restructuring
+(as defined in the Regional Lease) to be completed; and (ii) contemporaneously
+with the Fifth Amendment Date, (a) Colt Merger Sub, Inc., a Delaware corporation
+and a wholly owned subsidiary of ERI, merged with and into CEC, with CEC
+surviving the merger as a wholly owned subsidiary of ERI, (b) ERI was renamed
+Caesars Entertainment, Inc. and converted to a Delaware corporation and (c) CEC
+was renamed Caesars Holdings, Inc.. Notwithstanding anything herein to the
+contrary, Owner consents to, and waives all notice requirements with respect to,
+such transfer, restructuring, renaming, conversion and merger.
+ARTICLE XVIII
+
+ESTOPPEL CERTIFICATES
+Each of Owner and User shall, at any time and from time to time upon receipt of
+not less than ten (10) Business Days’ prior written request from the other
+Party, furnish a certificate (an “Estoppel Certificate”) certifying (i) that
+this Agreement is unmodified and in full force and effect, or that this
+Agreement is in full force and effect and, if applicable, setting forth any
+modifications; (ii) each of the Golf Course Use Payments and Additional Charges
+payable hereunder and the dates to which each of the Golf Course Use Payments
+and Additional Charges payable have been paid; (iii) that the address for
+notices to be sent to the Party furnishing such Estoppel Certificate is as set
+forth in this Agreement (or, if such address for notices has changed, the
+correct address for notices to such Party); (iv) whether or not, to its actual
+knowledge, such Party or the other Party is in default in the performance of any
+covenant, agreement or condition contained in this Agreement (together with
+back-up calculations and information reasonably necessary to support such
+determination) and, if so, specifying each such default of which such Party may
+have knowledge; and (v) responses to such other questions or statements of fact
+as such other Party may reasonably request. Any such Estoppel Certificate may be
+relied upon by the receiving Party and any current or prospective Fee Mortgagee
+(and their successors and assigns) or purchaser of one or more Golf Courses or
+any portion of a Golf Course, as applicable.
+ARTICLE XIX
+NO WAIVER
+No delay, omission or failure by Owner to insist upon the strict performance of
+any term hereof or to exercise any right, power or remedy hereunder and no
+acceptance of full or partial payment of any Golf Course Use Payments during the
+continuance of any default or User Event of Default shall impair any such right
+or constitute a waiver of any such breach or of any such term. No waiver of any
+breach shall affect or alter this Agreement, which shall continue in full force
+and effect with respect to any other then existing or subsequent breach.
+ARTICLE XX
+
+REMEDIES CUMULATIVE
+To the extent permitted by law, each legal, equitable or contractual right,
+power and remedy of Owner now or hereafter provided either in this Agreement or
+by statute or otherwise shall be cumulative and concurrent and shall be in
+addition to every other right, power and remedy and the exercise or beginning of
+the exercise by Owner of any one or more of such rights, powers and remedies
+shall not preclude the simultaneous or subsequent exercise by Owner of any or
+all of such other rights, powers and remedies.
+ARTICLE XXI
+
+ACCEPTANCE OF SURRENDER
+No surrender to Owner of this Agreement or of the Golf Courses or any part
+thereof, or of any interest therein, shall be valid or effective unless agreed
+to and accepted in writing by Owner, and no act by Owner or any representative
+or agent of Owner, other than such written acceptance by Owner, shall constitute
+an acceptance of any such surrender.
+ARTICLE XXII
+OWNER FINANCING
+Owner may from time to time, directly or indirectly, create or otherwise cause
+to exist any Fee Mortgage upon the Golf Courses or any portion thereof or
+interest therein (including direct or indirect interests in Owner which are
+pledged pursuant to a mezzanine loan or other financing arrangement). This
+Agreement is and at all times shall be subject and subordinate to any Existing
+Fee Mortgage and any other Fee Mortgage which may hereafter affect the Golf
+Courses or any portion thereof or interest therein and in each case to all
+renewals, modifications, consolidations, replacements, restatements and
+extensions thereof or any parts or portions thereof. If, in connection with
+obtaining any Fee Mortgage or entering into any agreement relating thereto,
+Owner shall request in writing (a) reasonable cooperation from User or (b)
+reasonable amendments or modifications to this Agreement, in each case required
+to comply with any reasonable request made by a Fee Mortgagee, User shall
+reasonably cooperate with such request, so long as (i) no default in any
+material respect by Owner beyond applicable cure periods is continuing, (ii) all
+reasonable documented out-of-pocket costs and expenses incurred by User in
+connection with such cooperation, including, but not limited to, its reasonable
+documented attorneys’ fees, shall be paid by Owner and (iii) any requested
+action, including any amendments or modifications of this Agreement, shall not
+(A) increase User’s monetary obligations under this Agreement by more than a de
+minimis extent, or increase User’s non-monetary obligations under this Agreement
+in any material respect, or decrease Owner’s obligations under this Agreement in
+any material respect, (B) diminish User’s rights under this Agreement in any
+material respect, (C) adversely impact the value of the Golf Courses by more
+than a de minimis extent or otherwise have a more than de minimis adverse effect
+on the Golf Courses, User or Owner, or (D) result in a default under any
+Permitted User Security Instrument.
+ARTICLE XXIII
+
+INTENTIONALLY OMITTED
+
+
+ARTICLE XXIII
+NOTICES
+Any notice, request, demand, consent, approval or other communication required
+or permitted to be given by either Party hereunder to the other Party shall be
+in writing and shall be sent by registered or certified mail, postage prepaid
+and return receipt requested, by hand delivery or express courier service, by
+email transmission or by an overnight express service to the following address:
+To Owner:
+c/o VICI Golf LLC
+535 Madison Avenue, 20th Floor
+New York, NY 10022
+Attention: General Counsel
+Email: corplaw@viciproperties.com
+
+
+To User:
+Caesars Enterprise Services, LLC and CEOC, LLC
+c/o Caesars Entertainment, Inc.
+100 West Liberty Street, Suite 1150
+Reno, NV 89501
+Attention: General Counsel
+Email: equatmann@eldoradoresorts.com
+or to such other address as either Party may hereafter designate. Notice shall
+be deemed to have been given on the date of delivery if such delivery is made on
+a Business Day, or if not, on the first Business Day after delivery. If delivery
+is refused, Notice shall be deemed to have been given on the date delivery was
+first attempted. Notice sent by email shall be deemed given only upon an
+independent, non-automated confirmation from the recipient acknowledging
+receipt.
+ARTICLE XXV
+
+ATTORNEYS’ FEES
+If Owner or User brings an action or other proceeding against the other to
+enforce or interpret any of the terms, covenants or conditions hereof or any
+instrument executed pursuant to this Agreement, or by reason of any breach or
+default hereunder or thereunder, the Party substantially prevailing in any such
+action or proceeding and any appeal thereupon shall be paid all of its costs and
+reasonable documented outside attorneys’ fees incurred therein. In addition to
+the foregoing and other provisions of this Agreement that specifically require
+User to reimburse, pay or indemnify against Owner’s attorneys’ fees, User shall
+pay, as Additional Charges, all of Owner’s reasonable documented outside
+attorneys’ fees incurred in connection with the enforcement of this Agreement
+(except to the extent provided above), including reasonable documented
+attorneys’ fees incurred in connection with the review, negotiation or
+documentation of any assignment or any consent requested in connection with such
+enforcement, and the collection of any past due Golf Course Use Payments.
+ARTICLE XXVI
+ANTI-TERRORISM REPRESENTATIONS
+Each Party hereby represents and warrants to the other Party that neither such
+representing Party nor, to its knowledge, any persons or entities holding any
+Controlling legal or beneficial interest whatsoever in it are (i) the target of
+any sanctions program that is established by Executive Order of the President or
+published by the Office of Foreign Assets Control, U.S. Department of the
+Treasury (“OFAC”); (ii) designated by the President or OFAC pursuant to the
+Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency
+Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56,
+Executive Order 13224 (September 23, 2001) or any Executive Order of the
+President issued pursuant to such statutes; or (iii) named on the following list
+that is published by OFAC: “List of Specially Designated Nationals and Blocked
+Persons” (collectively, “Prohibited Persons”). Each Party hereby represents and
+warrants to the other Party that no funds tendered to such other Party by such
+tendering Party under the terms of this Agreement are or will be directly or
+indirectly derived from activities that may contravene U.S. federal, state or
+international laws and regulations, including anti-money laundering laws.
+Neither Party will during the Term knowingly engage in any transactions or
+dealings, or knowingly be otherwise associated with, any Prohibited Persons in
+connection with the Golf Courses.
+ARTICLE XXVII
+
+MISCELLANEOUS
+27.1    Survival. Anything contained in this Agreement to the contrary
+notwithstanding, all claims against, and liabilities, obligations and
+indemnities of User or Owner arising or in respect of any period prior to the
+Expiration Date shall survive the Expiration Date.
+27.2    Severability. Subject to Section 27.17, if any term or provision of this
+Agreement or any application thereof shall be held invalid or unenforceable, the
+remainder of this Agreement and any other application of such term or provision
+shall not be affected thereby.
+27.3    Non-Recourse. User specifically agrees to look solely to the Golf
+Courses for recovery of any judgment from Owner (and Owner’s liability hereunder
+shall be limited solely to its interest in the Golf Courses, and no recourse
+under or in respect of this Agreement shall be had against any other assets of
+Owner whatsoever). The provision contained in the foregoing sentence is not
+intended to, and shall not, limit any right that User might otherwise have to
+obtain injunctive relief against Owner, or any action not involving the personal
+liability of Owner. In no event shall either Party ever be liable to the other
+Party for any indirect, consequential, lost profits, punitive, exemplary,
+statutory or treble damages suffered from whatever cause (other than, as to all
+such forms of damages, (i) if Owner has terminated this Agreement, any damages
+as provided under Section 13.4 hereof, (ii) if Owner has not terminated this
+Agreement, any damages as provided for herein, and (iii) a claim (including an
+indemnity claim) for recovery of any such damages that the claiming party is
+required by a court of competent jurisdiction or the expert to pay to a third
+party (other than to the extent resulting from the claiming Party’s gross
+negligence, willful misconduct or default hereunder), and the Parties
+acknowledge and agree that the rights and remedies in this Agreement, and all
+other rights and remedies at law and in equity, will be adequate in all
+circumstances for any claims the Parties might have with respect to damages. It
+is specifically agreed that no constituent member, partner, owner, director,
+officer or employee of a Party shall ever be personally liable for any judgment
+(in respect of obligations under or in connection with this Agreement) against,
+or for the payment of any monetary obligation under or in respect of this
+Agreement, such Party, to the other Party.
+27.4    Successors and Assigns. This Agreement shall be binding upon Owner and
+its permitted successors and assigns and, subject to the provisions of Article
+XVII, upon User and its successors and assigns.
+27.5    Arbitration. In the event of a dispute with respect to this Agreement,
+or in any case when this Agreement expressly provides for the settlement or
+determination of a dispute or question by an Expert pursuant to this Section
+27.5 (in any such case, a “Section 27.5 Dispute”), such dispute shall be
+determined in accordance with an arbitration proceeding as set forth in this
+Section 27.5.
+(a)    Any Section 27.5 Dispute shall be determined by an arbitration panel
+comprised of three members, each of whom shall be an Expert (the “Arbitration
+Panel”). No more than one panel member may be with the same firm and no panel
+member may have an economic interest in the outcome of the arbitration.
+(b)    The Arbitration Panel shall be selected as set forth in this Section
+27.5(b). If a Section 27.5 Dispute arises and if Owner and User are not able to
+resolve such dispute after at least fifteen (15) days of good faith
+negotiations, then either Party shall each have the right to submit the dispute
+to the Arbitration Panel, upon written notice to the other Party (the
+“Arbitration Notice”). The Arbitration Notice shall identify one member of the
+Arbitration Panel who meets the criteria of the above paragraph. Within five (5)
+Business Days after the receipt of the Arbitration Notice, the Party receiving
+such Arbitration Notice shall respond in writing identifying one member of the
+Arbitration Panel who meets the criteria of the above paragraph. Such notices
+shall include the name, address and other pertinent contact information, and
+qualifications of its member of the Arbitration Panel. If a Party fails to
+timely select its respective panel member, the other Party may notify such Party
+in writing of such failure, and if such Party fails to select its respective
+panel member within three (3) Business Days after receipt of such notice, then
+such other Party may select and identify to such Party such panel member on such
+Party’s behalf. The third (3rd) member of the Arbitration Panel will be selected
+by the two (2) members of the Arbitration Panel who were selected by Owner and
+User; provided, that if, within five (5) Business Days after they are
+identified, they fail to select a third (3rd) member, or if they are unable to
+agree on such selection, Owner and User shall cause the third (3rd) member of
+the Arbitration Panel to be appointed by the managing officer of the American
+Arbitration Association.
+(c)    Within ten (10) Business Days after the selection of the Arbitration
+Panel, Owner and User each shall submit to the Arbitration Panel a written
+statement identifying its summary of the issues. Owner and User may also request
+an evidentiary hearing on the merits in addition to the submission of written
+statements. The Arbitration Panel shall make its decision within twenty (20)
+days after the later of (i) the submission of such written statements, and (ii)
+the conclusion of any evidentiary hearing on the merits. The Arbitration Panel
+shall reach its decision by majority vote and shall communicate its decision by
+written notice to Owner and User.
+(d)    The decision by the Arbitration Panel shall be final, binding and
+conclusive and shall be non-appealable and enforceable in any court having
+jurisdiction. All hearings and proceedings held by the Arbitration Panel shall
+take place in New York, New York unless otherwise mutually agreed by the Parties
+and the Arbitration Panel.
+(e)    The resolution procedure described herein shall be governed by the
+Commercial Rules of the American Arbitration Association and the Procedures for
+Large, Complex, Commercial Disputes in effect as of the Commencement Date.
+(f)    Owner and User shall bear equally the fees, costs and expenses of the
+Arbitration Panel in conducting any arbitration described in this Section 27.5.
+27.6    Governing Law. THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK,
+WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND
+TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. ACCORDINGLY, IN ALL RESPECTS THIS
+AGREEMENT (AND ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) SHALL BE
+GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
+THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OR CONFLICTS OF LAW) AND ANY
+APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
+27.7    Waiver of Trial by Jury. EACH OF OWNER AND USER ACKNOWLEDGES THAT IT HAS
+HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY
+JURY UNDER THE CONSTITUTION OF THE UNITED STATES AND THE STATES OF NEVADA AND
+NEW YORK. EACH OF OWNER AND USER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
+JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS
+AGREEMENT (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) OR (ii) IN ANY
+MANNER CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF OWNER AND USER
+WITH RESPECT TO THIS AGREEMENT (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS
+HEREOF) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
+CONNECTION HEREWITH; OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
+WHETHER NOW EXISTING OR HEREINAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
+TORT OR OTHERWISE; EACH OF OWNER AND USER HEREBY AGREES AND CONSENTS THAT ANY
+SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL
+WITHOUT A JURY, AND THAT EITHER PARTY MAY FILE A COPY OF THIS SECTION WITH ANY
+COURT AS CONCLUSIVE EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF
+ITS RIGHT TO TRIAL BY JURY.
+27.8    Entire Agreement. This Agreement (including the Exhibits and Schedules
+hereto) constitutes the entire and final agreement of the Parties with respect
+to the subject matter hereof, and may not be changed or modified except by an
+agreement in writing signed by the Parties. Owner and User hereby agree that all
+prior or contemporaneous oral understandings, agreements or negotiations
+relative to the use of the Golf Courses are merged into and revoked by this
+Agreement (together with the related agreements referenced above).
+27.9    Headings. All captions, titles and headings to sections, subsections,
+paragraphs, exhibits or other divisions of this Agreement, and the table of
+contents, are only for the convenience of the Parties and shall not be construed
+to have any effect or meaning with respect to the other contents of such
+sections, subsections, paragraphs, exhibits or other divisions, such other
+content being controlling as to the agreement among the Parties.
+27.10    Counterparts. This Agreement may be executed in any number of
+counterparts, each of which shall be a valid and binding original, but all of
+which together shall constitute one and the same instrument. This Agreement may
+be effectuated by the exchange of electronic copies of signatures (e.g., .pdf),
+with electronic copies of this executed Agreement having the same force and
+effect as original counterpart signatures hereto for all purposes.
+27.11    Interpretation. Both Owner and User have been represented by counsel
+and this Agreement and every provision hereof has been freely and fairly
+negotiated. Consequently, all provisions of this Agreement shall be interpreted
+according to their fair meaning and shall not be strictly construed against any
+party.
+27.12    Further Assurances. The Parties agree to promptly sign all documents
+reasonably requested to give effect to the provisions of this Agreement.
+27.13    Confidential Information. Each Party hereby agrees to, and to cause its
+Representatives to, maintain the confidentiality of all non-public information
+received pursuant to this Agreement (including the names of any and all
+individuals that use any Complimentary Golf Rounds (the “Protected Names”));
+provided that nothing herein shall prevent any Party from disclosing any such
+non-public information (a) other than with respect to the Protected Names, in
+the case of Owner, to any Affiliate of Owner, (b) in the case of User, to any
+Affiliate of User, (c) in any legal, judicial or administrative proceeding or
+other compulsory process or otherwise as required by applicable Legal
+Requirements (in which case the disclosing Party shall promptly notify the other
+Parties, in advance, to the extent permitted by law), (d) upon the request or
+demand of any regulatory authority having jurisdiction over a Party or its
+affiliates (in which case the disclosing Party shall, other than with respect to
+routine, periodic inspections by such regulatory authority, promptly notify the
+other Parties, in advance, to the extent permitted by law), (e) to its
+Representatives who are informed of the confidential nature of such information
+and have agreed to keep such information confidential (and the disclosing Party
+shall be responsible for such Representatives’ compliance therewith), (f) to the
+extent any such information becomes publicly available other than by reason of
+disclosure by the disclosing Party or any of its respective Representatives in
+breach of this Section 27.13, (g) other than with respect to the Protected
+Names, to the extent that such information is received by such Party from a
+third party that is not, to such Party’s knowledge, subject to confidentiality
+obligations owing to the other Parties or any of their respective affiliates or
+related parties or (h) other than with respect to the Protected Names, to the
+extent that such information is independently developed by such Party. The
+foregoing shall not preclude Owner from sending Owner’s golf offers and other
+promotional materials to (i) any individual that uses any Complimentary Golf
+Rounds, provided Owner has independently obtained the name and contact
+information of such individual (i.e., other than by reason of such individual’s
+use of any Complimentary Golf Rounds) and such individual has consented to
+receive such promotional materials, and (ii) any individual that has golfed at
+any of the Golf Courses prior to the Commencement Date and whose name and
+contact information are included in the Golf Database Information (as such term
+is defined on Exhibit C attached hereto), provided such individual has consented
+to receive such promotional materials. Each of the Parties acknowledges that it
+and its Representatives may receive material non-public information with respect
+to the other Party and its Affiliates and that each such Party is aware (and
+will so advise its Representatives) that federal and state securities laws and
+other applicable laws may impose restrictions on purchasing, selling, engaging
+in transactions or otherwise trading in securities of the other Party and its
+Affiliates with respect to which such Party or its Representatives has received
+material non-public information so long as such information remains material
+non-public information
+27.14    Time of Essence. TIME IS OF THE ESSENCE OF THIS AGREEMENT AND EACH
+PROVISION HEREOF IN WHICH TIME OF PERFORMANCE IS ESTABLISHED.
+27.15    Consents, Approval and Notices.
+(a)    All consents and approvals that may be given under this Agreement shall,
+as a condition of their effectiveness, be in writing. The granting of any
+consent or approval by Owner or User to the performance of any act by User or
+Owner requiring the consent or approval of Owner or User under any of the terms
+or provisions of this Agreement shall relate only to the specified act or acts
+thereby consented to or approved and, unless otherwise specified, shall not be
+deemed a waiver of the necessity for such consent or approval for the same or
+any similar act in the future, and/or the failure on the part of Owner or User
+to object to any such action taken by User or Owner without the consent or
+approval of the other Party, shall not be deemed a waiver of their right to
+require such consent or approval for any further similar act; and User hereby
+expressly covenants and agrees that as to all matters requiring Owner’s consent
+or approval under any of the terms of this Agreement, User shall secure such
+consent or approval for each and every happening of the event requiring such
+consent or approval, and shall not claim any waiver on the part of Owner of the
+requirement to secure such consent or approval.
+(b)    Each Party acknowledges that in granting any consents, approvals or
+authorizations under this Agreement, and in providing any advice, assistance,
+recommendation or direction under this Agreement, neither such Party nor any
+Affiliates thereof guarantee success or a satisfactory result from the subject
+of such consent, approval, authorization, advice, assistance, recommendation or
+direction. Accordingly, each Party agrees that neither such Party nor any of its
+Affiliates shall have any liability whatsoever to any other Party or any third
+party by reason of: (i) any consent, approval or authorization, or advice,
+assistance, recommendation or direction, given or withheld; or (ii) any delay or
+failure to provide any consent, approval or authorization, or advice,
+assistance, recommendation or direction (except in the event of a breach of a
+covenant herein not to unreasonably withhold or delay any consent or approval);
+provided, however, each agrees to act in good faith when dealing with or
+providing any advice, consent, assistance, recommendation or direction.
+(c)    Any notice, report or information required to be delivered by User
+hereunder may be delivered collectively with any other notices, reports or
+information required to be delivered by User hereunder as part of a single
+report, notice or communication. Any such notice, report or information may be
+delivered to Owner by User providing a representative of Owner with access to
+User’s or its Affiliate’s electronic databases or other information systems
+containing the applicable information and notice that information has been
+posted on such database or system.
+27.16    Apportionment of Revenue and Expenses. For the avoidance of doubt, the
+Parties hereby acknowledge that (a) all items of operating revenue and operating
+expenses of each Golf Course, with respect to the period prior to 12:00 a.m.
+local time (the “Cut-off Time”) at such Golf Course on the Commencement Date,
+shall be for the account of the entity that owned such Golf Course on the day
+immediately preceding the Commencement Date, and (b) all items of operating
+revenue and operating expenses of each Golf Course, with respect to the period
+from and after the Cut-off Time, shall be for the account of Owner.
+27.17    Single, Indivisible Agreement. This Agreement constitutes one
+indivisible usage agreement with respect to the Golf Courses and not separate
+usage agreements governed by similar terms. The Golf Courses constitute one
+economic unit, and each of the Golf Course Use Payments and all other provisions
+have been negotiated and agreed upon based on usage of all of the Golf Courses
+by User as a single, composite, inseparable transaction and would have been
+substantially different had separate usage agreements or a divisible usage
+agreement been intended. Except as expressly provided in this Agreement for
+specific, isolated purposes (and then only to the extent expressly otherwise
+stated), all provisions of this Agreement apply equally and uniformly to all
+components of the Golf Courses collectively as one unit. The Parties intend that
+the provisions of this Agreement shall at all times be construed, interpreted
+and applied so as to carry out their mutual objective to create an indivisible
+usage agreement with respect to all of the Golf Courses and, in particular but
+without limitation, that, for purposes of any assumption, rejection or
+assignment of this Agreement under 11 U.S.C. Section 365, or any successor or
+replacement thereof or any analogous state law, this is one indivisible and
+non-severable usage agreement and executory contract dealing with one legal and
+economic unit and that this Agreement must be assumed, rejected or assigned as a
+whole with respect to all (and only as to all) of the Golf Courses. The Parties
+may elect (in each Party’s respective sole discretion, but subject to the
+applicable terms of this Agreement) to amend this Agreement from time to time to
+exclude one or more components or portions of, and/or to include one or more
+additional components as part of, the Golf Courses, and any such future
+exclusion of or addition to the Golf Courses shall not in any way change the
+indivisible and nonseverable nature of this Agreement and all of the foregoing
+provisions shall continue to apply in full force. Furthermore, under certain
+circumstances as more particularly and expressly provided in this Agreement
+above, one or more of the Golf Courses hereunder may, subject to the provisions
+of this Agreement, be removed from this Agreement and no longer be part of the
+Golf Courses and such reduction of the Golf Courses shall not in any way change
+the indivisible and nonseverable nature of this Agreement and all of the
+foregoing provisions shall continue to apply in full force with respect to the
+balance of the Golf Courses.
+27.18    Termination of this Agreement. Wherever in this Agreement the action of
+terminating this Agreement with respect to any Golf Course (or action of similar
+import) is discussed, such action shall mean the termination of User’s rights in
+and to the use of such Golf Course and the termination of such obligations of
+User hereunder that concern solely such Golf Course (including, without
+limitation, the obligations of User hereunder with respect to the portion of the
+Complimentary Golf Rounds Fee attributable to such Golf Course), which, for the
+avoidance of doubt, shall under no circumstances include or be deemed to include
+the obligations of User hereunder with respect to all or any portion of the
+Membership Fee). Notwithstanding anything in this Agreement to the contrary, if
+this Agreement is terminated with respect to any Golf Course, such termination
+shall not affect the applicable Term of this Agreement with respect to the
+balance of the Golf Courses with respect to which this Agreement is not so
+terminated, and this Agreement shall continue in full force and effect with
+respect to such balance of the Golf Courses, and User shall remain obligated to
+pay the entirety of the Membership Fee (subject to the third (3rd) sentence of
+Section 16.2(b)). Following any such termination, the Parties shall execute an
+amendment to this Agreement to memorialize such termination; provided, however
+the failure to do so will not affect the effectiveness of such termination.
+
+
+49
+ 
+
+Exhibit 10.1
+
+ 
+
+EXECUTION COPY
+
+ 
+
+ 
+
+$2,000,000,000
+
+ 
+
+364-DAY CREDIT AGREEMENT
+
+dated as of
+
+May 1, 2020
+
+among
+
+CUMMINS INC.,
+
+The SUBSIDIARY BORROWERS Referred to Herein,
+
+The LENDERS Party Hereto,
+
+JPMORGAN CHASE BANK, N.A.,
+as Administrative Agent,
+
+BANK OF AMERICA, N.A.,
+as Syndication Agent
+
+
+ 
+
+and
+
+ 
+
+CITIBANK, N.A.
+
+HSBC BANK USA, N.A., and
+
+ING BANK N.V., DUBLIN BRANCH,
+
+as Documentation Agents
+
+ 
+
+ 
+
+
+
+ 
+
+JPMORGAN CHASE BANK, N.A.,
+
+BofA SECURITIES, INC.,
+
+CITIBANK, N.A.,
+
+HSBC SECURITIES (USA) INC. and
+
+ING BANK N.V., DUBLIN BRANCH,
+
+as Joint Bookrunners and Joint Lead Arrangers
+
+ 
+
+ 
+
+
+
+ 
+
+ 
+
+
+
+ 
+
+       TABLE OF CONTENTS       
+
+ 
+
+  Page
+
+ 
+
+Article 1
+
+Definitions
+
+  Section 1.01.   Defined Terms 1     Section 1.02.   Classification of Loans
+and Borrowings 24     Section 1.03.   Terms Generally 24     Section
+1.04.   Accounting Terms; GAAP 24     Section 1.05.   [Reserved] 25     Section
+1.06.   Interest Rates; LIBOR Notification 25     Section 1.07.   Certain
+Calculations 26     Section 1.08.   Divisions 26    
+
+Article 2
+
+The Credits
+
+  Section 2.01.   Commitments 26     Section 2.02.   Loans and Borrowings 26    
+Section 2.03.   Requests for Revolving Borrowings 27     Section
+2.04.   [Reserved] 28     Section 2.05.   [Reserved] 28     Section
+2.06.   Funding of Borrowings 28     Section 2.07.   Interest Elections 29    
+Section 2.08.   Termination and Reduction of Commitments 30     Section
+2.09.   Repayment of Loans; Evidence of Debt 31     Section 2.10.   Prepayment
+of Loans 32     Section 2.11.   Fees 33     Section 2.12.   Interest 34    
+Section 2.13.   Alternate Rate of Interest 34     Section 2.14.   Increased
+Costs 36     Section 2.15.   Break Funding Payments 37     Section 2.16.   Taxes
+38
+
+ 
+
+
+
+i
+
+ 
+
+ 
+
+Section 2.17.   Foreign Subsidiary Costs 40     Section 2.18.   Payments
+Generally; Pro Rata Treatment; Sharing of Set-offs 41     Section
+2.19.   Mitigation Obligations; Replacement of Lenders 42     Section
+2.20.   Currency Equivalents 44     Section 2.21.   Margin Determinations 44    
+Section 2.22.   Illegality 46     Section 2.23.   Defaulting Lenders 47    
+
+Article 3
+
+Representations and Warranties
+
+  Section 3.01.   Organization; Powers 47     Section 3.02.   Authorization 48  
+  Section 3.03.   Enforceability 48     Section 3.04.   Governmental Approvals
+48     Section 3.05.   Financial Statements 48     Section 3.06.   Litigation;
+Compliance with Laws 49     Section 3.07.   Federal Reserve Regulations 49    
+Section 3.08.   No Regulatory Restrictions on Borrowing 49     Section
+3.09.   [Reserved] 49     Section 3.10.   [Reserved] 49     Section
+3.11.   [Reserved] 49     Section 3.12.   Beneficial Ownership Certification 49
+    Section 3.13.   Anti-Corruption Laws and Sanctions 49    
+
+Article 4
+
+Conditions
+
+  Section 4.01.   Effective Date 50     Section 4.02.   Each Credit Event 51    
+Section 4.03.   First Borrowing by Each Eligible Subsidiary 51    
+
+Article 5
+
+Affirmative Covenants
+
+  Section 5.01.   Existence; Businesses and Properties 52     Section
+5.02.   Insurance 52     Section 5.03.   Taxes 53     Section 5.04.   Financial
+Statements, Reports, Etc. 53
+
+ 
+
+
+
+ii
+
+ 
+
+ 
+
+Section 5.05.   Litigation and Other Notices 55    
+
+Section 5.06.   Maintaining Records; Access to Properties and Inspections
+
+55     Section 5.07.   Use of Proceeds 56     Section 5.08.   Compliance with
+Laws 56    
+
+Article 6
+
+Negative Covenants
+
+  Section 6.01.   Negative Pledge 56     Section 6.02.   Mergers,
+Consolidations, and Sales of Assets 58     Section 6.03.   Priority Indebtedness
+59    
+
+Article 7
+
+Financial Covenant
+
+  Section 7.01.   Net Debt to Total Capital 59    
+
+Article 8
+
+Events of Default
+
+ 
+
+Article 9
+
+The Agents
+
+  Section 9.01.   Appointment and Authorization of Administrative Agent 62    
+Section 9.02.   Rights and Powers of Administrative Agent as a Lender 62    
+Section 9.03.   Limited Duties and Responsibilities of Administrative Agent 62  
+  Section 9.04.   Authority of Administrative Agent to Rely on Certain Writings,
+Statements and Advice 63     Section 9.05.   Sub-Agents and Related Parties 63  
+  Section 9.06.   Resignation; Successor Administrative Agent 63     Section
+9.07.   Credit Decisions by Lenders 64     Section 9.08.   Administrative
+Agent’s Fee 64     Section 9.09.   Other Agents 64     Section 9.10.   Certain
+ERISA Matters 64     Section 9.11.   Posting of Communications 65    
+
+Article 10
+
+Representations and Warranties of Eligible Subsidiaries
+
+  Section 10.01.   Organization; Powers 67     Section 10.02.   Authorization 67
+
+ 
+
+
+
+iii
+
+ 
+
+ 
+
+Section 10.03.   Enforceability 67     Section 10.04.   Taxes 67    
+
+Article 11
+
+Guaranty
+
+  Section 11.01.   The Guaranty 68     Section 11.02.   Guaranty Unconditional
+68     Section 11.03.   Discharge Only Upon Payment in Full; Reinstatement in
+Certain Circumstances 69     Section 11.04.   Waiver by the Company 69    
+Section 11.05.   Subrogation 69     Section 11.06.   Stay of Acceleration 69    
+Section 11.07.   Continuing Guaranty 69    
+
+Article 12
+
+Miscellaneous
+
+  Section 12.01.   Notices 69     Section 12.02.   Waivers; Amendments 70    
+Section 12.03.   Expenses; Indemnity; Damage Waiver 72     Section
+12.04.   Successors and Assigns 73     Section 12.05.   Survival 80     Section
+12.06.   Counterparts; Integration; Effectiveness 80     Section
+12.07.   Severability 81     Section 12.08.   Right of Set-off 81     Section
+12.09.   Governing Law; Jurisdiction; Consent to Service of Process 81    
+Section 12.10.   WAIVER OF JURY TRIAL 82     Section 12.11.   Judgment Currency
+82     Section 12.12.   Headings 83     Section 12.13.   Confidentiality 83    
+Section 12.14.   USA Patriot Act and Beneficial Ownership Regulation
+Notification 83     Section 12.15.   No Fiduciary Duty 84     Section
+12.16.   Acknowledgement and Consent to Bail-in of Affected Financial
+Institutions 85     Section 12.17.   Acknowledgement Regarding Any Supported
+QFCs 85
+
+ 
+
+
+
+iv
+
+ 
+
+ 
+
+SCHEDULES
+
+ 
+
+Schedule 2.01 _ Commitments
+
+ 
+
+
+
+EXHIBITS           Exhibit A – Form of Assignment and Assumption       Exhibit
+B-1 – Form of Opinion of Company’s External Counsel       Exhibit B-2 – Form of
+Opinion of Company’s Internal Counsel       Exhibit B-3A – [Reserved]      
+Exhibit B-3B – [Reserved]       Exhibit C – Form of Opinion of Eligible
+Subsidiary’s Counsel       Exhibit D – Form of Election to Participate      
+Exhibit E – Form of Election to Terminate       Exhibit F – Form of Compliance
+Certificate       Exhibit G – [Reserved]       Exhibit H – [Reserved]      
+Exhibit I – Form of Borrowing Request
+
+  
+
+
+
+v
+
+ 
+
+ 
+
+
+
+364-DAY CREDIT AGREEMENT dated as of May 1, 2020 among CUMMINS INC., the
+SUBSIDIARY BORROWERS referred to herein, the LENDERS party hereto and JPMORGAN
+CHASE BANK, N.A., as Administrative Agent (as amended, restated, amended and
+restated, supplemented or otherwise modified from time to time, this
+“Agreement”).
+
+ 
+
+In consideration of the premises and the mutual covenants contained herein, the
+parties hereto agree as follows:
+
+ 
+
+Article 1
+Definitions
+
+ 
+
+Section 1.01.      Defined Terms. As used in this Agreement, the following terms
+have the meanings specified below:
+
+ 
+
+“ABR”, when used in reference to any Loan or Borrowing, refers to whether such
+Loan, or the Loans comprising such Borrowing, are bearing interest at a rate
+determined by reference to the Alternate Base Rate.
+
+ 
+
+“ABR Margin” has the meaning assigned to such term in Section 2.21.
+
+ 
+
+“Acquisition Indebtedness” means any Indebtedness of the Company or any of its
+Subsidiaries that has been issued for the purpose of financing, in whole or in
+part, a Material Acquisition and any related transactions or series of related
+transactions (including for the purpose of refinancing or replacing all or a
+portion of any pre-existing Indebtedness of the Company, any of its Subsidiaries
+or the person(s) or assets to be acquired); provided that (a) the release of the
+proceeds thereof to the Company and its Subsidiaries is contingent upon the
+consummation of such Material Acquisition and, pending such release, such
+proceeds are held in escrow (and, if the definitive agreement (or, in the case
+of a tender offer or similar transaction, the definitive offer document) for
+such acquisition is terminated prior to the consummation of such Material
+Acquisition or if such Material Acquisition is otherwise not consummated by the
+date specified in the definitive documentation relating to such Indebtedness,
+such proceeds shall be promptly applied to satisfy and discharge all obligations
+of the Company and its Subsidiaries in respect of such Indebtedness) or (b) such
+Indebtedness contains a “special mandatory redemption” provision (or other
+similar provision) or otherwise permits or requires such Indebtedness to be
+redeemed or prepaid if such Material Acquisition is not consummated by the date
+specified in the definitive documentation relating to such Indebtedness (and if
+the definitive agreement (or, in the case of a tender offer or similar
+transaction, the definitive offer document) for such Material Acquisition is
+terminated in accordance with its terms prior to the consummation of such
+Material Acquisition or such Material Acquisition is otherwise not consummated
+by the date specified in the definitive documentation relating to such
+Indebtedness, such Indebtedness is so redeemed or prepaid within 90 days of such
+termination or such specified date, as the case may be).
+
+ 
+
+“Adjusted LIBO Rate” means (a) with respect to any Euro-Currency Borrowing
+denominated in Dollars for any Interest Period, an interest rate per annum equal
+to (i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory
+Reserve Rate and (b) with respect to any Euro-Currency Borrowing denominated in
+an Alternative Currency for any Interest Period, an interest rate per annum
+equal to the LIBO Rate for such Interest Period.
+
+ 
+
+“Administrative Agent” means JPMCB and its Affiliates, as applicable, in each
+case in its capacity as administrative agent for the Lenders hereunder, provided
+that the rights of the Administrative Agent under Article 8, Section 12.02 and
+Section 12.04 shall be exercised solely by JPMCB (or its successors) in its
+capacity as Administrative Agent.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+“Administrative Questionnaire” means an Administrative Questionnaire in a form
+supplied by the Administrative Agent.
+
+ 
+
+“Affected Financial Institution” means (a) any EEA Financial Institution or (b)
+any UK Financial Institution.
+
+ 
+
+“Affiliate” means, with respect to a specified Person, another Person that
+directly, or indirectly through one or more intermediaries, Controls or is
+Controlled by or is under common Control with the Person specified.
+
+ 
+
+“Agents” means the Administrative Agent, each Syndication Agent and each
+Documentation Agent.
+
+ 
+
+“Agreement” has the meaning specified in the introductory paragraph.
+
+ 
+
+“Alternate Base Rate” means, for any day, a rate per annum equal to the highest
+of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on
+such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest
+Period on such day (or if such day is not a Euro-Dollar Business Day, on the
+immediately preceding Euro-Dollar Business Day) plus 1%, provided that for the
+purpose of this definition, the Adjusted LIBO Rate for any day shall be based on
+the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one
+month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London
+time on such day. Any change in the Alternate Base Rate due to a change in the
+Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and
+including the effective date of such change in the Prime Rate, the NYFRB Rate or
+the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used
+as an alternate rate of interest pursuant to Section 2.13 hereof, then the
+Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall
+be determined without reference to clause (c) above. For the avoidance of doubt,
+if the Alternate Base Rate as so determined would be less than 1.50%, such rate
+shall be deemed to be 1.50% for purposes of this Agreement.
+
+ 
+
+“Alternative Currency” means, from and after the time of such approval pursuant
+to clause (b), any currency requested by the Company; provided that (a) such
+requested currency is a lawful currency that is readily available and freely
+transferable and convertible into Dollars and (b) each of the Lenders and the
+Administrative Agent have provided prior written approval of such currency.
+There are no Alternative Currencies as of the Effective Date.
+
+ 
+
+“Alternative Currency Loan” means a Loan that is made in an Alternative Currency
+pursuant to the applicable Borrowing Request.
+
+ 
+
+
+
+2
+
+ 
+
+ 
+
+“Anti-Corruption Laws” means all laws, rules, and regulations of any
+jurisdiction applicable to Credit Parties or their respective subsidiaries from
+time to time concerning or relating to bribery or corruption.
+
+ 
+
+“Applicable Lending Office” means, with respect to any Lender, (a) in the case
+of its ABR Loans, its Domestic Lending Office and (b) in the case of its
+Euro-Currency Loans, its Euro-Currency Lending Office.
+
+ 
+
+“Applicable Parties” has the meaning assigned to such term in Section 9.11(c).
+
+ 
+
+“Applicable Percentage” means, with respect to any Lender, the percentage of the
+total Commitments represented by such Lender’s Commitment; provided that in the
+case of Section 2.23 when a Defaulting Lender shall exist, “Applicable
+Percentage” shall mean the percentage of the total Commitments (disregarding any
+Defaulting Lender’s Commitment) represented by such Lender’s Commitment. If the
+Commitments have terminated or expired, the Applicable Percentages shall be
+determined based upon the Commitments most recently in effect, giving effect to
+any assignments and to any Lender’s status as a Defaulting Lender at the time of
+determination.
+
+ 
+
+“Applicable Rate” means, for any day, with respect to any ABR Loan or
+Euro-Currency Loan, or with respect to the commitment fees payable hereunder, as
+the case may be, the applicable ABR Margin or Euro-Currency Margin or the
+Commitment Fee Rate, respectively, in each case as determined for such day in
+accordance with Section 2.21.
+
+ 
+
+“Approved Electronic Platform” has the meaning assigned to such term in Section
+9.11(a).
+
+ 
+
+“Approved Fund” has the meaning assigned to such term in Section 12.04.
+
+ 
+
+“Approved Jurisdiction” means (i) the United States, (ii) England and Wales in
+the United Kingdom, (iii) the Netherlands and (iv) any other jurisdiction
+approved for this purpose by each of the Lenders.
+
+ 
+
+“Arranger” means each of JPMorgan Chase Bank, N.A., BofA Securities, Inc.,
+Citibank, N.A., HSBC Securities (USA) Inc. and ING Bank N.V., Dublin Branch,
+each in its capacity as a joint bookrunner and joint lead arranger under this
+Agreement.
+
+ 
+
+“Assignment and Assumption” means an assignment and assumption entered into by a
+Lender and an assignee (with the consent of each party whose consent is required
+by Section 12.04), and accepted by the Administrative Agent, in the form of
+Exhibit A or any other form approved by the Administrative Agent and the
+Company.
+
+ 
+
+“Availability Period” means the period from and including the Effective Date to
+but excluding the earlier of the Maturity Date and the date of termination of
+the Commitments in whole.
+
+ 
+
+“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by
+the applicable Resolution Authority in respect of any liability of an Affected
+Financial Institution.
+
+ 
+
+
+
+3
+
+ 
+
+ 
+
+“Bail-In Legislation” means, (a) with respect to any EEA Member Country
+implementing Article 55 of Directive 2014/59/EU of the European Parliament and
+of the Council of the European Union, the implementing law, regulation, rule or
+requirement for such EEA Member Country from time to time which is described in
+the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,
+Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and
+any other law, regulation or rule applicable in the United Kingdom relating to
+the resolution of unsound or failing banks, investment firms or other financial
+institutions or their affiliates (other than through liquidation, administration
+or other insolvency proceedings).
+
+ 
+
+“Bail-In Lender” has the meaning assigned to such term in Section 2.19(b).
+
+ 
+
+“Bankruptcy Code” means Title 11 of the United States Code entitled
+“Bankruptcy”, as now and hereafter in effect, or any successor statute.
+
+ 
+
+“Bankruptcy Event” means, with respect to any Person, such Person becomes the
+subject of a voluntary or involuntary bankruptcy or insolvency proceeding, or
+has had a receiver, conservator, trustee, administrator, custodian, assignee for
+the benefit of creditors or similar Person charged with the reorganization or
+liquidation of its business appointed for it, or, in the good faith
+determination of the Administrative Agent, has taken any action in furtherance
+of, or indicating its consent to, approval of, or acquiescence in, any such
+proceeding or appointment or has had any order for relief in such proceeding
+entered in respect thereof, provided that, for avoidance of doubt, a Bankruptcy
+Event shall not result solely by virtue of (i) any ownership interest, or the
+acquisition of any ownership interest, in such Person by a Governmental
+Authority or instrumentality thereof or (ii) in the case of a solvent person,
+the precautionary appointment of an administrator, guardian, custodian or other
+similar official by a Governmental Authority under or based on the law of the
+country where such Person is subject to home jurisdiction supervision if
+applicable law requires that such appointment not be publicly disclosed, in any
+such case, where such action does not result in or provide such Person 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
+Person (or such Governmental Authority or instrumentality) to reject, repudiate,
+disavow or disaffirm any obligations of such Person hereunder.
+
+ 
+
+“Beneficial Ownership Certification” means a certification regarding beneficial
+ownership as required by the Beneficial Ownership Regulation.
+
+ 
+
+“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
+
+ 
+
+“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in
+Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as
+defined in Section 4975 of the Code to which Section 4975 of the Code applies,
+and (c) any Person whose assets include (for purposes of the Plan Asset
+Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the
+Code) the assets of any such “employee benefit plan” or “plan”.
+
+ 
+
+“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined
+under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
+
+  
+
+4
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+  
+
+“Board” means the Board of Governors of the Federal Reserve System of the United
+States of America.
+
+ 
+
+“Borrower” means the Company or any Subsidiary Borrower, as the context may
+require, and their respective successors, and “Borrowers” means all of the
+foregoing. When used in relation to any Loan, references to “the Borrower” are
+to the particular Borrower to which such Loan is or is to be made.
+
+ 
+
+“Borrowing” means Revolving Loans of the same Type, made, converted or continued
+on the same date and, in the case of Euro-Currency Loans, denominated in the
+same currency and as to which a single Interest Period is in effect.
+
+ 
+
+“Borrowing Request” means a request by the Borrower for a Borrowing in
+accordance with Section 2.03 and in substantially the form set forth as Exhibit
+I hereto or such other form as the Administrative Agent and the Company may
+approve from time to time.
+
+ 
+
+“Capital Lease Obligations” of any Person means the obligations of such Person
+to pay rent or other amounts under any lease of (or other arrangement conveying
+the right to use) real or personal property, or a combination thereof, which
+obligations are required to be classified and accounted for as capital leases on
+a balance sheet of such Person under GAAP as in effect on December 14, 2018
+(without giving effect to the phase-in of the effectiveness of any amendments to
+GAAP that have been adopted as of such date), and the amount of such obligations
+shall be the capitalized amount thereof determined in accordance with GAAP as in
+effect on December 14, 2018 (without giving effect to the phase-in of the
+effectiveness of any amendments to GAAP that have been adopted as of such date).
+
+ 
+
+“Change in Control” means that (a) any Person or group of persons within the
+meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 becomes the
+beneficial owner, directly or indirectly, of 30% or more of the outstanding
+common stock of the Company or (b) individuals who constitute the Continuing
+Directors cease for any reason to constitute at least a majority of the board of
+directors of the Company (which, for the purpose of this definition, shall be
+deemed not to mean any committee of the board of directors of the Company).
+
+ 
+
+“Change in Law” means the occurrence, after the date of this Agreement (or, with
+respect to any Lender, if later, the date on which such Lender becomes a
+Lender), 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, rules,
+guideline, requirement or directive (whether or not having the force of law) by
+any Governmental Authority; provided, however, that notwithstanding anything
+herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer
+Protection Act and all requests, rules, guidelines, requirements and directives
+thereunder, issued in connection therewith or in implementation thereof, and
+(ii) all requests, rules, guidelines, requirements and directives promulgated by
+the Bank for International Settlements, the Basel Committee on Banking
+Supervision (or any successor or similar authority) or the United States or
+foreign regulatory authorities, in each case pursuant to Basel III, shall in
+each case be deemed to be a “Change in Law” regardless of the date enacted,
+adopted, issued or implemented.
+
+ 
+
+
+
+5
+
+ 
+
+ 
+
+“Class”, when used in reference to any Loan or Borrowing, refers to such Loan,
+or the Loans comprising such Borrowing, as being Revolving Loans.
+
+ 
+
+“CLO” has the meaning assigned to such term in Section 12.04.
+
+ 
+
+“Code” means the Internal Revenue Code of 1986, as amended from time to time.
+
+ 
+
+“Combination” has the meaning assigned to such term in Section 2.08(c).
+
+ 
+
+“Combined Lender” has the meaning assigned to such term in Section 2.08(c).
+
+ 
+
+“Commitment” means, with respect to each Lender, the commitment of such Lender
+to make Revolving Loans hereunder, expressed as an amount representing the
+maximum aggregate Dollar Amount of such Lender’s Revolving Credit Exposure
+hereunder, as such commitment may be (a) reduced from time to time pursuant to
+Section 2.08, (b) [reserved] and (c) reduced or increased from time to time
+pursuant to assignments by or to such Lender pursuant to Section 12.04. The
+initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in
+the Assignment and Assumption or other documentation or record (as such term is
+defined in Section 9-102(a)(70) of the New York Uniform Commercial Code) as
+provided in Section 12.04(b)(ii)(C) or other documentation contemplated hereby
+pursuant to which such Lender shall have assumed its Commitment, as applicable.
+The initial aggregate amount of the Lenders’ Commitments is $2,000,000,000.
+
+ 
+
+“Commitment Fee Rate” has the meaning assigned to such term in Section 2.21.
+
+ 
+
+“Communications” means, collectively, any notice, demand, communication,
+information, document or other material provided by or on behalf of any Credit
+Party pursuant to any Loan Document or the transactions contemplated therein
+which is distributed by the Administrative Agent or any Lender by means of
+electronic communications pursuant to Section 9.11(c), including through an
+Approved Electronic Platform.
+
+ 
+
+“Company” means Cummins Inc., an Indiana corporation.
+
+ 
+
+“Consolidated” means, as applied to any financial or accounting term with
+respect to any Person, such term determined on a consolidated basis in
+accordance with GAAP for such Person and all consolidated subsidiaries thereof.
+
+ 
+
+“Consolidated Net Debt” means Total Debt, minus (i) domestic cash and cash
+equivalents that are unrestricted and unencumbered (except for the Liens
+contemplated in clause (x) below) and (ii) foreign cash and cash equivalents
+that are unrestricted, unencumbered (except for the Liens contemplated in clause
+(x) below) and freely transferable to the United States (it being understood and
+agreed that the transfer of cash and cash equivalents being subject to (a) any
+procedures or limitations which are solely within the control of the Company or
+applicable Subsidiary, (b) any approval, filing, consent or the like of any
+third party or Governmental Authority (1) that is merely of a routine or
+administrative nature, (2) that is routinely and ordinarily provided or accepted
+by such third party or Governmental Authority in the ordinary course and (3) the
+most recent of which, at the time of determination, has not been denied or
+rejected by such third party or Governmental Authority and/or (c) the imposition
+of any nominal governmental stamp, documentary or similar nominal tax, charge or
+similar levy, in each case, shall not cause such cash and cash equivalents not
+to be “unrestricted, unencumbered and freely transferable” within the meaning of
+the foregoing), in each case, to the extent such cash and cash equivalents (x)
+are not subject to a Lien in favor of any creditor (other than any Lien of the
+type contemplated by Sections 6.01(a) and 6.01(r)) and (y) exceed, in the
+aggregate after giving effect to clause (i), $250,000,000.
+
+ 
+
+
+
+6
+
+ 
+
+ 
+
+“Consolidated Subsidiary” means, at any date, any Subsidiary or other entity the
+accounts of which would be Consolidated with those of the Company in its
+Consolidated financial statements if such statements were prepared as of such
+date.
+
+ 
+
+“Consolidated Total Capital” means, with respect to the Company on any date, the
+sum of (x) Consolidated Net Debt plus (y) consolidated shareholders’ equity of
+the Company and its Subsidiaries (including, for the avoidance of doubt,
+noncontrolling interests), Consolidated in accordance with GAAP (excluding for
+this purpose the impact of accumulated other comprehensive income or loss), in
+each case determined as of such date.
+
+ 
+
+“Continuing Director” means any member of the board of directors of the Company
+who is (i) a director of the Company on the date of this Agreement, (ii)
+nominated by the board of directors of the Company or (iii) appointed or
+otherwise approved by directors referred to in clauses (i) and (ii).
+
+ 
+
+“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.
+
+ 
+
+“Covered Entity” means any of the following:
+
+ 
+
+(i)         a “covered entity” as that term is defined in, and interpreted in
+accordance with, 12 C.F.R. § 252.82(b);
+
+ 
+
+(ii)        a “covered bank” as that term is defined in, and interpreted in
+accordance with, 12 C.F.R. § 47.3(b); or
+
+ 
+
+(iii)       a “covered FSI” as that term is defined in, and interpreted in
+accordance with, 12 C.F.R. § 382.2(b).
+
+ 
+
+“Covered Party” has the meaning assigned to it in Section 12.17.
+
+ 
+
+“Credit Party” means the Company and each other Borrower.
+
+ 
+
+“Default” means any event or condition which constitutes an Event of Default or
+which upon notice, lapse of time or both would, unless cured or waived, become
+an Event of Default.
+
+ 
+
+“Default Right” has the meaning assigned to that term in, and shall be
+interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
+applicable.
+
+ 
+
+
+
+7
+
+ 
+
+ 
+
+“Defaulting Lender” means any Lender that (a) has failed, within two Domestic
+Business Days of the date required to be funded or paid, to (i) fund all or any
+portion of its Loans, (ii) [reserved] or (iii) pay over to any Lender Party any
+other amount required to be paid by it hereunder, unless, in the case of clause
+(i) above, such Lender notifies the Administrative Agent and the Company in
+writing that such failure is the result of such Lender’s reasonable
+determination that a condition precedent to funding (specifically identified and
+including the particular default, if any) has not been satisfied, (b) has
+notified the Company or the Administrative Agent and the Company in writing, or
+has made a public statement to the effect, that it does not intend or expect to
+comply with all or any portion of its funding obligations under this Agreement
+(unless such writing or public statement indicates that such position is based
+on such Lender’s reasonable determination that a condition precedent
+(specifically identified and including the particular default, if any) to
+funding under this Agreement cannot be satisfied) or generally under other
+agreements in which it commits to extend credit, (c) has failed, within three
+Domestic Business Days after request by the Administrative Agent or the Company,
+acting in good faith, to provide a certification in writing from an authorized
+officer of such Lender that it will comply with its obligations to fund
+prospective Loans under this Agreement, provided that such Lender shall cease to
+be a Defaulting Lender pursuant to this clause (c) upon the Administrative
+Agent’s or the Company’s receipt of such certification in form and substance
+satisfactory to it, or (d) has become (or has a Parent that has become) the
+subject of a Bankruptcy Event and/or a Bail-In Action.
+
+ 
+
+“Disqualified Institution” has the meaning assigned to such term in Section
+12.04.
+
+ 
+
+“Documentation Agents” means each of Citibank, N.A., HSBC Bank USA, N.A. and ING
+Bank N.V., Dublin Branch in its capacity as documentation agent in respect of
+this Agreement.
+
+ 
+
+“Dollars” or “$” refers to lawful money of the United States of America.
+
+ 
+
+“Dollar Amount” of any amount of any currency means, at the time of
+determination thereof, (a) if such amount is expressed in Dollars, such amount,
+(b) if such amount is expressed in an Alternative Currency, the equivalent of
+such amount in Dollars determined by using the rate of exchange for the purchase
+of Dollars with such Alternative Currency last provided (either by publication
+or otherwise provided to the Administrative Agent) by the applicable Reuters
+source on the Business Day (New York City time) immediately preceding the date
+of determination or if such service ceases to be available or ceases to provide
+a rate of exchange for the purchase of Dollars with such Alternative Currency,
+as provided by such other publicly available information service which provides
+that rate of exchange at such time in place of Reuters chosen by the
+Administrative Agent in its reasonable discretion (or if such service ceases to
+be available or ceases to provide such rate of exchange, the equivalent of such
+amount in Dollars as reasonably determined by the Administrative Agent, in
+consultation with the Company, using any reasonable method of determination it
+deems reasonably appropriate) and (c) if such amount is denominated in any other
+currency, the equivalent of such amount in Dollars as reasonably determined by
+the Administrative Agent, in consultation with the Company, using any reasonable
+method of determination it deems reasonably appropriate.
+
+ 
+
+“Dollar-Denominated Loan” means a Loan that is made in Dollars.
+
+ 
+
+
+
+8
+
+ 
+
+ 
+
+“Dollar-Denominated Revolving Borrowing” means a Revolving Borrowing denominated
+in Dollars.
+
+ 
+
+“Domestic Business Day” means any day except a Saturday, Sunday or other day on
+which commercial banks in New York City are authorized by law to close.
+
+ 
+
+“Domestic Lending Office” means, as to each Lender, its office located at its
+address set forth in its Administrative Questionnaire (or identified in its
+Administrative Questionnaire as its Domestic Lending Office) or such other
+office as such Lender may hereafter designate as its Domestic Lending Office by
+notice to the Company and the Administrative Agent.
+
+ 
+
+“DQ List” has the meaning assigned to such term in Section 12.04(g)(iv).
+
+ 
+
+“EEA Financial Institution” means (a) any institution or firm established in any
+EEA Member Country which is subject to the supervision of an EEA Resolution
+Authority, (b) any entity established in an EEA Member Country which is a parent
+of an institution described in clause (a) of this definition, or (c) any
+financial institution established in an EEA Member Country which is a subsidiary
+of an institution described in clauses (a) or (b) of this definition and is
+subject to consolidated supervision with its parent.
+
+ 
+
+“EEA Member Country” means any of the member states of the European Union,
+Iceland, Liechtenstein, and Norway.
+
+ 
+
+“EEA Resolution Authority” means any public administrative authority or any
+person entrusted with public administrative authority of any EEA Member Country
+(including any delegee) having responsibility for the resolution of any EEA
+Financial Institution.
+
+ 
+
+“Effective Date” means the date on which the conditions specified in Section
+4.01 are satisfied (or waived in accordance with Section 12.02).
+
+ 
+
+“Election to Participate” means an Election to Participate substantially in the
+form of Exhibit D.
+
+ 
+
+“Election to Terminate” means an Election to Terminate substantially in the form
+of Exhibit E.
+
+ 
+
+“Electronic Signature” means an electronic sound, symbol, or process attached
+to, or associated with, a contract or other record and adopted by a Person with
+the intent to sign, authenticate or accept such contract or record.
+
+ 
+
+“Eligible Subsidiary” means any Wholly-Owned Consolidated Subsidiary organized
+under the laws of an Approved Jurisdiction (i) as to which an Election to
+Participate shall have been delivered to the Administrative Agent and approved
+and countersigned by the Administrative Agent and each Lender pursuant to
+Section 4.03(e) and (ii) as to which an Election to Terminate with respect to
+such Election to Participate shall not have been delivered to the Administrative
+Agent. Each such Election to Participate and Election to Terminate shall be duly
+executed on behalf of such Wholly-Owned Consolidated Subsidiary and the Company
+in such number of copies as the Administrative Agent may request. If at any time
+a Subsidiary theretofore designated as an Eligible Subsidiary no longer
+qualifies as a Wholly-Owned Consolidated Subsidiary, the Company shall cause to
+be delivered to the Administrative Agent an Election to Terminate terminating
+the status of such Subsidiary as an Eligible Subsidiary. The delivery of an
+Election to Terminate shall not affect any obligation of an Eligible Subsidiary
+theretofore incurred or the Company’s guarantee thereof. The Administrative
+Agent shall promptly give notice to the Lenders of the receipt of any Election
+to Participate or Election to Terminate.
+
+ 
+
+
+
+9
+
+ 
+
+ 
+
+“Environmental Laws” means all laws, rules, regulations, codes, ordinances,
+orders, decrees, judgments, injunctions, notices or binding agreements issued,
+promulgated or entered into by any Governmental Authority, relating in any way
+to the environment, preservation or reclamation of natural resources, or the
+management, release or threatened release of any Hazardous Material.
+
+ 
+
+“Environmental Liability” means any liability, contingent or otherwise
+(including any liability for damages, costs of environmental remediation, fines,
+penalties or indemnities), of the Company or any Subsidiary 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 shares of capital stock, partnership interests,
+membership interests in a limited liability company, beneficial interests in a
+trust or other equity ownership interests in a Person, and any warrants, options
+or other rights entitling the holder thereof to purchase or acquire any such
+equity interest.
+
+ 
+
+“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
+from time to time.
+
+ 
+
+“ERISA Affiliate” means any trade or business (whether or not incorporated)
+that, together with the Company, is treated as a single employer under
+Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of
+ERISA and Section 412 of the Code, is treated as a single employer under Section
+414 of the Code.
+
+ 
+
+“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of
+ERISA or the regulations issued thereunder with respect to a Plan (other than an
+event for which the 30-day notice period is waived), (b) the filing pursuant to
+Section 412(c) of the Code or Section 302(c) of ERISA of an application for a
+waiver of the minimum funding standard with respect to any Plan, (c) the
+incurrence by the Company or any of its ERISA Affiliates of any liability under
+Title IV of ERISA with respect to the termination of any Plan, (d) the receipt
+by the Company or any ERISA Affiliate from the PBGC or a plan administrator of
+any notice relating to an intention to terminate any Plan or Plans or to appoint
+a trustee to administer any Plan, (e) the incurrence by the Company or any of
+its ERISA Affiliates of any liability with respect to the withdrawal or partial
+withdrawal from any Plan or Multiemployer Plan, (f) the receipt by the Company
+or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
+from the Company or any ERISA Affiliate of any notice, concerning the imposition
+of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
+expected to be, “insolvent” within the meaning of Title IV of ERISA or in
+“endangered” or in “critical” status within the meaning of Section 432 of the
+Code or Section 305 of ERISA; (g) a determination that any Plan is or is
+reasonably expected to be in “at risk” status (within the meaning of Section 430
+of the Code or Section 303 of ERISA); (h) the conditions contained in Section
+303(k)(1)(A) of ERISA for imposition of a lien shall have been met with respect
+to any Plan; (i) the cessation of operations at a facility of the Company or any
+ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; or
+(j) a Foreign Plan Event.
+
+ 
+
+
+
+10
+
+ 
+
+ 
+
+“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
+published by the Loan Market Association (or any successor Person), as in effect
+from time to time.
+
+ 
+
+“Euro-Currency”, when used in reference to any Loan or Borrowing, refers to
+whether such Loan, or the Loans comprising such Borrowing, are bearing interest
+at a rate determined by reference to the Adjusted LIBO Rate (except pursuant to
+clause (c) of the definition of “Alternate Base Rate”).
+
+ 
+
+“Euro-Currency Business Day” means a Euro-Dollar Business Day; provided that,
+when used in connection with an Alternative Currency Loan denominated in an
+Alternative Currency, the term “Euro-Currency Business Day” shall exclude any
+day on which banks are not open for dealings in deposits in the applicable
+currency in the London interbank market.
+
+ 
+
+“Euro-Currency Lending Office” means, as to each Lender, its office, branch or
+affiliate located at its address set forth in its Administrative Questionnaire
+(or identified in its Administrative Questionnaire as its Euro-Currency Lending
+Office) or such other office, branch or affiliate of such Lender as it may
+hereafter designate as its Euro-Currency Lending Office by notice to the Company
+and the Administrative Agent; provided that any Lender may from time to time by
+notice to the Borrower and the Administrative Agent designate separate
+Euro-Currency Lending Offices for its Loans in different currencies and/or to
+different Borrowers, in which case all references herein to the Euro-Currency
+Lending Office of such Lender shall be deemed to refer to any or all of such
+offices, as the context may require.
+
+ 
+
+“Euro-Currency Loan” means a Euro-Dollar Loan or an Alternative Currency Loan.
+
+ 
+
+“Euro-Currency Margin” means the applicable rate determined in accordance with
+Section 2.21.
+
+ 
+
+“Euro-Dollar”, when used in reference to any Loan or Borrowing made in Dollars,
+refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
+interest at a rate determined by reference to the Adjusted LIBO Rate (except
+pursuant to clause (c) of the definition of “Alternate Base Rate”).
+
+ 
+
+“Euro-Dollar Business Day” means any Domestic Business Day on which commercial
+banks are open for international business (including dealings in Dollar
+deposits) in London.
+
+ 
+
+“Event of Default” has the meaning assigned to such term in Article 8.
+
+ 
+
+
+
+11
+
+ 
+
+ 
+
+“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or
+any other recipient of any payment to be made by or on account of any obligation
+of any Borrower under any Loan Document, (a) income or franchise taxes imposed
+on (or measured by) its net income by the United States or by the jurisdiction
+under the laws of which such recipient is organized or in which its principal
+office is located or, in the case of any Lender, in which its Applicable Lending
+Office is located, (b) any branch profits taxes imposed by the United States of
+America, or any similar tax imposed by any other jurisdiction described in
+clause (a) above, (c) in the case of a Foreign Lender (other than an assignee
+pursuant to a request by the Company under Section 2.19(b)), any withholding tax
+that (i) is imposed on amounts payable to such Foreign Lender at the time such
+Foreign Lender becomes a party to this Agreement (or designates a new Applicable
+Lending Office), except to the extent that such Foreign Lender (or its assignor,
+if any) was entitled, at the time of designation of a new Applicable Lending
+Office (or assignment), to receive additional amounts from any Borrower with
+respect to such withholding tax pursuant to Section 2.16(a) or (ii) is
+attributable to such Foreign Lender’s failure to comply with Section 2.16(e),
+(f) and (g), and (d) Taxes resulting from FATCA.
+
+ 
+
+“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, any agreement entered into
+pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory
+legislation, rules or practices adopted pursuant to any intergovernmental
+agreement, treaty or convention among Governmental Authorities and implementing
+such Sections of the Code.
+
+ 
+
+“Federal Funds Effective Rate” means, for any day, the rate calculated by the
+NYFRB based on such day’s federal funds transactions by depositary institutions,
+as determined in such manner as shall be set forth on the Federal Reserve Bank
+of New York’s Website from time to time, and published on the next succeeding
+Euro-Dollar Business Day by the NYFRB as the effective federal funds rate;
+provided that if the Federal Funds Effective Rate as so determined would be less
+than zero, such rate shall be deemed to be zero for the purposes of this
+Agreement.
+
+ 
+
+“Federal Reserve Bank of New York’s Website” means the website of the NYFRB at
+http://www.newyorkfed.org, or any successor source.
+
+ 
+
+“Financial Officer” means the chief financial officer, principal accounting
+officer, treasurer or assistant treasurer.
+
+ 
+
+“Foreign Lender” means any Lender that is organized under the laws of a
+jurisdiction outside the United States.
+
+ 
+
+“Foreign Plan” shall mean any benefit plan maintained or contributed to by the
+Company or any Subsidiary that, under applicable law other than the laws of the
+United States or any political subdivision thereof, is required to be funded
+through a trust or other funding vehicle other than a trust or funding vehicle
+maintained exclusively by a Governmental Authority.
+
+ 
+
+
+
+12
+
+ 
+
+ 
+
+“Foreign Plan Event” shall mean, with respect to any Foreign Plan, (a) the
+existence of unfunded liabilities in excess of the amount permitted under any
+applicable law, or in excess of the amount that would be permitted absent a
+waiver from a Governmental Authority; (b) the failure to make the required
+contributions or payments, under any applicable law, on or before the due date
+for such contributions or payments; (c) the receipt of a notice by a
+Governmental Authority relating to the intention to terminate any such Foreign
+Plan or to appoint a trustee or similar official to administer any such Foreign
+Plan, or alleging the insolvency of any such Foreign Plan; (d) the incurrence of
+any liability by the Company or any Subsidiary under applicable law on account
+of the complete or partial termination of such Foreign Plan or the complete or
+partial withdrawal of any participating employer therein; or (e) the occurrence
+of any transaction that is prohibited under any applicable law and that could
+reasonably be expected to result in the incurrence of any liability by the
+Company or any Subsidiary, or the imposition on the Company or any Subsidiary of
+any fine, excise tax or penalty resulting from any noncompliance with any
+applicable law.
+
+ 
+
+“GAAP” means generally accepted accounting principles in the United States as
+described in Section 1.04.
+
+ 
+
+“Governmental Authority” means the government of the United States of America,
+any other nation, any supranational body or any political subdivision thereof,
+whether state or local, and any agency, authority, instrumentality, regulatory
+body, court, central bank or other entity exercising executive, legislative,
+judicial, taxing, regulatory or administrative powers or functions of or
+pertaining to government, including any applicable supranational bodies (such as
+the European Union or the European Central Bank).
+
+ 
+
+“Guarantee” of or by any Person means, without duplication, any obligation,
+contingent or otherwise, of such Person guaranteeing or having the economic
+effect of guaranteeing any Indebtedness of any other Person (the “primary
+obligor”) in any manner, whether directly or indirectly, and including any
+obligation of such Person, direct or indirect, (a) to purchase or pay (or
+advance or supply funds for the purchase or payment of) such Indebtedness or to
+purchase (or to advance or supply funds for the purchase of) any security for
+the payment of such Indebtedness, (b) to purchase property, securities or
+services for the purpose of assuring the owner of such Indebtedness of the
+payment of such Indebtedness or (c) to maintain working capital, equity capital
+or other financial statement condition or liquidity of the primary obligor so as
+to enable the primary obligor to pay such Indebtedness; provided, however, that
+the term “Guarantee” shall not include endorsements for collection or deposit in
+the ordinary course of business. It is understood and agreed that the amount of
+any Guarantee of or by any Person shall be deemed to be the lower of (a) the
+amount of Indebtedness in respect of which such Guarantee exists and (b) the
+maximum amount for which such Person may be liable pursuant to the terms of the
+instrument embodying such Guarantee.
+
+ 
+
+“Hazardous Materials” means all explosive or radioactive substances or wastes
+and all hazardous or toxic substances, wastes or other pollutants, including
+petroleum or petroleum distillates, asbestos or asbestos containing materials,
+polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
+substances or wastes of any nature regulated pursuant to any Environmental Law.
+
+ 
+
+“IBA” has the meaning assigned to such term in Section 1.06.
+
+ 
+
+
+
+13
+
+ 
+
+ 
+
+“Impacted Interest Period” has the meaning assigned to such term in the
+definition of “LIBO Rate”.
+
+ 
+
+“Indebtedness” of any Person means, without duplication, (a) all obligations of
+such Person for borrowed money, (b) all obligations of such Person evidenced by
+bonds, debentures, notes or similar instruments, (c) all obligations of such
+Person under conditional sale or other title retention agreements relating to
+property or assets purchased by such Person, (d) all obligations of such Person
+issued or assumed as the deferred purchase price of property or services, (e)
+all Indebtedness of others secured by (or for which the holder of such
+Indebtedness has an existing right, contingent or otherwise, to be secured by)
+any Lien on property owned or acquired by such Person, whether or not the
+obligations secured thereby have been assumed, (f) all Guarantees by such Person
+of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
+all obligations of such Person as an account party in respect of letters of
+credit and bankers’ acceptances and (i) net obligations under Swap Agreements.
+The Indebtedness of any Person shall also include the Indebtedness of any
+partnership in which such Person is a general partner, except to the extent that
+recourse against such general partner (as a general partner) has been
+contractually waived or limited. Notwithstanding the foregoing, the term
+“Indebtedness”, in respect of the Company and its Subsidiaries, shall not
+include (i) deferred compensation and employee benefit obligations for officers
+and employees of the Company or any of its Subsidiaries, (ii) trade and similar
+payables and accrued expenses or liabilities incurred in the ordinary course of
+business, (iii) any customary earnout or holdback in connection with an
+acquisition not prohibited by this Agreement, (iv) any obligations in respect of
+customer advances held in the ordinary course of business, (v) performance
+bonds, performance guarantees or similar obligations (or contingent
+reimbursement obligations in respect of bank guarantees or letters of credit in
+lieu thereof) entered into in the ordinary course of business, (vi) any
+Indebtedness that has been discharged and/or defeased, provided that funds in an
+amount equal to all such Indebtedness (including interest and any other amounts
+required to be paid to the holders thereof in order to give effect to such
+discharge and/or defeasance) have been irrevocably deposited with a trustee for
+the benefit of the relevant holders of such Indebtedness or (vii) interest,
+fees, make-whole amounts, premiums, charges or expenses, if any, relating to the
+principal amount of Indebtedness. If any Indebtedness is limited to recourse
+against a particular asset or assets of a Person, the amount of the
+corresponding Indebtedness shall be equal to the lesser of the amount of such
+Indebtedness and the fair market value of such asset or assets, as determined by
+the Company in good faith, at the date for determination of the amount of such
+Indebtedness. For all purposes of this Agreement, the amount of Indebtedness of
+the Company and its Subsidiaries shall be calculated without duplication of
+guaranty obligations of the Company or any Subsidiary in respect thereof.
+
+ 
+
+“Indemnified Taxes” means Taxes, other than Excluded Taxes, imposed on or with
+respect to any payment made by or on account of any obligation of any Borrower
+under this Agreement.
+
+ 
+
+“Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or
+its Lender Parent, (c) the Company, any of its Subsidiaries or any of its
+Affiliates, (d) a company, investment vehicle or trust for, or owned and
+operated for the primary benefit of, a natural person or relative(s) thereof or
+(e) a Disqualified Institution.
+
+  
+
+14
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+“Interest Election Request” means a request by the Borrower to convert or
+continue a Borrowing in accordance with Section 2.07.
+
+ 
+
+“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of
+each March, June, September and December and (b) with respect to any
+Euro-Currency Loan, the last day of the Interest Period applicable to the
+Borrowing of which such Loan is a part and, in the case of a Euro-Currency
+Borrowing with an Interest Period of more than three months’ duration, each day
+prior to the last day of such Interest Period that occurs at intervals of three
+months’ duration after the first day of such Interest Period.
+
+ 
+
+“Interest Period” means, with respect to any Euro-Currency Borrowing, the period
+commencing on the date of such Borrowing and ending on the same day of the next
+week (herein, a “weekly period”) or on the numerically corresponding day in the
+calendar month that is one, two, three, or six months, or (subject to the
+availability to each Lender of matching deposits for such periods in the London
+interbank market) twelve months thereafter, as the Borrower may elect; provided
+that: (a) if any Interest Period would end on a day other than a Euro-Currency
+Business Day, such Interest Period shall be extended to the next succeeding
+Euro-Currency Business Day unless (except in the case of a weekly period) such
+next succeeding Euro-Currency Business Day would fall in the next calendar
+month, in which case such Interest Period shall end on the next preceding
+Euro-Currency Business Day; and (b) any Interest Period (other than a weekly
+period) pertaining to a Euro-Currency Borrowing that commences on the last
+Euro-Currency Business Day of a calendar month (or on a day for which there is
+no numerically corresponding day in the last calendar month of such Interest
+Period) shall end on the last Euro-Currency Business Day of the last calendar
+month of such Interest Period. For purposes hereof, the date of a Borrowing
+initially shall be the date on which such Borrowing is made and thereafter,
+other than for purposes of Section 4.02, shall be the effective date of the most
+recent conversion or continuation of such Borrowing.
+
+ 
+
+“Interpolated Rate” means, at any time, for any Interest Period, the rate per
+annum determined by the Administrative Agent (which determination shall be
+conclusive and binding absent demonstrable error) to be equal to the rate that
+results from interpolating on a linear basis between: (a) the LIBO Screen Rate
+for the longest period (for which the LIBO Screen Rate is available for the
+applicable currency) that is shorter than the Impacted Interest Period; and (b)
+the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is
+available for the applicable currency) that exceeds the Impacted Interest
+Period, in each case, at such time; provided that if any Interpolated Rate shall
+be less than 0.50%, such rate shall be deemed to be 0.50% for the purposes of
+this Agreement.
+
+ 
+
+“JPMCB” means JPMorgan Chase Bank, N.A., a national banking association.
+
+ 
+
+“Lender Party” means the Administrative Agent or any other Lender.
+
+ 
+
+“Lenders” means the Persons listed on Schedule 2.01 and any other Person that
+shall have become a party hereto pursuant to an Assignment and Assumption or
+other documentation contemplated hereby, other than any such Person that ceases
+to be a party hereto pursuant to an Assignment and Assumption or other
+documentation contemplated hereby.
+
+ 
+
+
+
+15
+
+ 
+
+ 
+
+“LIBO Rate” means, with respect to any Euro-Currency Borrowing for any Interest
+Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two
+Euro-Currency Business Days prior to the commencement of such Interest Period,
+as the rate for deposits in Dollars or the relevant Alternative Currency with a
+maturity comparable to such Interest Period; provided that if the LIBO Screen
+Rate shall not be available for such Interest Period for such currency at such
+time (an “Impacted Interest Period”) but rates are then available on the Screen
+for other periods for such currency, then the LIBO Rate shall be the
+Interpolated Rate; provided that if any LIBO Rate determined in accordance with
+the foregoing shall be less than 0.50%, the LIBO Rate shall be deemed to be
+0.50% for all purposes of this Agreement.
+
+ 
+
+“LIBO Screen Rate” means, for any day and time, with respect to any
+Euro-Currency Borrowing for any Interest Period, the London interbank offered
+rate as administered by ICE Benchmark Administration (or any other Person that
+takes over the administration of such rate) for the applicable currency for a
+period equal in length to such Interest Period as displayed on such day and time
+on pages LIBOR01 or LIBOR02 of the Reuters Screen that displays such rate (or,
+in the event such rate does not appear on a Reuters page or Screen, on any
+successor or substitute page on such screen that displays such rate, or on the
+appropriate page of such other information service that publishes such rate from
+time to time as selected by the Administrative Agent in its reasonable
+discretion), provided that if the LIBO Screen Rate as so determined would be
+less than 0.50%, such rate shall be deemed to be 0.50% for the purposes of this
+Agreement.
+
+ 
+
+“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
+pledge, hypothecation, encumbrance, charge or security interest in or on such
+asset and (b) the interest of a vendor or a lessor under any conditional sale
+agreement, capital lease or title retention agreement (or any financing lease
+having substantially the same economic effect as any of the foregoing) relating
+to such asset, but excluding, for the avoidance of doubt, any operating lease.
+
+ 
+
+“Loan Documents” means this Agreement, any amendment thereto, each Election to
+Participate and any promissory notes issued to any Lender hereunder.
+
+ 
+
+“Loans” means the loans made by the Lenders to the Borrowers pursuant to this
+Agreement.
+
+ 
+
+“Material Acquisition” means any acquisition if the aggregate consideration paid
+or to be paid (including liabilities to be assumed as part of the purchase
+consideration) by the Company or a Subsidiary in respect of such acquisition is
+equal to or greater than $350,000,000.
+
+ 
+
+“Material Adverse Effect” means a material adverse effect on (a) the business,
+assets, operations or financial condition of the Company and the Subsidiaries
+taken as a whole, (b) the ability of the Company to perform any of its material
+obligations under the Loan Documents or (c) the validity or enforceability of,
+or the rights of or remedies available to the Lenders under, the Loan Documents;
+provided, however, that events, circumstances, changes, effects or conditions
+with respect to the Company and its Subsidiaries disclosed in any Form 10-K,
+Form 10-Q or Form 8-K filed by the Company with the Securities and Exchange
+Commission prior to the Effective Date shall not constitute a “Material Adverse
+Effect” to the extent so disclosed.
+
+ 
+
+
+
+16
+
+ 
+
+ 
+
+“Maturity Date” means April 30, 2021.
+
+ 
+
+“Moody’s” means Moody’s Investors Service, Inc.
+
+ 
+
+“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3)
+of ERISA to which the Company or any ERISA Affiliate contributes or with respect
+to which the Company or any ERISA Affiliate has any liability.
+
+ 
+
+“Net Cash Proceeds” means, with respect to any Specified Equity or Specified
+Indebtedness, as applicable, (a) the cash proceeds received in respect of such
+Specified Equity or Specified Indebtedness, as applicable, (other than from the
+Company or any of its Subsidiaries) including any cash received in respect of
+any non-cash proceeds, but only as and when received, net of (b) the sum of (i)
+all fees, commissions, costs and other expenses incurred in connection with such
+Specified Equity or Specified Indebtedness, as applicable, (excluding amounts
+paid to Affiliates), including any legal, accounting and investment banking
+fees, underwriting discounts and fees, commissions, costs and other expenses
+incurred by the Company and/or its Subsidiaries in connection with the
+incurrence, issuance, offering or placement of such Specified Equity or
+Specified Indebtedness, as applicable, (ii) the amount of all taxes paid (or
+reasonably estimated by the Company to be payable) during the year that such
+Specified Equity or Specified Indebtedness was issued or the next succeeding
+year and that are directly attributable to such issuance (after taking into
+account any available tax credit or deductions), (iii) any repatriation costs
+associated with the receipt by the applicable taxpayer of such proceeds, and
+(iv) any costs associated with unwinding any related Swap Agreement in
+connection with the repayment of indebtedness at the time of the issuance of
+such Specified Indebtedness; provided, however, that the amount determined
+pursuant to the foregoing shall be reduced, in the case of any Net Cash Proceeds
+received by a joint venture Subsidiary, by the amount attributable to (and not
+available for distribution to, or for the account of, the Company or a
+Wholly-Owned Consolidated Subsidiary) noncontrolling interests in such joint
+venture Subsidiary owned by any Person other than the Company or any of its
+Subsidiaries.
+
+ 
+
+“Net Debt to Total Capital Ratio” has the meaning assigned to such term in
+Section 7.01.
+
+ 
+
+“NYFRB” means the Federal Reserve Bank of New York.
+
+ 
+
+“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective
+Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on
+such day (or for any day that is not a Euro-Currency Business Day, for the
+immediately preceding Euro-Currency Business Day); provided that if none of such
+rates are published for any day that is a Euro-Currency Business Day, the term
+“NYFRB Rate” means the rate quoted for such day for a federal funds transaction
+quoted at 11:00 a.m., New York City time, on such day received by the
+Administrative Agent from a federal funds broker unaffiliated with the
+Administrative Agent of recognized standing selected by it; provided, further,
+that if any of the aforesaid rates as so determined would be less than zero,
+such rate shall be deemed to be zero for purposes of this Agreement.
+
+ 
+
+
+
+17
+
+ 
+
+ 
+
+“Other Taxes” means any and all present or future stamp, documentary, or filing
+taxes or any other excise or property taxes, charges or similar levies arising
+from any payment made under any Loan Document or from the execution, delivery or
+enforcement of or registration of, or otherwise with respect to, any Loan
+Document.
+
+ 
+
+“Overnight Bank Funding Rate” means, for any day, the rate comprised of both
+overnight federal funds and overnight Euro-Currency borrowings by U.S.-managed
+banking offices of depository institutions, as such composite rate shall be
+determined by the NYFRB as set forth on the Federal Reserve Bank of New York’s
+Website from time to time, and published on the next succeeding Euro-Dollar
+Business Day by the NYFRB as an overnight bank funding rate.
+
+ 
+
+“Parent” means, with respect to any Lender, any Person as to which such Lender
+is, directly or indirectly, a subsidiary.
+
+ 
+
+“Participant” has the meaning set forth in Section 12.04(c).
+
+ 
+
+“Participant Register” has the meaning assigned to such term in Section
+12.04(c).
+
+ 
+
+“Participating Member States” means those members of the European Union from
+time to time which adopt a single, shared currency.
+
+ 
+
+“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in
+ERISA and any successor entity performing similar functions.
+
+ 
+
+“Person” means any natural person, corporation, limited liability company,
+trust, joint venture, association, company, partnership, Governmental Authority
+or other entity.
+
+ 
+
+“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
+subject to the provisions of Title IV of ERISA, and in respect of which the
+Company or any ERISA Affiliate is (or, if such plan were terminated, would under
+Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5)
+of ERISA.
+
+ 
+
+“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by
+Section 3(42) of ERISA, as amended from time to time.
+
+ 
+
+“Pound Sterling” means the lawful currency of the United Kingdom.
+
+ 
+
+“Prime Rate” means the rate of interest last quoted by The Wall Street Journal
+as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote
+such rate, the highest per annum interest rate published by the Board in Federal
+Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank
+prime loan” rate or, if such rate is no longer quoted therein, any similar rate
+quoted therein (as determined reasonably and in good faith by the Administrative
+Agent) or any similar release by the Board (as determined reasonably and in good
+faith by the Administrative Agent). Each change in the Prime Rate shall be
+effective from and including the date such change is publicly announced or
+quoted as being effective.
+
+ 
+
+
+
+18
+
+ 
+
+ 
+
+“Priority Indebtedness” shall mean, at any time, without duplication, (i) the
+aggregate principal amount of all Indebtedness of the Company then outstanding
+which Indebtedness is secured by Liens on property and assets of the Company or
+any Subsidiary (other than Indebtedness secured by Liens described in (a)
+through (l) of Section 6.01), and (ii) the aggregate principal amount of all
+outstanding Indebtedness of all Subsidiaries (other than (x) Indebtedness
+hereunder, (y) Indebtedness of Subsidiaries payable to the Company or any
+Wholly-Owned Consolidated Subsidiary and (z) any unsecured Guarantee of
+Indebtedness issued by the Company; provided that such Subsidiary shall also
+have guaranteed the obligations hereunder on or prior to the date on which such
+Guarantee is given).
+
+ 
+
+“PTE” means a prohibited transaction class exemption issued by the U.S.
+Department of Labor, as any such exemption may be amended from time to time.
+
+ 
+
+“QFC” has the meaning assigned to the term “qualified financial contract” in,
+and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
+
+ 
+
+“QFC Credit Support” has the meaning assigned to it in Section 12.17.
+
+ 
+
+“Register” has the meaning set forth in Section 12.04(b)(iv).
+
+ 
+
+“Regulation D” shall mean Regulation D of the Board, as the same is from time to
+time in effect, and all official rulings and interpretations thereunder or
+thereof.
+
+ 
+
+“Regulation U” shall mean Regulation U of the Board, as from time to time in
+effect, and all official rulings and interpretations thereunder or thereof.
+
+ 
+
+“Regulation X” shall mean Regulation X of the Board, as from time to time in
+effect, and all official rulings and interpretations thereunder or thereof.
+
+ 
+
+“Related Parties” means, with respect to any specified Person, such Person’s
+Affiliates and the respective directors, officers, employees, agents and
+advisors of such Person and such Person’s Affiliates.
+
+ 
+
+“Replacement Lender” has the meaning assigned to such term in Section 2.08(c).
+
+ 
+
+“Required Lenders” means, subject to Section 2.23, (a) at any time prior to the
+earlier of the Loans becoming due and payable pursuant to Article 8 or the
+Commitments terminating or expiring, Lenders having Revolving Credit Exposures
+and Unfunded Commitments representing more than 50% of the sum of the Total
+Revolving Credit Exposure and Unfunded Commitments at such time, provided that,
+solely for purposes of declaring the Loans to be due and payable pursuant to
+Article 8, the Unfunded Commitment of each Lender shall be deemed to be zero;
+and (b) for all purposes after the Loans become due and payable pursuant to
+Article 8 or the Commitments expire or terminate, Lenders having Revolving
+Credit Exposures representing more than 50% of the Total Revolving Credit
+Exposure; provided that, in the case of clauses (a) and (b) above, for the
+purpose of determining the Required Lenders needed for any waiver, amendment,
+modification or consent of or under this Agreement or any other Loan Document,
+any Lender that is the Company or an Affiliate of the Borrower shall be
+disregarded.
+
+ 
+
+
+
+19
+
+ 
+
+ 
+
+“Resolution Authority” means an EEA Resolution Authority or, with respect to any
+UK Financial Institution, a UK Resolution Authority.
+
+ 
+
+“Retired Commitments” has the meaning assigned to such term in Section 2.08(c).
+
+ 
+
+“Reuters” means Thomson Reuters Corp., Refinitiv or any successor thereto.
+
+ 
+
+“Revolving Credit Exposure” means, with respect to any Lender at any time, the
+outstanding Dollar Amount of such Lender’s Revolving Loans at such time.
+
+ 
+
+“Revolving Loan” means a Loan made pursuant to Section 2.03.
+
+ 
+
+“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global
+Inc.
+
+ 
+
+“Sanctioned Country” means, at any time, a country, region or territory which is
+itself the subject or target of any Sanctions.
+
+ 
+
+“Sanctioned Person” means, at any time, (a) any Person listed in any
+Sanctions-related list of designated Persons maintained by the Office of Foreign
+Assets Control of the U.S. Department of the Treasury, the U.S. Department of
+State or by the United Nations Security Council, the European Union, Her
+Majesty’s Treasury of the United Kingdom or Canada, (b) any Person organized or
+resident in a Sanctioned Country in violation of Sanctions and (c) any Person
+50% or greater owned or controlled by any such Person or Persons described in
+the foregoing clauses (a) or (b).
+
+ 
+
+“Sanctions” means economic or financial sanctions or trade embargoes imposed,
+administered or enforced from time to time by (a) the U.S. government, including
+those administered by the Office of Foreign Assets Control of the U.S.
+Department of the Treasury or the U.S. Department of State, or (b) the United
+Nations Security Council, the European Union, Canada or Her Majesty’s Treasury
+of the United Kingdom.
+
+ 
+
+“Screen” means (a) with respect to Dollar-Denominated Loans, the Reuters
+“LIBOR01” screen displaying the London interbank offered rate as administered by
+ICE Benchmark Administration and (b) with respect to Alternative Currency Loans,
+the Reuters screen selected by the Administrative Agent that displays rates for
+interbank deposits in the appropriate Alternative Currency or, in the case of
+either (a) or (b), any successor or substitute screen provided by Reuters, or
+any successor to or substitute for such service, providing rate quotations
+comparable to those currently provided on such screen, as determined by the
+Administrative Agent from time to time in its reasonable discretion (and
+consistent with any such determination by the Administrative Agent generally
+under substantially similar credit facilities for which it acts as
+administrative agent) for purposes of providing quotations of interest rates
+applicable to deposits in the London interbank market.
+
+ 
+
+“Significant Subsidiary” means any Subsidiary (which term, as used in this
+definition, includes such Subsidiary’s subsidiaries) which meets any of the
+following conditions:
+
+ 
+
+
+
+20
+
+ 
+
+ 
+
+(i)       the Company’s and the other Subsidiaries’ outstanding investments in
+and advances to such Subsidiary exceed 10% of the Consolidated total assets of
+the Company, in each case as of the end of the most recently completed fiscal
+year of the Company for which financial statements have been delivered pursuant
+to Section 5.04(a);
+
+ 
+
+(ii)       the total assets (after intercompany eliminations) of such Subsidiary
+exceed 10% of the Consolidated total assets of the Company as of the end of the
+most recently completed fiscal year of the Company for which financial
+statements have been delivered pursuant to Section 5.04(a);
+
+ 
+
+(iii)       the net sales of such Subsidiary (after intercompany eliminations)
+exceed 10% of the Consolidated net sales of the Company for the most recently
+completed fiscal year of the Company for which financial statements have been
+delivered pursuant to Section 5.04(a); or
+
+ 
+
+(iv)       any Subsidiary with or into which a Significant Subsidiary is merged
+or which has acquired all or substantially all the assets of a Significant
+Subsidiary in either case pursuant to a transaction permitted by Section 6.02;
+provided, however, that such Subsidiary shall cease to be a Significant
+Subsidiary at the time of delivery pursuant to Section 5.04(a) of financial
+statements covering the fiscal year in which such transaction occurred unless
+one of the conditions set forth in clauses (i), (ii) or (iii) above is satisfied
+with respect to such Subsidiary.
+
+ 
+
+“Specified Equity” means any equity interests in any underwritten offering or
+private placement (other than (i) pursuant to any employee equity compensation
+plan or agreement or other employee equity compensation arrangement, any
+employee benefit plan or agreement or other employee benefit arrangement or any
+nonemployee director equity compensation plan or agreement or other non-employee
+director equity compensation arrangement or pursuant to the exercise or vesting
+of any employee or director stock options, restricted stock or restricted stock
+units, warrants or other equity awards, pursuant to dividend reinvestment
+programs, or in respect of contributions to pension funds or plans, (ii) any
+such issuance by a Subsidiary of the Company to the Company or any other
+Subsidiary of the Company, (iii) securities or interests issued or transferred
+(and not constituting cash proceeds of any issuance of such securities or
+interests) as consideration for, or in connection with, any acquisition,
+divestiture or joint venture arrangement, (iv) equity issued upon conversion or
+exercise of outstanding securities or options, and (v) any issuance of such
+equity interests the Net Cash Proceeds of which do not exceed an aggregate
+amount of $50,000,000 (and then only the portion in excess of $50,000,000 shall
+be subject to any prepayment and/or mandatory commitment reduction requirement
+pursuant to Section 2.10(c))).
+
+ 
+
+“Specified Indebtedness” means any indebtedness in the form of publicly issued
+or privately placed debt securities issued in the capital markets (including
+hybrid securities and debt securities convertible into equity securities)
+pursuant to a public registered offering or Rule 144A or other private
+placement, but excluding, for the avoidance of doubt, (i) syndicated credit or
+loan facilities (for the avoidance of doubt excluding term loan B facilities),
+(ii) bilateral credit or loan facilities, (iii) commercial paper, (iv)
+sale-leaseback transactions, (v) purchase money indebtedness, capital leases
+and/or inventory financing, (vi) indebtedness incurred to refinance, extend,
+renew and/or refund any existing indebtedness due within twelve (12) months of
+the closing date (other than under this Agreement) to the extent that the
+outstanding principal amount of such existing indebtedness is not increased
+(except as grossed-up for customary fees and expenses incurred in connection
+with such refinancing, extension, renewal or refunding), and (vii) any
+incurrence of such indebtedness the Net Cash Proceeds of which do not exceed an
+aggregate amount of $50,000,000 (and then only the portion in excess of
+$50,000,000 shall be subject to any prepayment and/or mandatory commitment
+reduction requirement pursuant to Section 2.10(c)).
+
+ 
+
+
+
+21
+
+ 
+
+ 
+
+“Statutory Reserve Rate” means a fraction (expressed as a decimal), the
+numerator of which is the number one and the denominator of which is the number
+one minus the aggregate of the maximum reserve percentages (including any
+marginal, special, emergency or supplemental reserves) expressed as a decimal
+established by the Board to which the Administrative Agent is subject for
+eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
+Regulation D). Such reserve percentages shall include those imposed pursuant to
+Regulation D. Euro-Currency Loans shall be deemed to constitute eurocurrency
+funding and to be subject to such reserve requirements without benefit of or
+credit for proration, exemptions or offsets that may be available from time to
+time to any Lender under Regulation D or any comparable regulation. The
+Statutory Reserve Rate shall be adjusted automatically on and as of the
+effective date of any change in any reserve percentage.
+
+ 
+
+“subsidiary” means, with respect to any Person (herein referred to as the
+“parent”), any corporation, association or other business entity of which
+securities or other ownership interests representing more than 50% of the
+ordinary voting power are, at the time any determination is being made, owned,
+controlled or held by the parent or one or more subsidiaries of the parent.
+
+ 
+
+“Subsidiary” means any subsidiary of the Company.
+
+ 
+
+“Subsidiary Borrower” means each Eligible Subsidiary, and “Subsidiary Borrowers”
+means all or any combination of the foregoing as the context may require. For
+the avoidance of doubt and notwithstanding anything to the contrary in this
+Agreement, no Subsidiary may be or become a Subsidiary Borrower without the
+prior written consent of the Administrative Agent and each Lender.
+
+ 
+
+“Supported QFC” has the meaning assigned to it in Section 12.17.
+
+ 
+
+“Surviving Commitment” has the meaning assigned to such term in Section 2.08(c).
+
+ 
+
+“Surviving Lender” has the meaning assigned to such term in Section 2.08(c).
+
+ 
+
+“Swap Agreement” means any agreement with respect to any swap, forward, future
+or derivative transaction or option or similar agreement involving, or settled
+by reference to, one or more rates, currencies, commodities, equity or debt
+instruments or securities, or economic, financial or pricing indices or measures
+of economic, financial or pricing risk or value or any similar transaction or
+any combination of these transactions; provided that no phantom stock or similar
+plan providing for payments only on account of services provided by current or
+former directors, officers, employees or consultants of the Company or the
+Subsidiaries shall be a Swap Agreement.
+
+ 
+
+
+
+22
+
+ 
+
+ 
+
+“Syndication Agent” means Bank of America, N.A. in its capacity as syndication
+agent in respect of this Agreement.
+
+ 
+
+“Taxes” means any and all present or future taxes, levies, imposts, duties,
+deductions, charges or withholdings imposed by any Governmental Authority,
+including any interest, additions to tax or penalties applicable thereto.
+
+ 
+
+“Total Debt” means, with respect to the Company on any date, all indebtedness
+for borrowed money of the Company and its Subsidiaries, Consolidated in
+accordance with GAAP, excluding, for the avoidance of doubt, intercompany
+indebtedness.
+
+ 
+
+“Total Revolving Credit Exposure” means, at any time, the outstanding principal
+amount of the Revolving Loans at such time.
+
+ 
+
+“Trade Date” has the meaning assigned to such term in Section 12.04(g)(i).
+
+ 
+
+“Transactions” means the execution, delivery and performance by the Credit
+Parties of the Loan Documents and the borrowing of Loans hereunder.
+
+ 
+
+“Type”, when used in reference to any Loan or Borrowing, refers to whether the
+rate of interest on such Loan, or on the Loans comprising such Borrowing, is
+determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
+
+ 
+
+“UK Financial Institution” means any BRRD Undertaking (as such term is defined
+under the PRA Rulebook (as amended from time to time) promulgated by the United
+Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6
+of the FCA Handbook (as amended from time to time) promulgated by the United
+Kingdom Financial Conduct Authority, which includes certain credit institutions
+and investment firms, and certain affiliates of such credit institutions or
+investment firms.
+
+ 
+
+“UK Resolution Authority” means the Bank of England or any other public
+administrative authority having responsibility for the resolution of any UK
+Financial Institution.
+
+ 
+
+“Unfunded Commitment” means, with respect to each Lender, the Commitment of such
+Lender less its Revolving Credit Exposure.
+
+ 
+
+“United States” or “U.S.” means the United States of America, including the
+States thereof and the District of Columbia, but excluding its territories and
+possessions.
+
+ 
+
+“U.S. Special Resolution Regime” has the meaning assigned to it in Section
+12.17.
+
+ 
+
+“Wholly-Owned Consolidated Subsidiary” means any Consolidated Subsidiary all of
+the shares of capital stock or other ownership interests of which (except
+directors’ qualifying shares) are at the time owned by the Company or one or
+more Wholly-Owned Consolidated Subsidiaries.
+
+ 
+
+
+
+23
+
+ 
+
+ 
+
+“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
+complete or partial withdrawal from such Multiemployer Plan, as such terms are
+defined in Part I of Subtitle E of Title IV of ERISA.
+
+ 
+
+“Withholding Agent” has the meaning assigned to such term in Section 2.16(a).
+
+ 
+
+“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution
+Authority, the write-down and conversion powers of such EEA Resolution Authority
+from time to time under the Bail-In Legislation for the applicable EEA Member
+Country, which write-down and conversion powers are described in the EU Bail-In
+Legislation Schedule, and (b) with respect to the United Kingdom, any powers of
+the applicable Resolution Authority under the Bail-In Legislation to cancel,
+reduce, modify or change the form of a liability of any UK Financial Institution
+or any contract or instrument under which that liability arises, to convert all
+or part of that liability into shares, securities or obligations of that person
+or any other person, to provide that any such contract or instrument is to have
+effect as if a right had been exercised under it or to suspend any obligation in
+respect of that liability or any of the powers under that Bail-In Legislation
+that are related to or ancillary to any of those powers.
+
+ 
+
+Section 1.02.      Classification of Loans and Borrowings. For purposes of this
+Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving
+Loan”) or by Type (e.g., an “ABR Loan”) or by Class and Type (e.g., an “ABR
+Revolving Loan”). Borrowings also may be classified and referred to by Class
+(e.g., a “Revolving Borrowing”) or by Type (e.g., an “ABR Borrowing”) or by
+Class and Type (e.g., an “ABR Revolving Borrowing”).
+
+ 
+
+Section 1.03.      Terms Generally. The definitions of terms herein shall apply
+equally to the singular and plural forms of the terms defined. Whenever the
+context may require, any pronoun shall include the corresponding masculine,
+feminine and neuter forms. The words “include”, “includes” and “including” shall
+be deemed to be followed by the phrase “without limitation”. The word “will”
+shall be construed to have the same meaning and effect as the word “shall” and
+the word “permit” shall be construed to have the same meaning and effect as the
+word “suffer”. Unless the context requires otherwise, (a) any definition of or
+reference to any agreement, instrument or other document herein shall be
+construed as referring to such agreement, instrument or other document as from
+time to time amended, amended and restated, supplemented or otherwise modified
+(subject to any restrictions on such amendments, supplements or modifications
+set forth herein), (b) any reference herein to any Person shall be construed to
+include such Person’s successors and assigns (subject to any restrictions on
+assignment set forth herein), (c) the words “herein”, “hereof” and “hereunder”,
+and words of similar import, shall be construed to refer to this Agreement in
+its entirety and not to any particular provision hereof, (d) all references
+herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
+to Articles and Sections of, and Exhibits and Schedules to, this Agreement and
+(e) 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.
+
+ 
+
+
+
+24
+
+ 
+
+ 
+
+  
+
+Section 1.04.      Accounting Terms; GAAP. Unless otherwise specified herein,
+all accounting terms used herein shall be interpreted, all accounting
+determinations hereunder shall be made, and all financial statements required to
+be delivered hereunder shall be prepared in accordance with GAAP as in effect
+from time to time; provided that, if the Company notifies the Administrative
+Agent that the Company wishes to amend any provision hereof to eliminate the
+effect of any change in GAAP or in the application thereof (or if the
+Administrative Agent notifies the Company that the Required Lenders wish to
+amend any provision hereof for such purpose), then such provision shall be
+applied on the basis of GAAP in effect immediately before the relevant change
+became effective, until either such notice is withdrawn or such provision is
+amended in a manner satisfactory to the Company and the Required Lenders.
+Notwithstanding any other provision contained herein, all terms of an accounting
+or financial nature used herein shall be construed, and all computations of
+amounts and ratios referred to herein (including computations in respect of
+compliance with Section 7.01) shall be made (i) without giving effect to any
+election under Accounting Standards Codification 825-10-25 (or any other
+Accounting Standards Codification or Financial Accounting Standard having a
+similar result or effect) to value any Indebtedness or other liabilities of the
+Company or any Subsidiary at “fair value”, as defined therein, (ii) without
+giving effect to any treatment of Indebtedness under Accounting Standards
+Codification 470-20 or 2015-03 (or any other Accounting Standards Codification
+or Financial Accounting Standard having a similar result or effect) to value any
+such Indebtedness in a reduced or bifurcated manner as described therein, and
+such Indebtedness shall at all times be valued at the full stated principal
+amount thereof and (iii) without giving effect to any change to, or modification
+of, GAAP (including any future phase-in of changes to GAAP that have been
+approved as of December 14, 2018) which would require the capitalization of
+leases characterized as “operating leases” as of December 14, 2018 (it being
+understood and agreed, for the avoidance of doubt, financial statements
+delivered pursuant to Sections 5.04(a) and 5.04(b) shall be prepared without
+giving effect to this sentence).
+
+ 
+
+Section 1.05.      [Reserved].
+
+ 
+
+Section 1.06.      Interest Rates; LIBOR Notification. The interest rate on
+Euro-Currency Loans is determined by reference to the LIBO Rate, which is
+derived from the London interbank offered rate. The London interbank offered
+rate is intended to represent the rate at which contributing banks may obtain
+short-term borrowings from each other in the London interbank market. In July
+2017, the U.K. Financial Conduct Authority announced that, after the end of
+2021, it would no longer persuade or compel contributing banks to make rate
+submissions to the ICE Benchmark Administration (together with any successor to
+the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the
+London interbank offered rate. As a result, it is possible that commencing in
+2022, the London interbank offered rate may no longer be available or may no
+longer be deemed an appropriate reference rate upon which to determine the
+interest rate on Euro-Currency Loans. In light of this eventuality, public and
+private sector industry initiatives are currently underway to identify new or
+alternative reference rates to be used in place of the London interbank offered
+rate. In the event that the London interbank offered rate is no longer available
+or in certain other circumstances as set forth in Section 2.13(b) of this
+Agreement, such Section 2.13(b) provides a mechanism for determining an
+alternative rate of interest. The Administrative Agent will notify the Company,
+pursuant to Section 2.13, in advance of any change to the reference rate upon
+which the interest rate on Euro-Currency Loans is based. However, the
+Administrative Agent does not warrant or accept any responsibility for, and
+shall not have any liability with respect to, the administration, submission or
+availability of the London interbank offered rate or other rates in the
+definition of “LIBO Rate” or with respect to any alternative or successor rate
+thereto, or replacement rate thereof, including without limitation, whether the
+composition or characteristics of any such alternative, successor or replacement
+reference rate, as it may or may not be adjusted pursuant to Section 2.13(b),
+will be similar to, or produce the same value or economic equivalence of, the
+LIBO Rate or have the same volume or liquidity as did the London interbank
+offered rate prior to its discontinuance or unavailability (other than, for the
+avoidance of doubt, with respect to its obligation to apply the definition of
+such rate in accordance with its terms and comply with its obligations in
+Article 2 (including Section 2.13) of this Agreement).
+
+ 
+
+ 
+
+25
+
+ 
+
+
+
+Section 1.07.      Certain Calculations. No Default or Event of Default shall
+arise as a result of any limitation or threshold set forth in Dollars in
+‎Articles 6 and 8 under this Agreement being exceeded solely as a result of
+changes in currency exchange rates from those rates applicable on the last day
+of the fiscal quarter of the Company immediately preceding the fiscal quarter of
+the Company in which the applicable transaction or occurrence requiring a
+determination occurs.
+
+ 
+
+Section 1.08.      Divisions. For all purposes under the Loan Documents, in
+connection with any division or plan of division under Delaware law (or any
+comparable event under a different jurisdiction’s laws): (a) if any asset,
+right, obligation or liability of any Person becomes the asset, right,
+obligation or liability of a different Person, then it shall be deemed to have
+been transferred from the original Person to the subsequent Person, and (b) if
+any new Person comes into existence, such new Person shall be deemed to have
+been organized and acquired on the first date of its existence by the holders of
+its equity interests at such time.
+
+ 
+
+Article 2
+The Credits
+
+ 
+
+Section 2.01.      Commitments. Subject to the terms and conditions set forth
+herein, each Lender agrees to make Revolving Loans denominated in Dollars or in
+an Alternative Currency as the applicable Borrower elects pursuant to Section
+2.03 to such Borrower from time to time during the Availability Period; provided
+that, immediately after each such Loan is made, the amount of each Lender’s
+Revolving Credit Exposure shall not exceed such Lender’s Commitment. Within the
+foregoing limits and subject to the terms and conditions set forth herein, any
+Borrower may borrow, prepay and reborrow Revolving Loans.
+
+ 
+
+Section 2.02.      Loans and Borrowings. (a) Each Revolving Loan shall be made
+as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably
+in accordance with their respective Commitments. The failure of any Lender to
+make any Loan required to be made by it shall not relieve any other Lender of
+its obligations hereunder; provided that the Commitments of the Lenders are
+several and no Lender shall be responsible for any other Lender’s failure to
+make Loans as required. Each Lender may, at its option, make any Loan available
+to any foreign Subsidiary Borrower by causing any foreign or domestic branch or
+Affiliate of such Lender to make such Loan; provided that any exercise of such
+option shall not affect the obligation of such foreign Subsidiary Borrower to
+repay such Loan in accordance with the terms of this Agreement.
+
+ 
+
+(b)         Subject to Section 2.13, each Revolving Borrowing shall be comprised
+entirely of ABR Loans or Euro-Currency Loans as the Borrower may request in
+accordance herewith. Each Lender at its option may make any Euro-Currency Loan
+by causing any domestic or foreign branch or Affiliate of such Lender to make
+such Loan; provided that any exercise of such option shall not affect the
+obligation of the Borrower to repay such Loan in accordance with the terms of
+this Agreement.
+
+ 
+
+
+
+26
+
+ 
+
+ 
+
+(c)         At the time that any Revolving Borrowing is made, such Borrowing
+shall be (i) in the case of a Dollar-Denominated Revolving Borrowing, in an
+aggregate Dollar Amount that is not less than $10,000,000 and an integral
+multiple of $1,000,000 and (ii) in the case of a Borrowing denominated in an
+Alternative Currency, in an aggregate amount in such Alternative Currency that
+is not less than 10,000,000 units of such Alternative Currency and an integral
+multiple of 1,000,000 units of such Alternative Currency; provided that an ABR
+Revolving Borrowing may be in an aggregate amount that is equal to the entire
+unused balance of the total Commitments. Borrowings of more than one Type and
+Class may be outstanding at the same time; provided that there shall not at any
+time be more than a total of ten Euro-Currency Borrowings outstanding.
+
+ 
+
+(d)         Notwithstanding any other provision of this Agreement, the Borrower
+shall not be entitled to request, or to elect to convert or continue, any
+Borrowing if the Interest Period requested with respect thereto would end after
+the Maturity Date.
+
+ 
+
+Section 2.03.      Requests for Revolving Borrowings. To request a Revolving
+Borrowing, the Borrower shall notify the Administrative Agent of such request
+(a) in the case of a Euro-Dollar Borrowing, by irrevocable written notice (via a
+written Borrowing Request) not later than 11:00 a.m., New York City time, three
+Euro-Dollar Business Days before the date of the proposed Borrowing, (b) in the
+case of an Alternative Currency Borrowing, by irrevocable written notice (via a
+written Borrowing Request) not later than 11:00 a.m., New York City time, four
+Euro-Currency Business Days before the date of the proposed Borrowing or (c) in
+the case of an ABR Borrowing, by irrevocable written notice (via a written
+Borrowing Request) not later than 11:00 a.m., New York City time, on the date of
+the proposed Borrowing. Each such Borrowing Request shall specify the following
+information in compliance with Section 2.02:
+
+ 
+
+(i)             the currency and the aggregate amount (in such currency) of the
+requested Borrowing;
+
+ 
+
+(ii)            the date of such Borrowing, which shall be a Domestic Business
+Day in the case of an ABR Revolving Borrowing and a Euro-Currency Business Day
+in the case of a Euro-Currency Borrowing;
+
+ 
+
+(iii)            in the case of a Revolving Borrowing in Dollars, whether such
+Borrowing is to be an ABR Borrowing or a Euro-Dollar Borrowing;
+
+ 
+
+(iv)            in the case of a Euro-Currency Borrowing, the initial Interest
+Period to be applicable thereto, which shall be a period contemplated by the
+definition of the term “Interest Period”; and
+
+ 
+
+(v)             the location and number of the Borrower’s account to which funds
+are to be disbursed, which shall comply with the requirements of Section 2.06.
+
+ 
+
+
+
+27
+
+ 
+
+ 
+
+If no election as to the Type of Revolving Borrowing denominated in Dollars is
+specified, then the requested Revolving Borrowing shall be a Euro-Dollar
+Borrowing with an Interest Period of one month’s duration. If no Interest Period
+is specified with respect to any requested Euro-Currency Borrowing, then the
+Borrower shall be deemed to have selected an Interest Period of one month’s
+duration. Promptly following receipt of a Borrowing Request in accordance with
+this Section, the Administrative Agent shall advise each Lender of the details
+thereof and of the amount of such Lender’s Loan to be made as part of the
+requested Borrowing.
+
+ 
+
+Section 2.04.      [Reserved].
+
+ 
+
+Section 2.05.      [Reserved].
+
+ 
+
+Section 2.06.      Funding of Borrowings. (a) Each Lender shall make each Loan
+to be made by it hereunder on the proposed date thereof solely by wire transfer:
+
+ 
+
+(i)            if such Borrowing is to be made in Dollars, not later than 12:00
+noon (New York City time), in funds immediately available in New York City, to
+the account of the Administrative Agent most recently designated for such
+purpose by notice to the Lenders; or
+
+ 
+
+(ii)            if such Borrowing is to be made in an Alternative Currency, not
+later than 12:00 noon (New York City time), in such Alternative Currency (in
+such funds as may then be customary for the settlement of international
+transactions in such Alternative Currency) to the account of the Administrative
+Agent as shall have most recently been designated by the Administrative Agent
+for such purpose by notice to the Lenders.
+
+ 
+
+The Administrative Agent will make such Loans available to the Borrower by
+promptly crediting the amounts so received, in like funds, to an account of the
+Borrower designated by the Borrower in the applicable Borrowing Request.
+
+ 
+
+Each Lender may, at its option, make any Loan available to any Borrower not
+organized in the United States by causing any foreign or domestic branch or
+Affiliate of such Lender to make such Loan; provided that any exercise of such
+option shall not affect the obligation of such Borrower to repay such Loan in
+accordance with the terms of this Agreement.
+
+ 
+
+(b)         Unless the Administrative Agent shall have received notice from a
+Lender prior to the proposed date of any Borrowing that such Lender will not
+make available to the Administrative Agent such Lender’s share of such
+Borrowing, the Administrative Agent may assume that such Lender has made such
+share available on such date in accordance with paragraph (a) of this Section
+and may, in reliance upon such assumption, make available to the Borrower a
+corresponding amount. In such event, if a Lender has not in fact made its share
+of the applicable Borrowing available to the Administrative Agent, then the
+applicable Lender and the Borrower severally agree to pay to the Administrative
+Agent forthwith on demand such corresponding amount 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
+the NYFRB Rate (if such amount was distributed in Dollars) or the rate per annum
+at which one-day deposits in the relevant currency are offered by the principal
+London office of the Administrative Agent in the London interbank market (if
+such amount was distributed in an Alternative Currency).
+
+ 
+
+
+
+28
+
+ 
+
+ 
+
+Section 2.07.      Interest Elections. (a) Each Dollar-Denominated Revolving
+Borrowing initially shall be of the Type specified in the applicable Borrowing
+Request and, in the case of a Euro-Dollar Borrowing, shall have an initial
+Interest Period as specified in such Borrowing Request. Thereafter, the
+applicable Borrower may elect to convert any Revolving Borrowing to a different
+Type or to continue any such Borrowing and, in the case of a Euro-Dollar
+Borrowing, may elect Interest Periods therefor, all as provided in this Section.
+The applicable Borrower may elect different options with respect to different
+portions of any affected Revolving Borrowing, in which case each such portion
+shall be allocated ratably among the Lenders holding the Loans comprising such
+Borrowing, and the Loans comprising each such portion shall be considered a
+separate Borrowing.
+
+ 
+
+(b)         To make an election pursuant to Section 2.07(a) in respect of a
+Revolving Borrowing, the applicable Borrower shall notify the Administrative
+Agent of such election by irrevocable written notice (via a written Interest
+Request) by the time that a Revolving Borrowing Request for a Revolving
+Borrowing would be required under Section 2.03 if such Borrower were requesting
+a Dollar-Denominated Loan of the Type resulting from such election to be made on
+the effective date of such election.
+
+ 
+
+(c)         Each Interest Election Request shall specify the following
+information:
+
+ 
+
+(i)            the Revolving Borrowing to which such Interest Election Request
+applies and, if different options are being elected with respect to different
+portions thereof, the portions thereof to be allocated to each resulting
+Borrowing (in which case the information to be specified pursuant to
+paragraphs (iii) and (iv) below shall be specified for each resulting
+Borrowing);
+
+ 
+
+(ii)            the effective date of the election made pursuant to such
+Interest Election Request, which shall be a Domestic Business Day in the case of
+an ABR Borrowing and a Euro-Dollar Business Day in the case of a Euro-Dollar
+Borrowing;
+
+ 
+
+(iii)            whether the resulting Borrowing is to be an ABR Borrowing or a
+Euro-Dollar Borrowing; and
+
+ 
+
+(iv)            if the resulting Borrowing is a Euro-Dollar Borrowing, the
+Interest Period to be applicable thereto after giving effect to such election,
+which shall be a period contemplated by the definition of the term “Interest
+Period”.
+
+ 
+
+If any such Interest Election Request requests a Euro-Dollar Borrowing but does
+not specify an Interest Period, then the applicable Borrower shall be deemed to
+have selected an Interest Period of one month’s duration.
+
+ 
+
+(d)         Promptly following receipt of an Interest Election Request, the
+Administrative Agent shall advise each Lender of the details thereof and of such
+Lender’s portion of each resulting Borrowing.
+
+ 
+
+
+
+29
+
+ 
+
+ 
+
+(e)         If the applicable Borrower fails to deliver a timely Interest
+Election Request with respect to a Euro-Dollar Borrowing prior to the end of the
+Interest Period applicable thereto, then, unless such Revolving Borrowing is
+repaid as provided herein, at the end of such Interest Period such Revolving
+Borrowing shall be continued as a Euro-Dollar Borrowing with an Interest Period
+of one month’s duration. Notwithstanding any contrary provision hereof, if an
+Event of Default has occurred and is continuing and the Administrative Agent, at
+the request of the Required Lenders, so notifies the applicable Borrower, then,
+so long as an Event of Default is continuing (i) no outstanding Revolving
+Borrowing may be converted to or continued as a Euro-Dollar Borrowing and (ii)
+unless repaid, each Euro-Dollar Borrowing shall be converted to an ABR Borrowing
+at the end of the Interest Period applicable thereto.
+
+ 
+
+(f)          Each Revolving Loan that is an Alternative Currency Loan shall have
+an initial Interest Period as specified in the applicable Borrowing Request.
+Thereafter, the applicable Borrower may elect to continue such Revolving
+Borrowing and may elect Interest Periods therefor, by notifying the
+Administrative Agent of such election by telephone by the time and at the office
+that a Revolving Borrowing Request would be required under Section 2.03 if such
+Borrower were requesting an Alternative Currency Loan to be made on the
+effective date of such election. The applicable Borrower may elect different
+options with respect to different portions of the affected Revolving Borrowing
+(each in a minimum Dollar Amount of $10,000,000), in which case each such
+portion shall be allocated ratably among the Lenders holding the Loans
+comprising any such Borrowing, and the Loans comprising each such portion shall
+be considered a separate Borrowing. Promptly following receipt of such Interest
+Election Request the Administrative Agent shall advise each Lender of the
+details thereof and of such Lender’s portion of each resulting Borrowing. If the
+applicable Borrower fails to deliver a timely Interest Election Request with
+respect to an Alternative Currency Borrowing prior to the end of the Interest
+Period applicable thereto, or any Interest Election Request fails to specify an
+Interest Period, then unless such Borrowing is repaid as provided herein, such
+Borrower shall be deemed to have elected a subsequent Interest Period of one
+month’s duration.
+
+ 
+
+Section 2.08.      Termination and Reduction of Commitments. (a) Unless
+previously terminated, the Commitments shall terminate on the Maturity Date.
+
+ 
+
+(b)         The Company may at any time terminate, or from time to time reduce,
+the Commitments; provided that (i) each reduction of the Commitments shall be in
+an amount that is an integral multiple of $1,000,000 and not less than
+$10,000,000 and (ii) the Company shall not terminate or reduce the Commitments
+if, after giving effect to any concurrent prepayment of the Loans in accordance
+with Section 2.10, the Total Revolving Credit Exposure of all Lenders would
+exceed the total Commitments.
+
+ 
+
+
+
+30
+
+ 
+
+ 
+
+(c)         Notwithstanding the foregoing, upon the acquisition of one Lender by
+another Lender, or the merger, consolidation or other combination of any two or
+more Lenders (any such acquisition, merger, consolidation or other combination
+being referred to hereinafter as a “Combination” and each Lender which is a
+party to such Combination being hereinafter referred to as a “Combined Lender”),
+the Company may notify the Administrative Agent that it desires to reduce the
+Commitment of the Lender surviving such Combination (the “Surviving Lender”) to
+an amount equal to the Commitment of that Combined Lender which had the largest
+Commitment of each of the Combined Lenders party to such Combination (such
+largest Commitment being the “Surviving Commitment” and the Commitments of the
+other Combined Lenders being hereinafter referred to, collectively, as the
+“Retired Commitments”). If the Required Lenders (determined as set forth below)
+and the Administrative Agent agree to such reduction in the Surviving Lender’s
+Commitment, then (i) the aggregate amount of the Commitments shall be reduced by
+the Retired Commitments effective upon the effective date of the Combination (or
+such later date as the Company may specify in its request), provided that, on or
+before such date the Borrowers have paid in full the outstanding principal
+amount of the Loans, accrued interest thereon, accrued fees and all other
+amounts payable to it hereunder of each of the Combined Lenders other than the
+Combined Lender whose Commitment is the Surviving Commitment, (ii) from and
+after the effective date of such reduction, the Surviving Lender shall have no
+obligation with respect to the Retired Commitments, and (iii) the Company shall
+notify the Administrative Agent whether it wants such reduction to be a
+permanent reduction or a temporary reduction. If such reduction is to be a
+temporary reduction, then the Company shall be responsible for finding one or
+more financial institutions (which for the avoidance of doubt may be an existing
+Lender) (each, a “Replacement Lender”), acceptable to the Administrative Agent
+(such acceptance not to be unreasonably withheld, conditioned or delayed),
+willing to assume the obligations of a Lender hereunder with aggregate
+Commitments up to the amount of the Retired Commitments. The Administrative
+Agent may require the Replacement Lenders to execute such documents, instruments
+or agreements as the Administrative Agent reasonably deems necessary or
+desirable to evidence such Replacement Lenders’ agreement to become parties
+hereunder. For purposes of this Section 2.08(c), Required Lenders shall be
+determined as if the reduction in the aggregate amount of the Commitments
+requested by the Company had occurred (i.e., the Combined Lenders shall be
+deemed to have a single Commitment equal to the Surviving Commitment and the
+aggregate amount of the Commitments shall be deemed to have been reduced by the
+Retired Commitments).
+
+ 
+
+(d)         The Company shall notify the Administrative Agent of any election to
+terminate or reduce the Commitments under paragraph (b) of this Section at least
+three (3) Domestic Business Days prior to the effective date of such termination
+or reduction, specifying such election and the effective date thereof. Promptly
+following receipt of any notice, the Administrative Agent shall advise the
+Lenders of the contents thereof. Each notice delivered by the Company pursuant
+to this Section shall be irrevocable; provided that a notice of termination or
+reduction of the Commitments delivered by the Company may state that such notice
+is conditioned upon the effectiveness of other credit facilities or other
+matters specified therein, in which case such notice may be revoked by the
+Company (by notice to the Administrative Agent on or prior to the specified
+effective date) if such condition is not satisfied. Any termination or reduction
+of the Commitments shall be permanent. Each reduction of the Commitments under
+this Section 2.08 shall be made ratably among the Lenders in accordance with
+their respective Commitments.
+
+ 
+
+(e)         In addition, the Commitments shall be permanently and irrevocably
+reduced as and when provided in Section 2.10(c).
+
+ 
+
+Section 2.09.      Repayment of Loans; Evidence of Debt.
+
+ 
+
+(a)           The Borrower hereby unconditionally promises to pay to the
+Administrative Agent for the account of each Lender the then unpaid principal
+amount of each Revolving Loan on the Maturity Date.
+
+ 
+
+
+
+31
+
+ 
+
+ 
+
+(b)         Each Lender shall maintain in accordance with its usual practice an
+account or accounts evidencing the indebtedness of the Borrowers to such Lender
+resulting from each Loan made by such Lender, including the amounts of principal
+and interest payable and paid to such Lender from time to time hereunder.
+
+ 
+
+(c)         The Administrative Agent shall maintain accounts in which it shall
+record (i) the currency and amount of each Loan made hereunder, the Class and
+Type thereof and the Interest Period applicable thereto, (ii) the amount of any
+principal or interest due and payable or to become due and payable from the
+applicable Borrower to each Lender hereunder and (iii) the amount of any sum
+received by the Administrative Agent hereunder for the account of the Lenders
+and each Lender’s share thereof.
+
+ 
+
+(d)         The entries made in the accounts maintained pursuant to
+paragraph (b) or (c) of this Section shall be prima facie evidence of the
+existence and amounts of the obligations recorded therein; provided that the
+failure of any Lender or the Administrative Agent to maintain such accounts or
+any error therein shall not in any manner affect the obligation of the Borrowers
+to repay the Loans in accordance with the terms of this Agreement.
+
+ 
+
+(e)         Any Lender may request that Loans made by it to any Borrower be
+evidenced by a promissory note. In such event, such Borrower shall prepare,
+execute and deliver to such Lender a promissory note payable to such Lender and
+its registered assigns and in a form approved by the Administrative Agent and
+the Borrower. Thereafter, the Loans evidenced by such promissory note and
+interest thereon shall at all times (including after assignment pursuant to
+Section 12.04) be represented by one or more promissory notes in such form
+payable to the payee named therein and its registered assigns.
+
+ 
+
+Section 2.10.      Prepayment of Loans. (a) Each Borrower shall have the right
+at any time and from time to time to prepay any Borrowing in whole or in part,
+subject to prior notice in accordance with paragraph (b) of this Section.
+
+ 
+
+(b)         The applicable Borrower shall notify the Administrative Agent by
+telephone (confirmed by facsimile) of any prepayment hereunder (i) in the case
+of prepayment of a Euro-Dollar Borrowing, not later than 11:00 a.m., New York
+City time, three Euro-Dollar Business Days before the date of prepayment, (ii)
+in the case of prepayment of an Alternative Currency Borrowing, not later than
+11:00 a.m., New York City time, three Euro-Currency Business Days before the
+date of prepayment or (iii) in the case of prepayment of an ABR Revolving
+Borrowing, not later than 11:00 a.m., New York City time, one Domestic Business
+Day before the date of prepayment. Each such notice shall be irrevocable and
+shall specify the prepayment date and the principal amount of each Borrowing or
+portion thereof to be prepaid; provided that (A) if a notice of prepayment is
+given in connection with a conditional notice of termination of the Commitments
+as contemplated by Section 2.08, then such notice of prepayment may be revoked
+if such notice of termination is revoked in accordance with Section 2.08 and (B)
+a notice of prepayment by any Borrower may state that such notice is conditioned
+upon the effectiveness of other credit facilities or other matters specified
+therein, in which case such notice may be revoked by the applicable Borrower (by
+notice to the Administrative Agent on or prior to the specified effective date)
+if such condition is not satisfied. Promptly following receipt of any such
+notice relating to a Revolving Borrowing, the Administrative Agent shall advise
+the Lenders of the contents thereof. Each partial prepayment of any Revolving
+Borrowing shall be in an amount that would be permitted in the case of an
+advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
+Each prepayment under this Section 2.10 shall be applied ratably to the Loans
+included in the prepaid Borrowing. Prepayments shall be accompanied by (i)
+accrued interest to the extent required by Section 2.12 and (ii) break funding
+payments required by Section 2.15.
+
+ 
+
+
+
+32
+
+ 
+
+ 
+
+(c)         In the event and on each occasion that any Net Cash Proceeds are
+received by or on behalf of the Company or any of its Subsidiaries from either
+(i) the incurrence of any Specified Indebtedness or (ii) the issuance of any
+Specified Equity, the Company shall in each case, with respect to any Loans then
+outstanding, within five (5) Business Days after such Net Cash Proceeds are
+received by the Company or any of its Subsidiaries, prepay the principal amount
+of such Loans then outstanding (if any) in an amount equal to the lesser of (x)
+the principal amount of Loans then outstanding and (y) 100% of the amount of
+such Net Cash Proceeds, which proceeds shall be applied in each case to
+minimize, to the extent reasonably practicable, any additional amounts required
+under Section 2.15 (it being understood and agreed that nothing in such Section
+2.15 or with respect to the amounts required thereunder in respect of such
+application of proceeds shall delay the application of such proceeds as
+contemplated by this Section 2.10(c)), and, regardless of whether any Loans were
+outstanding and required to be so prepaid pursuant to this Section 2.10(c),
+there shall be an immediate, permanent and irrevocable ratable reduction of the
+Commitments then outstanding (1) effective as of the date such Net Cash Proceeds
+are received by the Company or any of its Subsidiaries, in an amount equal to
+the amount by which 100% of the amount of such Net Cash Proceeds exceeds the
+principal amount of Loans then outstanding, and (2) upon the earlier of such
+prepayment of outstanding Loans described above and such fifth (5th) Business
+Day after the receipt of such Net Cash Proceeds in an amount equal to the
+principal amount of Loans then outstanding. The Company shall provide prior
+written notice to the Administrative Agent regarding each prepayment and
+commitment reduction pursuant to this Section 2.10(c).
+
+ 
+
+Section 2.11.      Fees. (a) Subject to Section 2.23, the Company agrees to pay
+to the Administrative Agent for the account of each Lender a commitment fee in
+Dollars, which shall accrue at the Applicable Rate on the daily unused amount of
+the Commitment of such Lender (other than a Defaulting Lender) during the period
+from and including the Effective Date to but excluding the date on which such
+Commitment terminates. Accrued commitment fees shall be payable in arrears on
+the twentieth (20th) day following the last day of March, June, September and
+December of each year and on the date on which the Commitments terminate,
+commencing on the first such date to occur after the date hereof. If the date on
+which accrued commitment fees are payable is not a Domestic Business Day, the
+date for payment of such fees shall be extended to the next succeeding Domestic
+Business Day. All commitment fees shall be computed on the basis of a year of
+360 days and shall be payable for the actual number of days elapsed (including
+the first day but excluding the last day).
+
+ 
+
+(b)         On September 30, 2020, the Company agrees to pay to the
+Administrative Agent for the account of each Lender a duration fee in Dollars of
+0.10% of the Commitment then outstanding held by such Lender on September 30,
+2020.
+
+ 
+
+
+
+33
+
+ 
+
+ 
+
+(c)         All fees payable hereunder shall be paid on the dates due, in
+immediately available funds, to the Administrative Agent for distribution, in
+the case of commitment fees and duration fees, to the Lenders entitled thereto.
+Fees paid in accordance with this Section 2.11 shall not be refundable under any
+circumstances.
+
+ 
+
+Section 2.12.      Interest. (a) The Loans comprising each ABR Borrowing shall
+bear interest at the Alternate Base Rate plus the Applicable Rate.
+
+ 
+
+(b)         The Loans comprising each Euro-Currency Borrowing shall bear
+interest at the Adjusted LIBO Rate for the Interest Period in effect for such
+Borrowing plus the Applicable Rate.
+
+ 
+
+(c)         [Reserved].
+
+ 
+
+(d)         Notwithstanding the foregoing, if any principal of or interest on
+any Loan or any fee or other amount payable by any Borrower hereunder is not
+paid when due, whether at stated maturity, upon acceleration or otherwise, such
+overdue amount shall bear interest, after as well as before judgment, at a rate
+per annum equal to (i) in the case of overdue principal of or interest on any
+Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
+preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
+plus the rate applicable to ABR Loans as provided in paragraph (a) of this
+Section.
+
+ 
+
+(e)         Accrued interest on each Loan shall be payable in arrears on each
+Interest Payment Date for such Loan, on the Maturity Date for such Loan and, in
+the case of Revolving Loans, upon termination of the Commitments; provided that
+(i) interest accrued pursuant to paragraph (d) of this Section shall be payable
+on demand, (ii) in the event of any repayment or prepayment of any Loan (other
+than a prepayment of an ABR Revolving Loan prior to the end of the Availability
+Period), accrued interest on the principal amount repaid or prepaid shall be
+payable on the date of such repayment or prepayment and (iii) in the event of
+any conversion of any Euro-Dollar Loan prior to the end of the current Interest
+Period therefor, accrued interest on such Loan shall be payable on the effective
+date of such conversion.
+
+ 
+
+(f)          All interest hereunder shall be computed on the basis of a year of
+360 days, except that (i) interest computed by reference to the Alternate Base
+Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
+computed on the basis of a year of 365 days (or 366 days in a leap year) and
+(ii) interest computed with respect to Loans denominated in Pound Sterling (if
+any) shall be computed on the basis of a year of 365 days, and in each case
+shall be payable for the actual number of days elapsed (including the first day
+but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO
+Rate shall be determined by the Administrative Agent, and such determination
+shall be conclusive absent demonstrable error.
+
+ 
+
+Section 2.13.      Alternate Rate of Interest. (a) If prior to the commencement
+of any Interest Period for a Euro-Currency Borrowing:
+
+ 
+
+(i)       the Administrative Agent determines (which determination shall be
+conclusive and binding absent demonstrable error) that adequate and reasonable
+means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate for
+deposits in the relevant currency for such Interest Period; or
+
+  
+
+34
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+(ii)       the Administrative Agent is advised by the Required Lenders that the
+Adjusted LIBO Rate or the LIBO Rate applicable to Euro-Currency Borrowings in
+the relevant currency for such Interest Period will not adequately and fairly
+reflect the cost to such Lenders of making or maintaining their Loans included
+in such Borrowing for such Interest Period;
+
+ 
+
+then the Administrative Agent shall give notice (in reasonable detail) thereof
+to the Company and the Lenders by telephone or facsimile as promptly as
+practicable thereafter and, until the Administrative Agent notifies the Company
+and the Lenders that the circumstances giving rise to such notice no longer
+exist (which the Administrative Agent shall do promptly after becoming aware
+thereof), (A) any Interest Election Request that requests the conversion of any
+Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
+Euro-Currency Borrowing of the affected currency shall be ineffective, (B) if
+any Borrowing Request requests a Euro-Dollar Borrowing, such Borrowing shall be
+made as an ABR Borrowing and (C) if any Borrowing Request requests a
+Euro-Currency Borrowing denominated in any affected Alternative Currency, such
+Borrowing Request shall be deemed ineffective.
+
+ 
+
+(b)       Notwithstanding the foregoing, if at any time the Administrative Agent
+determines (which determination shall be conclusive absent demonstrable error),
+or the Company notifies the Administrative Agent that the Company has
+determined, that (i) the circumstances set forth in clause (a)(i) have arisen
+and such circumstances are unlikely to be temporary or (ii) the circumstances
+set forth in clause (a)(i) have not arisen but either (w) the supervisor for the
+administrator of the LIBO Screen Rate has made a public statement that the
+administrator of the LIBO Screen Rate is insolvent (and there is no successor
+administrator that will continue publication of the LIBO Screen Rate), (x) the
+administrator of the LIBO Screen Rate has made a public statement identifying a
+specific date after which the LIBO Screen Rate will permanently or indefinitely
+cease to be published by it (and there is no successor administrator that will
+continue publication of the LIBO Screen Rate), (y) the supervisor for the
+administrator of the LIBO Screen Rate has made a public statement identifying a
+specific date after which the LIBO Screen Rate will permanently or indefinitely
+cease to be published or (z) the supervisor for the administrator of the LIBO
+Screen Rate or a Governmental Authority having jurisdiction over the
+Administrative Agent has made a public statement identifying a specific date
+after which the LIBO Screen Rate may no longer be used for determining interest
+rates for loans, then the Administrative Agent and the Borrower shall endeavor
+to establish an alternate rate of interest to the LIBO Rate that gives due
+consideration to the then prevailing market convention for determining a rate of
+interest for syndicated loans in the United States at such time, and shall enter
+into an amendment to this Agreement to reflect such alternate rate of interest
+and such other related changes to this Agreement as may be applicable; provided
+that, if such alternate rate of interest as so determined would be less than
+0.50%, such rate shall be deemed to be 0.50% for the purposes of this Agreement.
+Notwithstanding anything to the contrary in Section 12.02, such amendment shall
+become effective without any further action or consent of any other party to
+this Agreement so long as the Administrative Agent shall not have received,
+within five Business Days of the date notice of such alternate rate of interest
+(along with the amendment to this Agreement giving effect to the changes hereto
+in respect of such alternate rate of interest) is provided to the Lenders, a
+written notice from the Required Lenders stating that such Required Lenders
+object to such amendment and the basis for such objection. Until an alternate
+rate of interest shall be determined in accordance with this clause (b) (but, in
+the case of the circumstances described in clause (ii)(w), clause (ii)(x) or
+clause (ii)(y) of the first sentence of this Section 2.13(b), only to the extent
+the LIBO Screen Rate for the relevant currency and such Interest Period is not
+available or published at such time on a current basis), (x) any Interest
+Election Request that requests the conversion of any Revolving Borrowing to, or
+continuation of any Revolving Borrowing as, a Euro-Currency Borrowing of the
+affected currency shall be ineffective, (y) if any Borrowing Request requests a
+Euro-Dollar Borrowing, such Borrowing shall be made as an ABR Borrowing and (z)
+if any Borrowing Request requests a Euro-Currency Borrowing denominated in any
+affected Alternative Currency, such Borrowing Request shall be deemed
+ineffective.
+
+ 
+
+
+
+35
+
+ 
+
+ 
+
+Section 2.14.      Increased Costs. (a) If any Change in Law shall
+
+ 
+
+(i)            impose, modify or deem applicable any reserve, special deposit,
+liquidity or similar requirement against assets of, deposits with or for the
+account of, or credit extended by, any Lender or its Applicable Lending Office
+(except any such reserve requirement reflected in the Adjusted LIBO Rate); or
+
+ 
+
+(ii)            impose on any Lender (or its Applicable Lending Office) or the
+London interbank market any other condition affecting this Agreement or
+Euro-Currency Loans made by such Lender or participation therein;
+
+ 
+
+and the result of any of the foregoing shall be to increase the cost to such
+Lender (or its Applicable Lending Office) of making, continuing, converting or
+maintaining any Loan (or of maintaining its obligation to make any such Loan) or
+to reduce the amount of any sum received or receivable by such Lender (or its
+Applicable Lending Office) (whether of principal, interest or otherwise), then
+the Company will pay (or will cause the relevant Borrower to pay) to such Lender
+such additional amount or amounts as will compensate such Lender for such
+additional costs incurred or reduction suffered.
+
+ 
+
+(b)         If any Lender determines that any Change in Law regarding capital or
+liquidity requirements has or would have the effect of reducing the rate of
+return on such Lender’s capital or on the capital of such Lender’s holding
+company, if any, as a consequence of this Agreement or the Loans made by such
+Lender to a level below that which such Lender or such Lender’s holding company
+could have achieved but for such Change in Law (taking into consideration such
+Lender’s policies and the policies of such Lender’s holding company with respect
+to capital adequacy and liquidity), then from time to time the Company will pay
+(or will cause the relevant Borrower to pay) to such Lender such additional
+amount or amounts as will compensate such Lender or such Lender’s holding
+company for any such reduction suffered.
+
+ 
+
+(c)         If a Change in Law shall subject any Lender to any Taxes (other than
+Indemnified Taxes and Excluded Taxes) on its loans, loan principal, letters of
+credit, commitments, or other obligations hereunder, or its deposits, reserves,
+other liabilities or capital attributable thereto, and the result shall be to
+increase the cost to such Lender of making or maintaining any Loan (or of
+maintaining its obligation to make any such Loan) or to reduce the amount of any
+sum received or receivable by such Lender hereunder (whether of principal,
+interest or otherwise), then the Company will pay to such Lender such additional
+amount or amounts as will compensate such Lender for such additional costs
+incurred or reduction suffered.
+
+ 
+
+
+
+36
+
+ 
+
+ 
+
+(d)         A certificate of a Lender setting forth the amount or amounts
+necessary to compensate such Lender or its holding company, as the case may be,
+as specified in paragraph (a), (b) or (c) of this Section and the calculation of
+such amount or amounts in reasonable detail shall be delivered to the Company
+and shall be conclusive absent clearly demonstrable error; provided that such
+Lender shall not be required to disclose any information to the extent
+prohibited by law or regulation. The Company or the relevant Borrower, as the
+case may be, shall pay such Lender the amount shown as due on any such
+certificate free of clearly demonstrable error within 15 days after receipt
+thereof. In requesting any compensation pursuant to this Section, each Lender
+will use good faith efforts to treat the applicable Borrower in substantially
+the same manner as such Lender treats other similarly situated borrowers under
+similar circumstances.
+
+ 
+
+(e)         Failure or delay on the part of any Lender to demand compensation
+pursuant to this Section shall not constitute a waiver of such Lender’s right to
+demand such compensation; provided that the Borrower shall not be required to
+compensate a Lender pursuant to this Section 2.14 for any increased costs or
+reductions incurred more than 90 days prior to the date that such Lender
+notifies the Borrower of the Change in Law giving rise to such increased costs
+or reductions and of such Lender’s claim to receive compensation therefor;
+provided further that, if the Change in Law giving rise to such increased costs
+or reductions is retroactive, then the 90-day period referred to above shall be
+extended to include the period of retroactive effect thereof.
+
+ 
+
+Section 2.15.      Break Funding Payments. In the event of (a) the payment of
+any principal of any Euro-Currency Loan other than on the last day of an
+Interest Period applicable thereto (including as a result of an Event of
+Default), (b) the conversion of any Euro-Dollar Loan other than on the last day
+of the Interest Period applicable thereto, (c) the failure to borrow, convert,
+continue or prepay any Euro-Currency Loan on the date specified in any notice
+delivered pursuant hereto (regardless of whether such notice may be revoked
+under Section 2.10(b) and is revoked in accordance therewith) or (d) the
+assignment of any Euro-Currency Loan other than on the last day of the Interest
+Period applicable thereto as a result of a request by the Borrower pursuant to
+Section 2.19, then, in any such event, the relevant Borrower shall compensate
+each Lender for the loss (excluding loss of margin), cost and expense
+attributable to such event. Such loss, cost or expense to any Lender shall be
+deemed to include an amount determined by such Lender to be the excess, if any,
+of (i) the amount of interest which would have accrued on the principal amount
+of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
+have been applicable to such Loan, for the period from the date of such event to
+the last day of the then current Interest Period therefor (or, in the case of a
+failure to borrow, convert or continue, for the period that would have been the
+Interest Period for such Loan), over (ii) the amount of interest which would
+accrue on such principal amount for such period at the interest rate which such
+Lender would bid were it to bid, at the commencement of such period, for
+deposits in Dollars or other applicable currency of a comparable amount and
+period from other banks in the London interbank market; provided, however, that
+such Borrower shall not be required to compensate any Lender for any costs of
+terminating or liquidating any hedge or trading position (including any rate
+swap, basis swap, forward rate transaction, interest rate option, cap, collar or
+floor transaction, or any similar transaction). A certificate of any Lender
+setting forth any amount or amounts that such Lender is entitled to receive
+pursuant to this Section and the calculation of such amount or amounts in
+reasonable detail shall be delivered to the Borrower and shall be conclusive
+absent clearly demonstrable error. The Borrower shall pay such Lender the amount
+shown as due on any such certificate free of clearly demonstrable error within
+10 days after receipt thereof.
+
+ 
+
+
+
+37
+
+ 
+
+ 
+
+Section 2.16.      Taxes. (a) Any and all payments by or on account of any
+obligation of any Credit Party under the Loan Documents shall be made free and
+clear of and without deduction for any Taxes, except as required by applicable
+law. If any Credit Party or the Administrative Agent (the “Withholding Agent”)
+shall be required to deduct any Indemnified Taxes or Other Taxes from or in
+respect of any sum payable under the Loan Documents to any Lender or the
+Administrative Agent, then (i) the sum payable by such Credit Party shall be
+increased as necessary so that after making all required deductions (including
+deductions applicable to additional sums payable under this Section) the
+Administrative Agent or such Lender (as the case may be) receives an amount
+equal to the sum it would have received had no such deductions been made, (ii)
+the Withholding Agent shall make such deductions and (iii) the Withholding Agent
+shall pay the full amount deducted to the relevant Governmental Authority in
+accordance with applicable law.
+
+ 
+
+(b)         In addition, each Credit Party shall pay any Other Taxes to the
+relevant Governmental Authority in accordance with applicable law.
+
+ 
+
+(c)         The relevant Credit Party shall indemnify the Administrative Agent
+and each Lender, within 10 days after written demand therefor, for the full
+amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent
+or such Lender, as the case may be, on or with respect to any payment by or on
+account of any obligation of such Credit Party under the Loan Documents
+(including Indemnified Taxes or Other Taxes imposed or asserted on or
+attributable to amounts payable under this Section) and any penalties, interest
+and reasonable expenses arising therefrom or with respect thereto, whether or
+not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
+asserted by the relevant Governmental Authority; provided that the relevant
+Credit Party shall not be obligated to indemnify the Administrative Agent or
+such Lender, as the case may be, pursuant to this Section in respect of
+penalties, interest or similar liabilities arising therefrom or with respect
+thereto to the extent such penalties, interest or similar liabilities are
+attributable to the gross negligence or willful misconduct by the Administrative
+Agent or such Lender, as the case may be. A certificate as to the amount of such
+payment or liability delivered to the relevant Credit Party by a Lender or by
+the Administrative Agent on its own behalf or on behalf of a Lender, shall be
+conclusive absent clearly demonstrable error.
+
+ 
+
+(d)         As soon as practicable after any payment of Indemnified Taxes or
+Other Taxes by any Credit Party to a Governmental Authority, such Credit Party
+shall deliver to the Administrative Agent the original or a certified copy of a
+receipt issued by such Governmental Authority evidencing such payment, a copy of
+the return reporting such payment or other evidence of such payment reasonably
+satisfactory to the Administrative Agent.
+
+ 
+
+
+
+38
+
+ 
+
+ 
+
+(e)         Any Lender that is entitled to an exemption from or reduction of
+withholding Tax with respect to payments under this Agreement shall deliver to
+the Company (with a copy to the Administrative Agent), at the time or times
+reasonably requested by the Company or the Administrative Agent, such properly
+completed and executed documentation prescribed by applicable law or reasonably
+requested by the Company or the Administrative Agent as will permit such
+payments to be made without withholding or at a reduced rate. In addition, any
+Lender, if requested by the Company or the Administrative Agent, shall deliver
+such other documentation prescribed by applicable law or reasonably requested by
+the Company or the Administrative Agent as will enable the Company or the
+Administrative Agent to determine whether or not such Lender is subject to any
+withholding (including backup withholding) or information reporting
+requirements. Notwithstanding anything to the contrary in the preceding two
+sentences, the completion, execution and submission of such documentation (other
+than such documentation set forth in Section 2.16(f), (g), (h) and (i) below)
+shall not be required if in the Lender’s judgment such completion, execution or
+submission would subject such Lender to any material unreimbursed cost or
+expense or would materially prejudice the legal or commercial position of such
+Lender.
+
+ 
+
+(f)          Without limiting the foregoing, at the times indicated herein, each
+Foreign Lender shall, to the extent it is legally entitled to do so, provide the
+Company and the Administrative Agent with duly and accurately executed originals
+of Internal Revenue Service form W-8BEN, W-8BEN-E, W-8IMY (accompanied by a form
+W-8ECI, W-8BEN, W-8BEN-E or W-9 and other certification documents from each
+beneficial owner, as applicable) or W-8ECI (in each case accompanied by any
+statements which may be required under applicable Treasury regulations), as
+appropriate, or any successor form prescribed by the Internal Revenue Service,
+certifying that such Lender is entitled to receive payments under this Agreement
+(i) without deduction or withholding of any United States federal income Taxes
+or (ii) subject to a reduced rate of United States federal withholding Tax. Such
+forms shall be provided (x) on or prior to the date of the Lender’s execution
+and delivery of this Agreement in the case of each Lender listed on the
+signature pages hereof, and on or prior to the date on which it becomes a Lender
+in the case of each other Lender, and (y) on or before the date that such form
+expires or becomes obsolete or after the occurrence of any event requiring a
+change in the most recent form so delivered by the Lender.
+
+ 
+
+(g)         Any Lender that is a “United States person” within the meaning of
+Section 7701(a)(30) of the Code shall deliver to the Company and the
+Administrative Agent on or prior to the date on which such Lender becomes a
+Lender under this Agreement (and from time to time thereafter upon the request
+of the Company or the Administrative Agent), duly and accurately executed
+originals of Internal Revenue Service form W-9 certifying, to the extent such
+Lender is legally entitled to do so, that such Lender is not subject to U.S.
+federal backup withholding Tax. For the avoidance of doubt, such Tax is an
+“Excluded Tax”.
+
+ 
+
+(h)         If a payment made to a Lender under any Loan Document would be
+subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to
+fail to comply with the applicable requirements of FATCA (including those
+contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender
+shall deliver to the Company and the Administrative Agent at the time or times
+prescribed by law and at such time or times reasonably requested by the Company
+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 Company or the
+Administrative Agent as may be necessary for the Company or the Administrative
+Agent to comply with its obligations under FATCA, to determine that such Lender
+has or has not complied with such Lender’s obligations under FATCA or to
+determine the amount to deduct and withhold from such payment. Solely for the
+purposes of this Section 2.16(h), “FATCA” shall include any amendments made to
+FATCA after the date of this Agreement, whether or not included in the
+definition of FATCA.
+
+ 
+
+
+
+39
+
+ 
+
+ 
+
+(i)           Each Lender agrees that if any form or certification it previously
+delivered expires or becomes obsolete or inaccurate in any respect, it shall
+update such form or certification or promptly notify the Company and the
+Administrative Agent in writing of its legal inability to do so.
+
+ 
+
+(j)           If the Administrative Agent or a Lender determines, in its sole
+discretion, that it has received a refund of any Indemnified Taxes or Other
+Taxes as to which it has been indemnified by any Borrower or with respect to
+which any Borrower has paid additional amounts pursuant to this Section 2.16, it
+shall pay over such refund to such Borrower (but only to the extent of indemnity
+payments made, or additional amounts paid, by such Borrower under this Section
+2.16 with respect to the Indemnified Taxes or Other Taxes giving rise to such
+refund), net of all out-of-pocket expenses with respect to such refund of the
+Administrative Agent or such Lender and without interest (other than any
+interest paid by the relevant Governmental Authority with respect to such
+refund); provided that such Borrower, upon the request of the Administrative
+Agent or such Lender, 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 Administrative Agent or such Lender in the event the
+Administrative Agent or such Lender is required to repay such refund to such
+Governmental Authority. This Section shall not be construed to require the
+Administrative Agent or any Lender to make available its tax returns (or any
+other information relating to its taxes which it deems confidential) to the
+Borrower or any other Person.
+
+ 
+
+(k)         Each Lender shall severally indemnify the Administrative Agent,
+within 10 days after demand therefor, for (i) any Indemnified Taxes or Other
+Taxes attributable to such Lender (but only to the extent that the applicable
+Borrower has not already indemnified the Administrative Agent for such
+Indemnified Taxes or Other Taxes and without limiting the obligation of the such
+Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to
+comply with the provisions of Section 12.04(c) relating to the maintenance of a
+Participant Register and (iii) any Excluded Taxes attributable to such Lender,
+in each case, that are payable or paid by the Administrative Agent in connection
+with this Agreement, and any reasonable expenses arising therefrom or with
+respect thereto, whether or not such Taxes were correctly or legally imposed or
+asserted by the relevant Governmental Authority. A certificate as to the amount
+of such payment or liability delivered to any Lender by the Administrative Agent
+shall be conclusive absent manifest error. Each Lender hereby authorizes the
+Administrative Agent to set off and apply any and all amounts at any time owing
+to such Lender under this Agreement or otherwise payable by the Administrative
+Agent to the Lender from any other source against any amount due to the
+Administrative Agent under this paragraph (k).
+
+ 
+
+(l)           Each party’s obligations under this Section 2.16 shall survive any
+assignment of rights by, or the replacement of, a Lender, the resignation or
+replacement of the Administrative Agent, the termination of the Commitments and
+the repayment, satisfaction or discharge of all other obligations under this
+Agreement.
+
+ 
+
+
+
+40
+
+ 
+
+ 
+
+Section 2.17.      Foreign Subsidiary Costs. If the cost to any Lender of making
+or maintaining any Loan to a Subsidiary Borrower is increased, or (except as
+permitted by Section 2.16) the amount of any sum received or receivable by any
+Lender (or its Applicable Lending Office) is reduced in each case by an amount
+deemed by such Lender to be material, by reason of the fact that such Subsidiary
+Borrower is incorporated in, or conducts business in, a jurisdiction outside the
+United States, the Company shall indemnify such Lender for such increased cost
+or reduction within 15 days after demand by such Lender (with a copy to the
+Administrative Agent). A certificate of such Lender claiming compensation under
+this Section 2.17 and setting forth the additional amount or amounts to be paid
+to it hereunder (and a calculation thereof in reasonable detail) shall be
+delivered to the Company contemporaneously with any such demand and shall be
+conclusive in the absence of clearly demonstrable error. In requesting any
+compensation pursuant to this Section, each Lender will use good faith efforts
+to treat the Company in substantially the same manner as such Lender treats
+other similarly situated borrowers under similar circumstances.
+
+ 
+
+Section 2.18.      Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
+(a) The Borrower shall make each payment of principal of, and interest on, the
+Dollar-Denominated Loans, and of fees hereunder, not later than 12:00 noon (New
+York City time) on the date when due, in Dollars in funds immediately available
+in New York City. The Borrower shall make each payment of principal of, and
+interest on, the Alternative Currency Loans denominated in an Alternative
+Currency in the relevant Alternative Currency in such funds as may then be
+customary for the settlement of international transactions in such Alternative
+Currency. Each such payment shall be made without reduction by reason of any
+set-off, recoupment or counterclaim. Any amounts received after such time on any
+date may, in the discretion of the Administrative Agent, be deemed to have been
+received on the next succeeding Domestic Business Day (in the case of amounts
+denominated in Dollars) or Euro-Currency Business Day (in the case of amounts
+denominated in an Alternative Currency) for purposes of calculating interest
+thereon. All such payments shall be made to the Administrative Agent at its
+offices at 270 Park Avenue, New York, New York, except that payments pursuant to
+Sections 2.14, 2.15, 2.16, 2.17 and 12.03 shall be made directly to the Persons
+entitled thereto. The Administrative Agent shall distribute any such payments
+received by it for the account of any other Person to the appropriate recipient
+promptly following receipt thereof. If any payment hereunder shall be due on a
+day that is not a Domestic Business Day (in the case of ABR Loans denominated in
+Dollars) or a Euro-Currency Business Day (in the case of Euro-Currency Loans
+denominated in an Alternative Currency), the date for payment shall be extended
+to the next succeeding Domestic Business Day (in the case of ABR Loans
+denominated in Dollars) or Euro-Currency Business Day (in the case of
+Euro-Currency Loans denominated in an Alternative Currency), and, in the case of
+any payment accruing interest, interest thereon shall be payable for the period
+of such extension.
+
+ 
+
+(b)         If at any time insufficient funds are received by and available to
+the Administrative Agent to pay fully all amounts of principal, interest and
+fees then due hereunder, such funds shall be applied (i) first, towards payment
+of interest and fees then due hereunder, ratably among the parties entitled
+thereto in accordance with the amounts of interest and fees then due to such
+parties, and (ii) second, towards payment of principal then due hereunder,
+ratably among the parties entitled thereto in accordance with the amounts of
+principal then due to such parties.
+
+ 
+
+
+
+41
+
+ 
+
+ 
+
+(c)         If any Lender shall, by exercising any right of set-off or
+counterclaim or otherwise, obtain payment in respect of any principal of or
+interest on any of its Revolving Loans resulting in such Lender receiving
+payment of a greater proportion of the aggregate amount of its Revolving Loans
+and accrued interest thereon than the proportion received by any other Lender,
+then the Lender receiving such greater proportion shall purchase (for cash at
+face value) participations in the Revolving Loans of other Lenders to the extent
+necessary so that the benefit of all such payments shall be shared by the
+Lenders ratably in accordance with the aggregate amount of principal of and
+accrued interest on their respective Revolving Loans; provided that (i) if any
+such participations are purchased and all or any portion of the payment giving
+rise thereto is recovered, such participations shall be rescinded and the
+purchase price restored to the extent of such recovery, without interest, and
+(ii) the provisions of this paragraph shall not be construed to apply to any
+payment made by any Borrower pursuant to and in accordance with the express
+terms of this Agreement or any payment obtained by a Lender as consideration for
+the assignment of or sale of a participation in any of its Loans to any assignee
+or participant, other than to the Company or any Subsidiary or Affiliate thereof
+(as to which the provisions of this paragraph shall apply). Each 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 such Borrower rights of set-off and
+counterclaim with respect to such participation as fully as if such Lender were
+a direct creditor of such Borrower in the amount of such participation.
+
+ 
+
+(d)         Unless the Administrative Agent shall have received notice from the
+Company or the applicable Borrower prior to the date on which any payment is due
+to the Administrative Agent for the account of the Lenders that a Borrower will
+not make such payment, the Administrative Agent may assume that such Borrower
+has made such payment on such date in accordance herewith and may, in reliance
+upon such assumption, distribute to the Lenders, the amount due. In such event,
+if such Borrower has not in fact made such payment, then each of the Lenders
+severally agrees to repay to the Administrative Agent forthwith on demand the
+amount so distributed to such Lender 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 (i) the NYFRB Rate (if such
+distribution was made in Dollars) or (ii) the rate per annum at which one-day
+deposits in the relevant currency are offered by the principal London office of
+the Administrative Agent in the London interbank market (if such distribution
+was made in an Alternative Currency).
+
+ 
+
+(e)         If any Lender shall fail to make any payment required to be made by
+it pursuant to Section 2.06(b), 2.18(d) or 12.03(c), then the Administrative
+Agent may, in its discretion and notwithstanding any contrary provision hereof,
+(i) apply any amounts thereafter received by the Administrative Agent for the
+account of such Lender under this Agreement for the benefit of the
+Administrative Agent to satisfy such Lender’s obligations to it under such
+Section until all such unsatisfied obligations are fully paid, and/or (ii) hold
+any such amounts in a segregated account as cash collateral for, and application
+to, any future funding obligations of such Lender under any such Section, in the
+case of each of clauses (i) and (ii) above, in any order as determined by the
+Administrative Agent in its discretion.
+
+ 
+
+
+
+
+
+42
+
+ 
+
+ 
+
+
+
+Section 2.19.      Mitigation Obligations; Replacement of Lenders.
+
+ 
+
+(a)         If any Lender requests compensation under Section 2.14 or 2.17, or
+if any Borrower is required to pay any additional amount to any Lender or any
+Governmental Authority for the account of any Lender pursuant to Section 2.16,
+then such Lender shall use reasonable efforts to designate a different
+Applicable Lending Office for funding or booking its Loans hereunder or to
+assign its rights and obligations hereunder to another of its offices, branches
+or affiliates, if, in the judgment of such Lender, such designation or
+assignment (i) would eliminate or reduce amounts payable pursuant to Section
+2.14, 2.16 or 2.17, as the case may be, in the future and (ii) would not subject
+such Lender to any unreimbursed cost or expense and would not otherwise be
+disadvantageous to such Lender. The Company hereby agrees to pay all reasonable
+costs and expenses incurred by any Lender in connection with any such
+designation or assignment.
+
+ 
+
+(b)         If any Lender or Participant of any Lender requests compensation
+under Section 2.14 or 2.17, or if any Borrower is required to pay any additional
+amount to any Lender, any Participant of any Lender or any Governmental
+Authority for the account of any Lender (or a Participant) pursuant to Section
+2.16, or if any Lender becomes a Defaulting Lender or invokes Section 2.22, or
+if any Lender shall refuse to consent to any waiver, amendment or other
+modification that would otherwise require such Lender’s consent but to which the
+Required Lenders have consented, or if the credit (or similar) rating of any
+Lender (or any Parent thereof) by one or more of S&P or Moody’s or any other
+nationally recognized statistical rating organization shall at any time be lower
+than BBB/Baa2 (or the equivalent), or if, as to any Lender, such Lender (or
+Parent thereof) shall at any time have no credit (or similar) rating in effect
+by at least one such organization, or if any Lender or its Parent has become the
+subject of a Bail-In Action (or any case or other proceeding in which a Bail-In
+Action may occur), or if any Lender is a Disqualified Institution at the time it
+becomes a Lender or any Lender assigns or participates all or any portion of its
+Loans and/or Commitments to a Disqualified Institution in violation of Section
+12.04, without the written consent of the Borrower, then the Company may, at its
+sole expense and effort, upon notice to such Lender and the Administrative
+Agent, require such Lender to assign and delegate, without recourse (in
+accordance with and subject to the restrictions contained in Section 12.04), all
+its interests, rights and obligations under this Agreement to an assignee that
+shall assume such obligations (which assignee may be another Lender, if a Lender
+accepts such assignment); provided that (i) the Company shall have received the
+prior written consent of the Administrative Agent, which consent shall not
+unreasonably be withheld, conditioned or delayed and (ii) such Lender shall have
+received payment of an amount equal to the outstanding principal of its Loans,
+accrued interest thereon, accrued fees and all other amounts payable to it
+hereunder, from the assignee (to the extent of such outstanding principal and
+accrued interest and fees) or the Company or the relevant Borrower (in the case
+of all other amounts). Each party hereto agrees that (1) an assignment required
+pursuant to this paragraph may be effected pursuant to an Assignment and
+Assumption executed by the Company, the Administrative Agent and the assignee
+(or, to the extent applicable, an agreement incorporating an Assignment and
+Assumption by reference pursuant to an Approved Electronic Platform as to which
+the Administrative Agent and such parties are participants), and (2) the Lender
+required to make such assignment need not be a party thereto in order for such
+assignment to be effective and shall be deemed to have consented to and be bound
+by the terms thereof; provided that, following the effectiveness of any such
+assignment, the other parties to such assignment agree to execute and deliver
+such documents necessary to evidence such assignment as reasonably requested by
+the applicable Lender, provided that any such documents shall be without
+recourse to or warranty by the parties thereto. Notwithstanding any other
+provision of this Agreement to the contrary, if a Lender has become the subject
+of a Bail-In Action (or any case or other proceeding in which a Bail-In Action
+may occur) (each, a “Bail-In Lender”), then the Company may terminate such
+Bail-In Lender’s Commitment hereunder, provided that (A) no Default or Event of
+Default shall have occurred and be continuing at the time of such Commitment
+termination, (B) in the case of a Bail-In Lender, the Company shall concurrently
+terminate the Commitment of each other Lender that is a Bail-In Lender at such
+time, (C) the Administrative Agent and the Required Lenders shall have consented
+to each such Commitment termination (such consents not to be unreasonably
+withheld, conditioned or delayed, but may include consideration of the adequacy
+of the liquidity of the Company and its Subsidiaries) and (D) such Bail-In
+Lender shall have been paid all amounts then due to it under this Agreement and
+each other Loan Document (which, for the avoidance of doubt, the respective
+Borrowers may pay in connection with any such termination without making ratable
+payments to any other Lender (other than another Lender that has a Commitment
+that concurrently is being terminated under this Section 2.19(b))).
+
+ 
+
+
+
+43
+
+ 
+
+ 
+
+Section 2.20.      Currency Equivalents. (a) The Administrative Agent shall
+determine the Dollar Amount of: (i) each Alternative Currency Loan on each of
+the following: (x) the date of the Borrowing of such Loan and (y) each date of a
+conversion or continuation of such Loan pursuant to the terms of this Agreement;
+and (ii) any Borrowing, on any additional date as the Administrative Agent may
+determine at any time when an Event of Default exists. Each day upon or as of
+which the Administrative Agent determines Dollar Amounts as described in the
+preceding clauses (i) and (ii) is herein described as a ��Computation Date” with
+respect to each Loan and/or Borrowing for which a Dollar Amount is determined on
+or as of such day, and the Administrative Agent shall notify the Company and the
+Lenders of all such determinations and related computations on such Computation
+Date.
+
+ 
+
+(b)         If, other than as a result of fluctuations in currency exchange
+rates, after giving effect to any such determination of a Dollar Amount, the
+Total Revolving Credit Exposure of all Lenders exceed the aggregate amount of
+the Commitments or if at any time, solely as a result of fluctuations in
+currency exchange rates, the aggregate Dollar Amount of Loans exceeds 105% of
+the aggregate amount of the Commitment, the Borrowers shall within five
+Euro-Currency Business Days prepay outstanding Loans (as selected by the Company
+and notified to the Lenders through the Administrative Agent not less than three
+Euro-Currency Business Days prior to the date of prepayment) or take other
+action to the extent necessary to eliminate any such excess.
+
+ 
+
+Section 2.21.      Margin Determinations. The Administrative Agent shall
+determine the Applicable Rate from time to time in accordance with the
+provisions set forth below:
+
+ 
+
+The “Euro-Currency Margin” at any date is a rate per annum equal to the then
+applicable rate set forth in the “Pricing Grid” below under the column headed
+“Euro-Currency Margin.”
+
+ 
+
+The “ABR Margin” at any date is a rate per annum equal to the then applicable
+rate set forth in the “Pricing Grid” below under the column headed “ABR Margin.”
+
+ 
+
+
+
+44
+
+ 
+
+ 
+
+ 
+
+The “Commitment Fee Rate” at any date is a rate per annum equal to the then
+applicable rate set forth in the “Pricing Grid” below under the column headed
+“Commitment Fee.”
+
+ 
+
+Pricing Grid Pricing
+Level Commitment
+ Fee Euro-Currency
+Margin ABR
+Margin I 0.20% 1.25% 0.25% II 0.30% 1.50% 0.50% III 0.35% 1.75% 0.75% IV 0.40%
+1.875% 0.875% V 0.50% 2.00% 1.00%
+
+ 
+
+For purposes of the foregoing table, the following terms have the following
+meanings, subject to the further provisions of this Section:
+
+ 
+
+“Level I Pricing” applies at any date if, at such date, the Company’s senior
+unsecured long-term debt is rated A+ or higher by S&P and A1 or higher by
+Moody’s.
+
+ 
+
+“Level II Pricing” applies at any date if, at such date (i) no better Pricing
+Level applies and (ii) the Company’s senior unsecured long-term debt is rated A
+by S&P and A2 by Moody’s.
+
+ 
+
+“Level III Pricing” applies at any date if, at such date (i) no better Pricing
+Level applies and (ii) the Company’s senior unsecured long-term debt is rated A-
+by S&P and A3 by Moody’s.
+
+ 
+
+“Level IV Pricing” applies at any date if, at such date, (i) no better Pricing
+Level applies and (ii) the Company’s senior unsecured long-term debt is rated
+BBB+ by S&P and Baa1 by Moody’s.
+
+ 
+
+“Level V Pricing” applies at any date if, at such date, no other Pricing Level
+applies.
+
+ 
+
+“Pricing Level” refers to the determination of which of Level I, Level II, Level
+III, Level IV or Level V Pricing applies at any date. A “better” Pricing Level
+is one with a lower roman numeral.
+
+ 
+
+“Rating Agency” means S&P or Moody’s (and their successors).
+
+ 
+
+In determining the applicable Pricing Level: (a) if ratings are available from
+the two Rating Agencies but are not equivalent, then (i) if the ratings
+differential is one ratings level, the Pricing Level shall be that applicable to
+the higher of the two ratings and (ii) if the ratings differential is two rating
+levels or more, the Pricing Level shall be that which would be applicable to a
+rating which is one rating level below the higher of the two ratings, (b) if a
+rating from only one Rating Agency is available, then the Pricing Level shall be
+that applicable to such rating and (c) if ratings are not available from either
+of the two Rating Agencies, then Level V Pricing shall apply.
+
+  
+
+45
+
+ 
+
+
+
+ 
+
+The credit ratings to be utilized for purposes of this Section are those
+assigned by S&P or Moody’s to the senior unsecured long-term debt securities of
+the Company without third-party credit enhancement, and any rating assigned to
+any other debt security of the Company shall be disregarded; provided that if no
+such rating is available from any one or more of the two Rating Agencies, the
+ratings used for purposes of determining the Pricing Level with respect to each
+such Rating Agency shall be the corporate family rating assigned by such Rating
+Agency to the Company. The rating in effect at any date is that in effect at the
+close of business on such date. If the rating system of any Rating Agency shall
+change, or if any Rating Agency shall cease to be in the business of rating
+corporate debt obligations, the Company and the Administrative Agent shall
+negotiate in good faith to amend this Section to reflect such changed rating
+system or the nonavailability of ratings from such Rating Agency and, pending
+the effectiveness of any such amendment, the Pricing Level shall be determined
+by reference to the rating most recently in effect prior to such change or
+cessation.
+
+ 
+
+Section 2.22.      Illegality. (a) If, after the Effective Date, the adoption of
+any applicable law, rule or regulation, or any change in any applicable law,
+rule or regulation, or any change in the interpretation or administration
+thereof by any Governmental Authority, central bank or comparable agency charged
+with the interpretation or administration thereof, or compliance by any Lender
+(or its Euro-Currency Lending Office) with any request or directive (whether or
+not having the force of law) of any such authority, central bank or comparable
+agency shall make it unlawful or impossible for any Lender (or its Euro-Currency
+Lending Office) to make, maintain or fund its Euro-Currency Loans to any
+Borrower and such Lender shall so notify the Administrative Agent, the
+Administrative Agent shall forthwith give notice thereof to the other Lenders
+and the Company, whereupon until such Lender notifies the Company and the
+Administrative Agent that the circumstances giving rise to such suspension no
+longer exist (which such Lender shall do promptly after becoming aware thereof),
+the obligation of such Lender to make Euro-Currency Loans to such Borrower, or
+to convert outstanding Loans to such Borrower into Euro-Dollar Loans, shall be
+suspended. If such notice is given with respect to Euro-Dollar Loans, each
+Euro-Dollar Loan of such Lender then outstanding shall be converted to an ABR
+Loan either (i) on the last day of the then current Interest Period applicable
+to such Euro-Dollar Loan if such Lender may lawfully continue to maintain and
+fund such Euro-Dollar Loan to such day or (ii) immediately if such Lender shall
+determine that it may not lawfully continue to maintain and fund such
+Euro-Dollar Loan to such day. If such notice is given with respect to
+Alternative Currency Loans, the relevant Borrower shall prepay such Alternative
+Currency Loans either (i) on the last day of the then current Interest Period
+applicable to such Alternative Currency Loan if such Lender may lawfully
+continue to maintain and fund such Alternative Currency Loan to such day or (ii)
+immediately if such Lender shall determine that it may not lawfully continue to
+maintain and fund such Alternative Currency Loan to such day.
+
+ 
+
+(b)         If it is unlawful for any Lender (or its Applicable Lending Office)
+to make or maintain Loans to any Subsidiary Borrower and such Lender shall so
+notify the Administrative Agent, the Administrative Agent shall forthwith give
+notice thereof to the other Lenders and the Company, whereupon until such Lender
+notifies the Company and the Administrative Agent that the circumstances giving
+rise to such suspension no longer exist (which such Lender shall do promptly
+after becoming aware thereof), the obligation of such Lender to make or maintain
+Loans to such Subsidiary Borrower shall be suspended. If such notice is given,
+each Loan of such Lender then outstanding to such Subsidiary Borrower shall be
+prepaid either (i) in the case of a Euro-Currency Loan, on the last day of the
+then current Interest Period applicable thereto if such Lender may lawfully
+continue to maintain such Loan to such day or (ii) immediately if clause (i)
+does not apply.
+
+ 
+
+
+
+46
+
+ 
+
+ 
+
+(c)         If so requested by the Administrative Agent and the Company, and
+provided that it may lawfully do so, any Lender whose Alternative Currency Loans
+have been prepaid pursuant to clause (a) of this Section or whose Loans to a
+Subsidiary Borrower have been prepaid pursuant to clause (b) of this Section
+shall purchase participations in the related Loans of the other Lenders, and
+such other adjustments shall be made, including without limitation Loans to the
+Company in an equivalent Dollar Amount in the event that participations in such
+related Loans may not lawfully be purchased by such Lenders, as may be required
+so that the credit exposure of the Lenders with respect to the Loans is shared
+on a basis proportionate to the Commitments of the Lenders.
+
+ 
+
+(d)         Before giving any notice to the Administrative Agent pursuant to
+this Section, such Lender shall designate a different Applicable Lending Office
+if such designation will avoid the need for giving such notice and will not, in
+the judgment of such Lender, be otherwise disadvantageous to such Lender.
+
+ 
+
+Section 2.23.      Defaulting Lenders. If any Lender becomes a Defaulting
+Lender, then the following provision shall apply for so long as such Lender is a
+Defaulting Lender:
+
+ 
+
+(a)         fees shall cease to accrue on the unused portion of the Commitment
+of such Defaulting Lender pursuant to Section 2.11(a).
+
+ 
+
+In the event that the Administrative Agent and the Borrower reasonably determine
+that a Defaulting Lender has adequately remedied all matters that caused such
+Lender to be a Defaulting Lender, then on such date such Lender shall purchase
+at par such of the Loans of the other Lenders as the Administrative Agent shall
+determine is necessary in order for such Lender to hold such Loans in accordance
+with its Applicable Percentage.
+
+ 
+
+Article 3
+Representations and Warranties
+
+ 
+
+The Company represents and warrants as of the Effective Date (and as of each
+subsequent date required under Section 4.02) to the Administrative Agent and the
+Lenders that:
+
+ 
+
+Section 3.01.      Organization; Powers. It and each Significant Subsidiary
+(a) is duly organized, validly existing and in good standing under the laws of
+the jurisdiction of its organization, (b) has all requisite power and authority
+to own its property and assets and to carry on its business as now conducted and
+as proposed to be conducted, except where the failure to have such power and
+authority could not reasonably be expected to result in a Material Adverse
+Effect, (c) is qualified to do business in every jurisdiction where such
+qualification is required, except where the failure so to qualify could not
+reasonably be expected to result in a Material Adverse Effect, and (d) has the
+power and authority to execute, deliver and perform its obligations under each
+Loan Document to which it is a party and under each other agreement or
+instrument contemplated thereby to which it is or will be a party and, in the
+case of any Borrower, to borrow hereunder.
+
+ 
+
+
+
+47
+
+ 
+
+ 
+
+Section 3.02.      Authorization. The Transactions (a) have been duly authorized
+by all requisite corporate, partnership, limited liability company or analogous
+and, if required, stockholder, partner, member or analogous action and (b) will
+not (i) materially violate any provision of law, statute, rule or regulation, or
+of the certificate or articles of incorporation or other constitutive documents
+or by-laws of any Credit Party or any Significant Subsidiary, (ii) materially
+violate any order of any Governmental Authority or (iii) materially violate any
+provision of any material indenture, agreement or other instrument to which any
+Credit Party or any Significant Subsidiary is a party or by which any of them or
+any of their property is or may be bound, (iv) be in material conflict with,
+result in a material breach of or constitute (alone or with notice or lapse of
+time or both) a material default under any such indenture, agreement or other
+instrument or (v) result in the creation or imposition of any Lien upon any
+property or assets of any Credit Party or any Significant Subsidiary (other than
+under any Loan Document).
+
+ 
+
+Section 3.03.      Enforceability. This Agreement has been duly executed and
+delivered by the Company and constitutes, and each other Loan Document to which
+any Credit Party is party, when executed and delivered by such Credit Party,
+will constitute, a legal, valid and binding obligation of each such Credit Party
+enforceable against each such Credit Party in accordance with its terms, subject
+to applicable bankruptcy, insolvency, reorganization, moratorium or other
+similar laws affecting creditors’ rights generally and subject to general
+principles of equity, regardless of whether considered in a proceeding in equity
+or at law. The Loans and all other obligations or liabilities of the Company and
+each other Borrower hereunder shall not be subordinated in right of payment to
+any other Indebtedness of the Company or such Borrower, respectively (it being
+understood that secured obligations of the Company or any other Borrower have,
+by virtue of such security, a prior claim on the related collateral).
+
+ 
+
+Section 3.04.      Governmental Approvals. No action, consent or approval of,
+registration or filing with or other action by any Governmental Authority to be
+made or obtained by any Credit Party is or will be required in connection with
+the Transactions, except such as will have been made or obtained on or before
+the Effective Date and thereafter will be in full force and effect and any
+informational filing with the Securities and Exchange Commission.
+
+ 
+
+Section 3.05.      Financial Statements. (a) The Company has heretofore
+furnished to the Lenders (i) its Consolidated balance sheet and related
+Consolidated statements of earnings, cash flows and shareholders’ equity as of
+and for the fiscal year ended December 31, 2019, audited by and accompanied by
+the opinion of Pricewaterhouse Coopers LLP, independent public accountants and
+(ii) its Consolidated balance sheet and related Consolidated statements of
+earnings and cash flows as of and for the fiscal quarter ended March 29, 2020,
+certified by its chief financial officer. Such financial statements present
+fairly in all material respects the financial position of the Company and its
+Consolidated Subsidiaries as of such dates and their results of operations and
+cash flows for such periods. Such statements of financial position and the notes
+thereto disclose all material liabilities, direct or contingent, of the Company
+and its Consolidated Subsidiaries as of the dates thereof required to be
+disclosed under GAAP. Such financial statements were prepared in accordance with
+GAAP applied on a consistent basis.
+
+ 
+
+
+
+48
+
+ 
+
+ 
+
+(b)         Since December 31, 2019, there has been no material adverse change
+in the business, assets, property or financial condition of the Company and its
+Subsidiaries taken as a whole (excluding, for the avoidance of doubt, changes or
+effects directly arising out of or otherwise directly related to the impact of
+the COVID-19 pandemic on the Company’s operations, as described in any Form
+10-K, Form 10-Q or Form 8-K filed by the Company with the Securities and
+Exchange Commission prior to the Effective Date).
+
+ 
+
+Section 3.06.      Litigation; Compliance with Laws. (a) There are not any
+actions, suits, proceedings or governmental investigations at law or in equity
+or by or before any Governmental Authority now pending or, to the knowledge of
+the Company, threatened in writing against the Company or any Subsidiary or any
+business, property or rights of any such Person (i) which involve the Loan
+Documents or the Transactions or (ii) as to which there is a reasonable
+possibility of an adverse determination which could, individually or in the
+aggregate, reasonably be expected to result in a Material Adverse Effect.
+
+ 
+
+(b)         Neither the Company nor any of the Subsidiaries is in violation of
+any law, rule or regulation (including, without limitation, any Environmental
+Law, the Trading with the Enemy Act of the United States of America (as
+amended), any of the foreign assets control regulations of the United States
+Treasury Department (as amended) and the Patriot Act), or in default with
+respect to any judgment, writ, injunction or decree of any Governmental
+Authority, where such violation or default could reasonably be expected to
+result in a Material Adverse Effect.
+
+ 
+
+Section 3.07.      Federal Reserve Regulations. The making of the Loans
+hereunder and the use of the proceeds thereof as contemplated hereby will not
+violate or be inconsistent with Regulation U or Regulation X. After application
+of the proceeds of any Loan, not more than 25% of the assets of the Company and
+its Subsidiaries taken as a whole will be represented by margin stock (within
+the meaning of Regulation U).
+
+ 
+
+Section 3.08.      No Regulatory Restrictions on Borrowing. Neither the Company
+nor any other Borrower is (a) an “investment company” as defined in, or subject
+to regulation under, the Investment Company Act of 1940, as amended, or (b)
+subject to any other applicable regulatory scheme which restricts its ability to
+incur the indebtedness to be incurred hereunder.
+
+ 
+
+Section 3.09.      [Reserved].
+
+ 
+
+Section 3.10.      [Reserved].
+
+ 
+
+Section 3.11.      [Reserved].
+
+ 
+
+Section 3.12.      Beneficial Ownership Certification. As of the Effective Date,
+to the best knowledge of the Borrower, the information included in the
+Beneficial Ownership Certification provided on or prior to the Effective Date to
+any Lender in connection with this Agreement is true and correct in all material
+respects.
+
+ 
+
+
+
+49
+
+ 
+
+ 
+
+Section 3.13.      Anti-Corruption Laws and Sanctions. Each of the Credit
+Parties has implemented and maintains in effect policies and procedures designed
+to promote and achieve compliance by the Credit Parties and their respective
+subsidiaries, directors, officers, employees and agents with Anti-Corruption
+Laws and applicable Sanctions, and each of the Credit Parties, their respective
+subsidiaries and their respective officers and employees and, to the knowledge
+of the executive officers of each Credit Party, its directors and agents are in
+compliance with Anti-Corruption Laws and applicable Sanctions, in each case in
+all material respects. None of (a) the Credit Parties or any of their respective
+subsidiaries or, to the knowledge of the applicable Credit Party, any of their
+respective directors, officers or employees, or (b) to the knowledge of the
+Credit Parties, any agent of the Credit Parties or any of their respective
+subsidiaries that will act in any capacity in connection with or directly
+benefit from the credit facility established hereby, is a Sanctioned Person. No
+Borrowing or use of proceeds thereof by any Credit Party will violate
+Anti-Corruption Laws or applicable Sanctions.
+
+ 
+
+Article 4
+Conditions
+
+ 
+
+Section 4.01.      Effective Date. The obligations of the Lenders to make Loans
+shall not become effective until the date on which each of the following
+conditions is satisfied (or waived in accordance with Section 12.02):
+
+ 
+
+(a)         The Administrative Agent (or its counsel) shall have received from
+each party hereto either (i) a counterpart of this Agreement signed on behalf of
+such party or (ii) written evidence satisfactory to the Administrative Agent
+(which may include facsimile transmission or e-mail of a signed signature page
+of this Agreement) that such party has signed a counterpart of this Agreement.
+
+ 
+
+(b)         The Administrative Agent shall have received a favorable written
+opinion (addressed to the Administrative Agent and the Lenders and dated the
+Effective Date) of Foley & Lardner LLP, special New York counsel for the
+Company, substantially in the form of Exhibit B-1 and Sharon Barner, internal
+counsel to the Company, substantially in the form of Exhibit B-2, , in each case
+covering such other matters relating to the Company, the Loan Documents or the
+Transactions as the Administrative Agent shall reasonably request. The Company
+hereby requests such counsel to deliver such opinions.
+
+ 
+
+(c)         The Administrative Agent shall have received such documents and
+certificates as the Administrative Agent or its counsel may reasonably request
+relating to the organization, existence and good standing of the Company, the
+authorization of the Transactions and any other legal matters relating to the
+Company, the Loan Documents or the Transactions, all in form and substance
+reasonably satisfactory to the Administrative Agent and its counsel.
+
+ 
+
+(d)         The Administrative Agent shall have received a certificate, dated
+the Effective Date and signed by the President, a Vice President or a Financial
+Officer of the Company, confirming compliance with the conditions set forth in
+paragraphs (a) and (b) of Section 4.02.
+
+ 
+
+(e)         The Administrative Agent shall have received all fees and other
+amounts due and payable on or prior to the Effective Date, including, to the
+extent invoiced reasonably in advance of the Effective Date, reimbursement or
+payment of all out-of-pocket expenses required to be reimbursed or paid by the
+Company under the Loan Documents.
+
+ 
+
+(f)          [Reserved.]
+
+ 
+
+
+
+50
+
+ 
+
+ 
+
+(g)         (i) The Lenders shall have received all documentation and other
+information reasonably requested by such Lender in writing at least five (5)
+days prior to the Effective Date in order to allow it to comply with applicable
+“know your customer” and anti-money laundering rules and regulations with
+respect to the Company and (ii) to the extent the Company qualifies as a “legal
+entity customer” under the Beneficial Ownership Regulation, at least five (5)
+days prior to the Effective Date, any Lender that has reasonably requested a
+Beneficial Ownership Certification at least ten (10) days prior to the Effective
+Date in relation to the Company shall have received such Beneficial Ownership
+Certification (provided that, upon the execution and delivery by such Lender of
+its signature page to this Agreement, the conditions set forth in this
+clause (g) shall be deemed to be satisfied).
+
+ 
+
+The Administrative Agent shall notify the Company and the Lenders of the
+Effective Date, and such notice shall be conclusive and binding.
+
+ 
+
+Section 4.02.      Each Credit Event. The obligation of each Lender to make a
+Loan on the occasion of any Borrowing is subject to the satisfaction of the
+following conditions:
+
+ 
+
+(a)         The representations and warranties of each Credit Party set forth in
+each Loan Document to which it is party (other than those set forth in Section
+3.05(b) and Section 3.06(a)(ii)) shall be true and correct in all material
+respects (except to the extent such representation or warranty is already
+qualified by materiality or Material Adverse Effect, in which case, in all
+respects) on and as of the date of such Borrowing, except to the extent any such
+representation and warranty expressly relates to an earlier date in which case
+such representation and warranty shall be true and correct in all material
+respects as of such earlier date (except to the extent such representation or
+warranty is already qualified by materiality or Material Adverse Effect, in
+which case, in all respects).
+
+ 
+
+(b)         At the time of and immediately after giving effect to such
+Borrowing, no Default shall have occurred and be continuing.
+
+ 
+
+(c)         Receipt by the Administrative Agent of a Borrowing Request in
+accordance with Section 2.03.
+
+ 
+
+Each Loan shall be deemed to constitute a representation and warranty by the
+Borrower on the date thereof as to the matters specified in paragraphs (a) and
+(b) of this Section.
+
+ 
+
+Section 4.03.      First Borrowing by Each Eligible Subsidiary. The obligation
+of each Lender to make a Loan on the occasion of the first Borrowing by each
+Eligible Subsidiary is subject to the satisfaction of the following further
+conditions:
+
+ 
+
+(a)         Receipt by the Administrative Agent of an opinion of counsel for
+such Eligible Subsidiary reasonably acceptable to the Administrative Agent,
+substantially to the effect of Exhibit C hereto and covering such other matters
+relating to the transactions contemplated hereby as the Required Lenders may
+reasonably require.
+
+ 
+
+(b)         Receipt by the Administrative Agent of all documents which it may
+reasonably request relating to the existence of such Eligible Subsidiary, the
+corporate authority for and the validity of the Election to Participate of such
+Eligible Subsidiary and this Agreement of such Eligible Subsidiary, and any
+other matters relevant thereto, all in form and substance reasonably
+satisfactory to the Administrative Agent.
+
+ 
+
+
+
+51
+
+ 
+
+ 
+
+(c)         Receipt by each Lender not less than five Euro-Currency Business
+Days prior to the date of such Borrowing or issuance of all documentation and
+other information reasonably requested in writing by such Lender in order to
+allow it to comply with applicable “know your customer” and anti-money
+laundering rules and regulations with respect to such Eligible Subsidiary
+(including in connection with the Patriot Act and the Beneficial Ownership
+Regulation).
+
+ 
+
+(d)         Receipt by the Administrative Agent of a Borrowing Request in
+accordance with Section 2.03.
+
+ 
+
+(e)         Receipt by the Administrative Agent of the Election to Participate
+for such Eligible Subsidiary, duly executed by such Eligible Subsidiary, the
+Company, the Administrative Agent and each Lender.
+
+ 
+
+Article 5
+Affirmative Covenants
+
+ 
+
+Until the Commitments have expired or been terminated and the principal of and
+interest on each Loan and all fees payable hereunder shall have been paid in
+full, the Company covenants and agrees with the Lenders that it will, and will
+cause each of its Subsidiaries or Significant Subsidiaries, as appropriate, to:
+
+ 
+
+Section 5.01.      Existence; Businesses and Properties. (a) Do or cause to be
+done all things necessary to preserve, renew and keep in full force and effect
+its legal existence, except (i) in the case of each Subsidiary that is not a
+Borrower to the extent that the failure to take any such action could not
+reasonably be expected to have a Material Adverse Effect or (ii) as otherwise
+expressly permitted under Section 6.02.
+
+ 
+
+(b)         Do or cause to be done all things necessary to (i) obtain, preserve,
+renew, extend and keep in full force and effect the rights, licenses, permits,
+franchises, authorizations, patents, copyrights, trademarks and trade names (as
+applicable) material to the conduct of its business, (ii) comply in all material
+respects with all applicable laws, rules, regulations and orders of any
+Governmental Authority, whether now in effect or hereafter enacted, and (iii) at
+all times maintain and preserve all property material to the conduct of such
+business and keep such property in good repair, working order and condition
+(ordinary wear and tear excepted) and from time to time make, or cause to be
+made, all needful and proper repairs, renewals, additions, improvements and
+replacements thereto necessary in order that the business carried on in
+connection therewith may be properly conducted at all times, except in the case
+of clauses (i), (ii) and (iii) above, to the extent that the failure to do so
+could not reasonably be expected to result in a Material Adverse Effect.
+
+ 
+
+
+
+52
+
+ 
+
+ 
+
+Section 5.02.      Insurance. In the case of the Company and each Significant
+Subsidiary, keep its insurable properties insured at all times in such amounts
+(with no greater risk retention) and against such risks as are customarily
+maintained by companies of established repute engaged in the same or similar
+businesses operating in the same or similar locations (including without
+limitation by the maintenance of self-insurance to the extent consistent with
+industry practice), and maintain such other insurance, to such extent and
+against such risks, including fire and other risks insured against by extended
+coverage, as is customary with companies in the same or similar businesses,
+including public liability insurance against claims for personal injury or death
+or property damage occurring upon, in, about or in connection with the use of
+any properties owned, occupied or controlled by it, except in each case to the
+extent that the failure to do so could not in the aggregate reasonably be
+expected to result in a Material Adverse Effect.
+
+ 
+
+Section 5.03.      Taxes. In the case of the Company and each Significant
+Subsidiary, pay and discharge all income and other material taxes, assessments
+and governmental charges or levies imposed upon it or upon its income or profits
+or in respect of its property, before the same shall become delinquent or in
+default; provided that such payment and discharge shall not be required with
+respect to any such tax, assessment, charge or levy so long as the validity or
+amount thereof shall be contested in good faith by appropriate action and the
+Company or such Significant Subsidiary shall, to the extent required by GAAP,
+set aside on its books adequate reserves with respect thereto, except in each
+case, to the extent that the failure to do so could not in the aggregate
+reasonably be expected to result in a Material Adverse Effect.
+
+ 
+
+Section 5.04.      Financial Statements, Reports, Etc. In the case of the
+Company, furnish to the Administrative Agent (which will promptly furnish same
+to each Lender):
+
+ 
+
+(a)         within 90 days after the end of each fiscal year, its Consolidated
+balance sheet and related Consolidated statements of earnings, cash flows and
+shareholders’ equity, showing the financial position of the Company and its
+Consolidated Subsidiaries as of the close of such fiscal year and their results
+of operations and cash flows for such year, all audited by
+PricewaterhouseCoopers LLP or other independent public accountants of recognized
+national standing and accompanied by an opinion of such accountants (which shall
+not be qualified in any material respect except with the consent of the Required
+Lenders) to the effect that such Consolidated financial statements fairly
+present in all material respects the financial position, results of operations
+and cash flows of the Company on a Consolidated basis in accordance with GAAP
+consistently applied (except with respect to consistency as otherwise indicated
+therein), provided that if the independent auditor’s report with respect to such
+consolidated financial statements is a combined report (that is, one report
+containing both an opinion on such consolidated financial statements and an
+opinion on internal controls over financial reporting), then such report may
+include a qualification or limitation relating to the Company’s system of
+internal controls over financial reporting due to the exclusion of any acquired
+business from the management report on internal controls over financial
+reporting made pursuant to Item 308 of Regulation S-K of the Securities and
+Exchange Commission, to the extent such exclusion is permitted under provisions
+published by the Securities and Exchange Commission; provided further, if
+applicable, the independent auditor’s report may contain references to
+independent audits performed by other independent public accountants of
+recognized national standing as contemplated by AU Section 543, Part of Audit
+Performed by Other Independent Auditors, or any successor standard under GAAP.
+
+ 
+
+
+
+53
+
+ 
+
+ 
+
+(b)         within 45 days after the end of each of the first three fiscal
+quarters of each fiscal year, its Consolidated balance sheet and related
+Consolidated statements of earnings and cash flows showing the financial
+position of the Company and its Consolidated Subsidiaries as of the close of
+such fiscal quarter and their results of operations for such fiscal quarter and
+the then elapsed portion of the fiscal year and their cash flows for the then
+elapsed portion of the fiscal year, all certified by one of its Financial
+Officers as fairly presenting in all material respects the financial position,
+results of operations and cash flows of the Company on a Consolidated basis in
+accordance with GAAP consistently applied (except with respect to consistency as
+otherwise indicated therein), subject to normal year-end audit adjustments and
+the absence of footnotes;
+
+ 
+
+(c)         concurrently with any delivery of financial statements under
+paragraph (a) or (b) above, a certificate, substantially in the form of Exhibit
+F hereto, of a Financial Officer (i) certifying that no Default has occurred or,
+if a Default has occurred, specifying the nature and extent thereof and any
+corrective action taken or proposed to be taken with respect thereto and (ii)
+setting forth computations in reasonable detail reasonably satisfactory to the
+Administrative Agent demonstrating compliance with the covenants contained in
+Section 7.01;
+
+ 
+
+(d)         promptly after the same become publicly available, copies of all
+periodic and other reports, proxy statements and other materials filed by it
+with the Securities and Exchange Commission, or any Governmental Authority
+succeeding to any of or all the functions of such Commission, or with any
+national securities exchange, or distributed to its shareholders generally, as
+the case may be; and
+
+ 
+
+(e)         promptly, from time to time, (x) such other information regarding
+the operations, business affairs and financial condition of the Company or any
+Subsidiary, or compliance with the terms of the Loan Documents, as the
+Administrative Agent, at the request of any Lender, may reasonably request and
+(y) information and documentation reasonably requested by the Administrative
+Agent or any Lender for purposes of compliance with applicable “know your
+customer” and anti-money laundering rules and regulations, including the Patriot
+Act and the Beneficial Ownership Regulation (it being understood and agreed that
+neither the Company nor any of its Subsidiaries shall be required to disclose or
+discuss, or permit the inspection, examination or making of extracts of, any
+records, books, information or account or other matter (1) in respect of which
+disclosure to the Administrative Agent, any Lender or their representatives is
+then prohibited by applicable law or any agreement binding on the Company or its
+Subsidiaries, (2) that is protected from disclosure by the attorney-client
+privilege or the attorney work product privilege or (3) constitutes
+non-financial trade secrets or non-financial proprietary information).
+
+ 
+
+Information required to be delivered pursuant to paragraphs 5.04(a), 5.04(b) or
+5.04(d) above shall be deemed to have been delivered on the date on which (x)
+such information has been posted on the Internet by the Securities and Exchange
+Commission at https://www.sec.gov/edgar/searchedgar/webusers.htm (or any
+successor website) or (y) the Company provides notice to the Administrative
+Agent that such information has been posted on the Company’s website on the
+Internet at www.cummins.com or at another website identified in such notice and
+accessible by the Lenders without charge; provided that (i) such notice may be
+included in a certificate delivered pursuant to paragraph 5.04(c) and (ii) the
+Borrower shall deliver paper copies of the information referred to in paragraphs
+5.04(a) or 5.04(b) to any Lender which requests such delivery. Notwithstanding
+the above, if any report, certificate or other information required under this
+Section 5.04 is due on a day that is not a Domestic Business Day, then such
+report, certificate or other information shall be required to be delivered on
+the first day after such day that is a Domestic Business Day.
+
+  
+
+54
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+ 
+
+Section 5.05.      Litigation and Other Notices. In the case of the Company,
+furnish to the Administrative Agent (which will promptly notify each Lender)
+prompt written notice of the following:
+
+ 
+
+(a)         any Default of which an executive officer of the Company has
+knowledge, specifying the nature and extent thereof and the corrective action
+(if any) proposed to be taken with respect thereto;
+
+ 
+
+(b)         the filing or commencement of, or any written threat or notice of
+intention of any Person to file or commence, any action, suit or proceeding,
+whether at law or in equity or by or before any Governmental Authority, against
+the Company or any Affiliate thereof as to which there is a reasonable
+possibility of an adverse determination and which, if adversely determined,
+could reasonably be expected to result in a Material Adverse Effect;
+
+ 
+
+(c)         the occurrence of any ERISA Event that, alone or together with any
+other ERISA Events which have occurred, could reasonably be expected to result
+in a Material Adverse Effect;
+
+ 
+
+(d)         any development that has resulted in, or could reasonably be
+expected to result in, a Material Adverse Effect;
+
+ 
+
+(e)         any change, following the effectiveness thereof, in the Company’s
+senior unsecured debt rating from S&P or Moody’s or in its corporate credit
+rating from S&P; and
+
+ 
+
+(f)          any change in the information provided in the Beneficial Ownership
+Certification delivered to such Lender that would result in a change to the list
+of beneficial owners identified in such certification.
+
+ 
+
+Section 5.06.      Maintaining Records; Access to Properties and Inspections. In
+the case of the Company and each Significant Subsidiary, maintain all financial
+records in a manner sufficient to be able to prepare financial statements in
+accordance with GAAP and permit any representatives designated by the
+Administrative Agent or any Lender, upon reasonable prior notice, to visit and
+inspect the financial records and the properties of the Company or any
+Significant Subsidiary at reasonable times and as often as reasonably requested
+and to make extracts from and copies of such financial records, and permit any
+representatives designated by any Administrative Agent or any Lender to discuss
+the affairs, finances and condition of the Company or any Significant Subsidiary
+with the officers thereof and independent accountants therefor; provided that
+(i) the Company or such Significant Subsidiary may require that a representative
+appointed by it be present at such inspections or discussions, (ii) the
+obligations of the Company and its Significant Subsidiaries under this Section
+are subject to, and the Administrative Agent and any such Lender shall comply
+with, all applicable confidentiality restrictions, (iii) unless an Event of
+Default has occurred and is continuing, the Company and its Significant
+Subsidiaries, taken as a whole, shall only be required to reimburse the
+Administrative Agent and each Lender in the aggregate for the expenses incurred
+by the Administrative Agent and each Lender for one such visit and inspection by
+the Administrative Agent and each Lender in any calendar year and (iv) it is
+understood and agreed that neither the Company nor any of its Subsidiaries shall
+be required to disclose or discuss, or permit the inspection, examination or
+making of extracts of, any records, books, information or account or other
+matter (1) in respect of which disclosure to the Administrative Agent, any
+Lender or their representatives is then prohibited by applicable law or any
+agreement binding on the Company or its Subsidiaries, (2) that is protected from
+disclosure by the attorney-client privilege or the attorney work product
+privilege or (3) constitutes non-financial trade secrets or non-financial
+proprietary information.
+
+ 
+
+
+
+55
+
+ 
+
+ 
+
+Section 5.07.      Use of Proceeds. Use the proceeds of the Loans only for the
+general corporate purposes of the Company and its Subsidiaries. The Company and
+its Subsidiaries are not engaged in the business of extending credit for the
+purpose of purchasing or carrying margin stock (within the meaning of Regulation
+U). No part of the proceeds of any Loan will be used, whether directly or
+indirectly, (a) for any purpose that entails a violation of any of the
+Regulations of the Board, including Regulation T, Regulation U and Regulation X,
+or (b) in any hostile acquisition of another Person. None of the Credit Parties
+will request any Borrowing, and none of the Credit Parties shall use, and each
+of the Credit Parties shall procure that none of its subsidiaries nor its or
+their respective directors, officers, employees and agents shall use, the
+proceeds of any Borrowing (A) in furtherance of an offer, payment, promise to
+pay, or authorization of the payment or giving of money, or anything else of
+value, to any Person in violation of any Anti-Corruption Laws, (B) for the
+purpose of funding or financing any activities, business or transaction of or
+with any Sanctioned Person, or in any Sanctioned Country, in each case to the
+extent such activities, business or transaction would violate Sanctions if
+conducted by a company organized in the United States or by a company organized
+in a European Union member state or the United Kingdom, or (C) in any other
+manner that would result in liability to any Lender or the Administrative Agent
+under any applicable Sanctions or the violation of any Sanctions by any Lender
+or the Administrative Agent.
+
+ 
+
+Section 5.08.      Compliance with Laws. Comply with all applicable laws,
+statutes, rules and regulations, including Environmental Laws, and obtain,
+maintain and comply with any and all licenses, approvals, notifications,
+registrations or permits required by such applicable laws, statutes, rules and
+regulations except to the extent that, in any such case, failure to do so could
+not be reasonably expected to have a Material Adverse Effect. Each of the Credit
+Parties will maintain in effect and enforce policies and procedures designed to
+promote and achieve compliance by the Credit Parties and each of their
+respective subsidiaries and their respective directors, officers, employees and
+agents with Anti-Corruption Laws and applicable Sanctions, in each case in all
+material respects.
+
+ 
+
+Article 6
+
+
+
+Negative Covenants
+
+ 
+
+Until the Commitments have expired or terminated and the principal of and
+interest on each Loan and all fees payable hereunder have been paid in full, the
+Company covenants and agrees with the Lenders that it will not, and will not
+cause or permit any of its Subsidiaries to:
+
+ 
+
+Section 6.01.      Negative Pledge. Create, incur, assume or permit to exist any
+Lien on any property or assets (including stock or other securities of
+Subsidiaries) now owned or hereafter acquired by it or on any income or rights
+in respect of any thereof, except:
+
+ 
+
+
+
+56
+
+ 
+
+ 
+
+(a)         Liens imposed by law for taxes, assessments, governmental charges or
+levies that are not yet due or are being contested by proper action and for
+which adequate reserves in accordance with GAAP are established;
+
+ 
+
+(b)         carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s
+and other like Liens imposed by law, arising in the ordinary course of business
+and securing obligations that are not overdue by more than 30 days or are being
+contested in compliance with Section 5.03;
+
+ 
+
+(c)         pledges and deposits and other Liens made in the ordinary course of
+business in compliance with workers’ compensation, unemployment insurance and
+other social security laws or regulations;
+
+ 
+
+(d)         Liens (including deposits) to secure the performance of bids,
+tenders, trade contracts, leases, statutory obligations, surety and appeal
+bonds, performance bonds and other obligations of like nature, in each case in
+the ordinary course of business;
+
+ 
+
+(e)         easements, zoning restrictions, rights-of-way and similar
+encumbrances on real property imposed by law or arising in the ordinary course
+of business that do not secure any monetary obligations and do not materially
+detract from the value of the affected property or interfere materially with the
+ordinary conduct of business of the Company or any Subsidiary;
+
+ 
+
+(f)          any Lien existing on any property or asset prior to the acquisition
+thereof by the Company or any Subsidiary; provided that (i) such Lien is not
+created in contemplation of or in connection with such acquisition and (ii) such
+Lien does not apply to any other property or assets of the Company or any
+Subsidiary;
+
+ 
+
+(g)         Liens (including deposits) in connection with self-insurance;
+
+ 
+
+(h)         judgment or other similar Liens in connection with legal proceedings
+in an aggregate principal amount (net of amounts for which relevant insurance
+providers have delivered written acknowledgements of coverage) not to exceed
+$300,000,000; provided that the execution or other enforcement of such Liens is
+effectively stayed and the claims secured thereby are being actively contested
+in good faith by appropriate proceedings;
+
+ 
+
+(i)           Liens arising in connection with advances or progress payments
+under government contracts;
+
+ 
+
+(j)           Liens on assets of Subsidiaries securing Indebtedness payable to
+the Company or any Wholly-Owned Consolidated Subsidiary;
+
+ 
+
+(k)          Liens on cash and cash equivalents deposited to discharge and/or
+defease Indebtedness in accordance with the terms thereof;
+
+ 
+
+(l)           [Reserved]
+
+ 
+
+
+
+57
+
+ 
+
+ 
+
+(m)       Liens securing Indebtedness other than Indebtedness described in
+paragraphs (a) through (l) above, to the extent and only to the extent that the
+aggregate amount of Priority Indebtedness shall not exceed the greater of (x)
+$2,500,000,000 and (y) 12.5% of the Consolidated assets of the Company and its
+Consolidated Subsidiaries as reflected in the annual or quarterly report then
+most recently filed by the Company with the Securities and Exchange Commission,
+determined at the time such Liens are granted and at the time of any subsequent
+incurrence of Indebtedness secured thereby;
+
+ 
+
+(n)         Liens arising from leases, subleases or licenses granted to others
+which do not interfere in any material respect with the business of the Company
+or any of the Subsidiaries;
+
+ 
+
+(o)         Liens in respect of an agreement to dispose of any asset, to the
+extent such disposal is permitted by this Agreement;
+
+ 
+
+(p)         Liens arising under any retention of title arrangements entered into
+in the ordinary course of business or over goods or documents of title to goods
+arising in the ordinary course of documentary credit transactions;
+
+ 
+
+(q)         Liens arising due to any cash pooling, netting or composite
+accounting arrangements between any one or more of the Company and any of the
+Subsidiaries or between any one or more of such entities and one or more banks
+or other financial institutions where any such entity maintains deposits;
+
+ 
+
+(r)          customary rights of set off, revocation, refund or chargeback or
+similar rights under deposit disbursement, concentration account agreements or
+under the Uniform Commercial Code (or comparable foreign law) or arising by
+operation of law of banks or other financial institutions where the Company or
+any of the Subsidiaries maintains deposit, disbursement or concentration
+accounts in the ordinary course of business;
+
+ 
+
+(s)          the replacement, extension or renewal of any Lien permitted by
+clause (f) above upon or in the same assets subject thereto or the replacement,
+extension or renewal (to the extent the amount thereof is not increased) of the
+Indebtedness or other obligation secured thereby; and
+
+ 
+
+(t)           Liens on proceeds of any of the assets permitted to be the subject
+of any Lien or assignment permitted by this Section 6.01.
+
+ 
+
+Section 6.02.      Mergers, Consolidations, and Sales of Assets. In the case of
+the Company and any other Borrower, merge with or into or consolidate with any
+other Person, or permit any other Person to merge into or consolidate with it,
+or sell, transfer, lease or otherwise dispose of (in one transaction or in a
+series of related transactions) all or substantially all of its assets, or
+liquidate or dissolve or reorganize in a jurisdiction that is not an Approved
+Jurisdiction, except that, if at the time thereof and immediately after giving
+effect thereto no Default shall have occurred and be continuing, (i) any
+Subsidiary or other Person may merge into or consolidate with the Company in a
+transaction in which the Company is the surviving corporation, (ii) any
+Subsidiary that is a Borrower may merge into or consolidate with any other
+Person in a transaction in which the surviving entity is a Wholly-Owned
+Consolidated Subsidiary; provided that the surviving corporation shall be a
+Borrower organized under the laws of an Approved Jurisdiction, and (iii) any
+Subsidiary may sell, transfer, lease or otherwise dispose of its assets to any
+other Person.
+
+ 
+
+
+
+58
+
+ 
+
+ 
+
+Section 6.03.      Priority Indebtedness. In the case of Subsidiaries, incur,
+create, assume or permit to exist any Priority Indebtedness if, immediately
+after giving effect to the incurrence thereof, the aggregate amount of Priority
+Indebtedness would exceed the greater of (x) $2,500,000,000 and (y) 12.5% of the
+Consolidated assets of the Company and its Consolidated Subsidiaries as
+reflected in the annual or quarterly report then most recently filed by the
+Company with the Securities and Exchange Commission.
+
+ 
+
+Article 7
+
+
+
+Financial Covenant
+
+ 
+
+Section 7.01.      Net Debt to Total Capital. The Company will not permit the
+ratio (the “Net Debt to Total Capital Ratio”) of (a) Consolidated Net Debt to
+(b) Consolidated Total Capital, each determined as of the last day of each
+fiscal quarter, to be greater than 0.65:1; provided that, at any time after the
+definitive agreement for any Material Acquisition shall have been executed (or,
+in the case of a Material Acquisition in the form of a tender offer or similar
+transaction, after the offer shall have been launched) and prior to the
+consummation of such Material Acquisition (or termination of the definitive
+documentation in respect thereof (or such later date as such indebtedness ceases
+to constitute Acquisition Indebtedness as set forth in the definition of
+“Acquisition Indebtedness”)), any Acquisition Indebtedness (and the proceeds of
+such Indebtedness) shall be excluded from the determination of the Net Debt to
+Total Capital Ratio.
+
+
+
+ 
+
+Article 8
+
+
+
+Events of Default
+
+ 
+
+If any of the following events (“Events of Default”) shall occur:
+
+ 
+
+(a)         any representation or warranty made, or deemed made, in or pursuant
+to the Loan Documents, or any representation, warranty, statement or information
+contained in any written report, certificate, financial statement or other
+instrument furnished by or on behalf of any Credit Party in connection with or
+pursuant to the Loan Documents, shall prove to have been false or misleading in
+any material respect when so made, deemed made or furnished;
+
+ 
+
+(b)         default shall be made in the payment of any principal of any Loan
+when and as the same shall become due and payable, whether at the due date
+thereof or at a date fixed for prepayment thereof or pursuant to any provision
+of the Loan Documents or otherwise;
+
+ 
+
+(c)         default shall be made in the payment of any interest on any Loan or
+any fee or any other amount (other than an amount referred to in (b) above) due
+under the Loan Documents, when and as the same shall become due and payable, and
+such default shall continue unremedied for a period of five Domestic Business
+Days;
+
+ 
+
+(d)         default shall be made in the due observance or performance by the
+Company or any Subsidiary of any covenant, condition or agreement contained in
+Section 5.05(a), Section 5.07, Article 6 or Article 7 and such default shall
+continue unremedied for a period of five Domestic Business Days after the
+earlier of (i) a Financial Officer of the Company becoming aware thereof and
+(ii) notice thereof from the Administrative Agent or any Lender to the Company;
+
+ 
+
+
+
+59
+
+ 
+
+ 
+
+(e)         default shall be made in the due observance or performance by the
+Company or any Subsidiary of any covenant, condition or agreement contained in
+the Loan Documents (other than those specified in (b), (c) or (d) above) and
+such default shall continue unremedied for a period of ten Domestic Business
+Days after notice thereof from the Administrative Agent or any Lender to the
+Company;
+
+ 
+
+(f)          the Company or any Subsidiary shall (i) fail to pay any of its
+Indebtedness (excluding Indebtedness owing to the Company or any of its
+Subsidiaries) in excess of $125,000,000 in the aggregate when due and such
+failure shall continue after the applicable grace period, if any, specified in
+the agreement or instrument relating to such Indebtedness or (ii) fail to
+observe or perform any term, covenant or condition on its part to be observed or
+performed under any agreement or instrument relating to any such Indebtedness,
+when required to be observed or performed, and such failure shall continue after
+the applicable grace period, if any, specified in such agreement or instrument,
+if the effect of such failure is to accelerate, or permit the acceleration of,
+the maturity of such Indebtedness or such Indebtedness has been accelerated and
+such acceleration has not been rescinded; or any amount of Indebtedness in
+excess of $125,000,000 shall be required to be prepaid, defeased, purchased or
+otherwise acquired by the Company or any Subsidiary (other than by a regularly
+scheduled required prepayment and other than secured Indebtedness that becomes
+due as a result of the voluntary transfer of assets securing such Indebtedness),
+prior to the stated maturity thereof; provided that none of the following shall
+give rise to an Event of Default: (i) secured Indebtedness that becomes due as a
+result of the voluntary sale or transfer of assets securing such Indebtedness or
+a casualty or similar event, (ii) mandatory prepayments or offers to purchase of
+Indebtedness in accordance with the documentation governing such Indebtedness by
+reason of the receipt of net cash proceeds of (A) other Indebtedness, (B)
+dispositions (including, without limitation, as the result of casualty events
+and governmental takings) or (C) equity issuances, or by reason of the
+generation of excess cash flow in an amount equal to a percentage thereof,
+(iii) change of control offers made within 60 days after an acquisition with
+respect to, and effectuated pursuant to, Indebtedness of an acquired Person or
+Indebtedness assumed by the Company or a Subsidiary pursuant to a mandatory
+successor obligor clause under such Indebtedness in connection with the
+acquisition of all or substantially all of the assets of a Person, (iv) any
+default under Indebtedness of an acquired business if such default is cured, or
+such Indebtedness is repaid, within 60 days after the acquisition of such
+business so long as no other creditor accelerates or commences any kind of
+enforcement action in respect of such Indebtedness, (v) prepayments required by
+the terms of Indebtedness as a result of customary provisions in respect of
+illegality, replacement of lenders and gross-up provisions for Taxes, increased
+costs, capital adequacy and other similar customary requirements and (vi) any
+voluntary prepayment, redemption or other satisfaction of Indebtedness that
+becomes mandatory in accordance with the terms of such Indebtedness solely as
+the result of the Company or any Subsidiary delivering a prepayment, redemption
+or similar notice with respect to such prepayment, redemption or other
+satisfaction;
+
+ 
+
+
+
+60
+
+ 
+
+ 
+
+(g)         an involuntary proceeding shall be commenced or an involuntary
+petition shall be filed in a court of competent jurisdiction seeking (i) relief
+in respect of the Company or any Significant Subsidiary, or of a substantial
+part of the property or assets of the Company or any Significant Subsidiary,
+under Title 11 of the United States Code, as now constituted or hereafter
+amended, or any other Federal, state or foreign bankruptcy, insolvency,
+receivership or similar law, (ii) the appointment of a receiver, trustee,
+custodian, sequestrator, conservator or similar official for the Company or any
+Significant Subsidiary, or for a substantial part of the property or assets of
+the Company or any Significant Subsidiary, or (iii) the winding-up or
+liquidation of the Company or any Significant Subsidiary; and such proceeding or
+petition shall continue undismissed for 60 days, or an order or decree approving
+or ordering any of the foregoing shall be entered;
+
+ 
+
+(h)         the Company or any Significant Subsidiary shall (i) voluntarily
+commence any proceeding or file any petition seeking relief under Title 11 of
+the United States Code, as now constituted or hereafter amended, or any other
+Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
+(ii) consent to the institution of, or fail to contest in a timely and
+appropriate manner, any proceeding or the filing of any petition described in
+(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
+custodian, sequestrator, conservator or similar official for the Company or any
+Significant Subsidiary, or for a substantial part of the property or assets of
+the Company or any Significant Subsidiary, (iv) file an answer admitting the
+material allegations of a petition filed against it in any such proceeding, (v)
+make a general assignment for the benefit of creditors, (vi) admit in writing
+its inability or fail generally to pay its debts as they become due or (vii)
+take any action for the purpose of authorizing any of the foregoing;
+
+ 
+
+(i)           one or more judgments for the payment of money in an aggregate
+amount in excess of $125,000,000 shall be rendered against the Company, any
+Significant Subsidiary or any combination thereof and the same shall remain
+undischarged for a period of 30 consecutive days during which execution shall
+not be effectively stayed; provided, however, that any such judgment shall not
+be included in the calculation of the aggregate amount of judgments under this
+clause (i) if and for so long as (A) the amount of such judgment is covered by a
+valid and binding policy of insurance between the defendant and the insurer
+covering payment thereof and (B) such insurer, which shall be rated at least “A”
+by A.M. Best Company, has been notified of, and has not disputed the claim made
+for payment of, the amount of such judgment;
+
+ 
+
+(j)           a Change in Control shall occur;
+
+ 
+
+(k)         the provisions of Article 11 shall cease to constitute valid,
+binding and enforceable obligations of the Company for any reason, or any Credit
+Party shall have so asserted in writing; or
+
+ 
+
+(l)           an ERISA Event shall have occurred that, when taken together with
+all other ERISA Events that have occurred, could reasonably be expected to
+result in a Material Adverse Effect;
+
+ 
+
+
+
+61
+
+ 
+
+ 
+
+then, and in every such event (other than an event with respect to any Borrower
+described in paragraph (g) or (h) above), and at any time thereafter during the
+continuance of such event, the Administrative Agent may with the consent of the
+Required Lenders, and shall at the request of the Required Lenders, by notice to
+the Company, take any or all of the following actions at the same or different
+times: (i) terminate forthwith the Commitments and (ii) declare the Loans then
+outstanding to be forthwith due and payable, whereupon the principal of the
+Loans, together with accrued interest thereon and any unpaid accrued fees and
+all other liabilities of any Borrower accrued hereunder, shall become forthwith
+due and payable, without presentment, demand, protest or any other notice of any
+kind, all of which are hereby expressly waived by each Borrower, anything
+contained herein to the contrary notwithstanding; and upon the occurrence of any
+event described in paragraph (g) or (h) above with respect to any Borrower, the
+Commitments shall automatically terminate and the principal of all Loans then
+outstanding, together with accrued interest thereon and any unpaid accrued fees
+and all other liabilities of the Borrowers accrued hereunder, shall
+automatically become due and payable, without presentment, demand, protest or
+any other notice of any kind, all of which are hereby expressly waived by each
+Borrower, anything contained herein to the contrary notwithstanding.
+
+ 
+
+Article 9
+
+
+
+The Agents
+
+ 
+
+Section 9.01.      Appointment and Authorization of Administrative Agent. Each
+of the Lenders hereby irrevocably appoints the Administrative Agent as its agent
+and authorizes it to take such actions on its behalf and to exercise such powers
+as are delegated to it by the terms of the Loan Documents, together with such
+actions and powers as are reasonably incidental thereto.
+
+ 
+
+Section 9.02.      Rights and Powers of Administrative Agent as a Lender. The
+bank 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 such bank and its
+Affiliates may accept deposits from, lend money to and generally engage in any
+kind of business with the Company or any Subsidiary or other Affiliate thereof
+as if it were not the Administrative Agent hereunder.
+
+ 
+
+Section 9.03.      Limited Duties and Responsibilities of Administrative Agent.
+The Administrative Agent shall not have any duties or obligations except those
+expressly set forth in the Loan Documents. Without limiting the generality of
+the foregoing, (a) the Administrative Agent shall not be subject to any
+fiduciary or other implied duties, regardless of whether a Default has occurred
+and is continuing, (b) the Administrative Agent shall not have any duty to take
+any discretionary action or exercise any discretionary powers, except
+discretionary rights and powers expressly contemplated hereby that the
+Administrative Agent is required to exercise in writing as directed by the
+Required Lenders (or such other number or percentage of the Lenders as shall be
+necessary under the circumstances as provided in Section 12.02) and (c) except
+as expressly set forth in any Loan Document, the Administrative Agent shall not
+have any duty to disclose, and shall not be liable to any Lender for the failure
+to disclose, any information relating to the Company or any of its Subsidiaries
+that is communicated to or obtained by the bank serving as Administrative Agent
+or any of its Affiliates in any capacity. The Administrative Agent shall not be
+liable for any action taken or not taken by it with the consent or at the
+request of the Required Lenders (or such other number or percentage of the
+Lenders as shall be necessary under the circumstances as provided in Section
+12.02) or 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 written notice thereof is given to the Administrative Agent by the
+Company or a Lender, and the Administrative Agent shall not be responsible for
+or have any duty to ascertain or inquire into (i) any statement, warranty or
+representation made in or in connection with any Loan Document, (ii) the
+contents of any certificate, report or other document delivered under any Loan
+Document or in connection therewith, (iii) the performance or observance of any
+of the covenants, agreements or other terms or conditions set forth in any Loan
+Document, (iv) the validity, enforceability, effectiveness or genuineness of any
+Loan Document or any other agreement, instrument or document or (v) the
+satisfaction of any condition set forth in Article 4 or elsewhere in any Loan
+Document, other than to confirm receipt of items expressly required to be
+delivered to the Administrative Agent.
+
+ 
+
+
+
+62
+
+ 
+
+ 
+
+Section 9.04.      Authority of Administrative Agent to Rely on Certain
+Writings, Statements and Advice. 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
+believed by it to be genuine and to have been signed or sent 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 be made by the proper Person, and
+shall not incur any liability for relying thereon. The Administrative Agent may
+consult with legal counsel (who may be counsel for the Company), independent
+accountants and other experts selected by it in good faith, 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.
+
+ 
+
+Section 9.05.      Sub-Agents and Related Parties. The Administrative Agent may
+perform any and all its duties and exercise its rights and powers 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 its duties
+and exercise its rights and powers through their respective Related Parties. The
+exculpatory provisions of the preceding paragraphs shall apply to any such
+sub-agent and to the Related Parties of the Administrative Agent and any such
+sub-agent, and shall apply to their respective activities in connection with the
+syndication of the credit facilities provided for herein as well as activities
+as Administrative Agent.
+
+ 
+
+Section 9.06.      Resignation; Successor Administrative Agent. Subject to the
+appointment and acceptance of a successor Administrative Agent as provided in
+this paragraph, the Administrative Agent may resign at any time by notifying the
+Lenders and the Company. Upon any such resignation, the Required Lenders shall
+have the right, in consultation with the Company, to appoint a successor. If no
+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, appoint a successor Administrative Agent which shall be a
+bank with an office in New York, New York, or an Affiliate of any such bank.
+Upon the acceptance of its appointment as a successor Administrative Agent
+hereunder, such successor shall succeed to and become vested with all the
+rights, powers, privileges and duties of the retiring Administrative Agent, and
+the retiring Administrative Agent shall be discharged from its duties and
+obligations hereunder. The fees payable by the Company to a successor
+Administrative Agent shall be the same as those payable to its predecessor
+unless otherwise agreed between the Company and such successor. After the
+Administrative Agent’s resignation hereunder, the provisions of this Article and
+Section 12.03 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 it was
+acting as Administrative Agent.
+
+ 
+
+
+
+63
+
+ 
+
+ 
+
+Section 9.07.      Credit Decisions by Lenders. Each Lender acknowledges that it
+has, independently and without reliance upon the Administrative Agent or any
+other Lender 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 also acknowledges that it will, independently and without
+reliance upon the Administrative Agent or any other Lender and based on such
+documents and information as it shall from time to time deem appropriate,
+continue to make its own decisions in taking or not taking action under or based
+upon the Loan Documents, any related agreement or any document furnished
+hereunder or thereunder.
+
+ 
+
+Section 9.08.      Administrative Agent’s Fee. The Company agrees to pay to the
+Administrative Agent, for its own account, fees payable in the amounts and at
+the times separately agreed upon between the Company and the Administrative
+Agent.
+
+ 
+
+Section 9.09.      Other Agents. Nothing in the Loan Documents shall impose on
+any Agent or Arranger other than the Administrative Agent, in its capacity as an
+Agent or Arranger, any obligation or liability whatsoever.
+
+ 
+
+Section 9.10.      Certain ERISA Matters. (a) Each Lender (x) represents and
+warrants, as of the date such Person became a Lender party hereto, to, and (y)
+covenants, from the date such Person became a Lender party hereto to the date
+such Person ceases being a Lender party hereto, for the benefit of, the
+Administrative Agent, and each Arranger and their respective Affiliates, and
+not, for the avoidance of doubt, to or for the benefit of the Company or any
+other Credit Party, that at least one of the following is and will be true:
+
+ 
+
+(i)            such Lender is not using “plan assets” (within the meaning of the
+Plan Asset Regulations) of one or more Benefit Plans in connection with the
+Loans or the Commitments,
+
+ 
+
+(ii)            the transaction exemption set forth in one or more PTEs, such as
+PTE 84-14 (a class exemption for certain transactions determined by independent
+qualified professional asset managers), PTE 95-60 (a class exemption for certain
+transactions involving insurance company general accounts), PTE 90-1 (a class
+exemption for certain transactions involving insurance company pooled separate
+accounts), PTE 91-38 (a class exemption for certain transactions involving bank
+collective investment funds) or PTE 96-23 (a class exemption for certain
+transactions determined by in-house asset managers), is applicable with respect
+to such Lender’s entrance into, participation in, administration of and
+performance of the Loans, the Commitments and this Agreement, and the conditions
+for exemptive relief thereunder are and will continue to be satisfied in
+connection therewith,
+
+ 
+
+(iii)            (A) such Lender is an investment fund managed by a “Qualified
+Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)
+such Qualified Professional Asset Manager made the investment decision on behalf
+of such Lender to enter into, participate in, administer and perform the Loans,
+the Commitments and this Agreement, (C) the entrance into, participation in,
+administration of and performance of the Loans, the Commitments and this
+Agreement satisfies the requirements of sub-sections (b) through (g) of Part I
+of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of
+subsection (a) of Part I of PTE 84-14 are satisfied with respect to such
+Lender’s entrance into, participation in, administration of and performance of
+the Loans, the Commitments and this Agreement, or
+
+ 
+
+64
+
+ 
+
+ 
+
+  
+
+(iv)            such other representation, warranty and covenant as may be
+agreed in writing between the Administrative Agent, in its sole discretion, and
+such Lender.
+
+ 
+
+(b)         In addition, unless sub-clause (i) in the immediately preceding
+clause (a) is true with respect to a Lender or such Lender has provided another
+representation, warranty and covenant as provided in sub-clause (iv) in the
+immediately preceding clause (a), such Lender further (x) represents and
+warrants, as of the date such Person became a Lender party hereto, to, and (y)
+covenants, from the date such Person became a Lender party hereto to the date
+such Person ceases being a Lender party hereto, for the benefit of, the
+Administrative Agent, and the Arrangers, the Syndication Agents, the
+Documentation Agents or any of their respective Affiliates, and not, for the
+avoidance of doubt, to or for the benefit of the Company or any other Credit
+Party, that none of the Administrative Agent, or the Arrangers, the Syndication
+Agents, the Documentation Agents or any of their respective Affiliates is a
+fiduciary with respect to the assets of such Lender involved in the Loans, the
+Commitments and this Agreement (including in connection with the reservation or
+exercise of any rights by the Administrative Agent under this Agreement, any
+Loan Document or any documents related hereto or thereto).
+
+ 
+
+(c)         Each of the Administrative Agent and each Arranger hereby informs
+the Lenders that each such Person is not undertaking to provide impartial
+investment advice, or to give advice in a fiduciary capacity, in connection with
+the transactions contemplated hereby, and that such Person has a financial
+interest in the transactions contemplated hereby in that such Person or an
+Affiliate thereof (i) may receive interest or other payments with respect to the
+Loans, the Commitments and this Agreement, (ii) may recognize a gain if it
+extended the Loans or the Commitments for an amount less than the amount being
+paid for an interest in the Loans or the Commitments by such Lender or (iii) may
+receive fees or other payments in connection with the transactions contemplated
+hereby, the Loan Documents or otherwise, including structuring fees, commitment
+fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking
+fees, agency fees, administrative agent or collateral agent fees, utilization
+fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or
+alternate transaction fees, amendment fees, processing fees, term out premiums,
+banker’s acceptance fees, breakage or other early termination fees or fees
+similar to the foregoing.
+
+ 
+
+Section 9.11.      Posting of Communications.
+
+ 
+
+(a)         The Company agrees that the Administrative Agent may, but shall not
+be obligated to, make any Communications available to the Lenders by posting the
+Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other
+similar electronic platform chosen by the Administrative Agent reasonably and in
+good faith to be its electronic transmission system and used by it for such
+purpose with respect to its credit facilities generally (the “Approved
+Electronic Platform”).
+
+ 
+
+
+
+65
+
+ 
+
+ 
+
+(b)         Although the Approved Electronic Platform and its primary web portal
+are secured with generally-applicable security procedures and policies
+implemented or modified by the Administrative Agent from time to time
+(including, as of the Effective Date, a user ID/password authorization system)
+and the Approved Electronic Platform is secured through a per-deal authorization
+method whereby each user may access the Approved Electronic Platform only on a
+deal-by-deal basis, each of the Lenders and the Company acknowledges and agrees
+that the distribution of material through an electronic medium is not
+necessarily secure, that the Administrative Agent is not responsible for
+approving or vetting the representatives or contacts of any Lender that are
+added to the Approved Electronic Platform, and that there may be confidentiality
+and other risks associated with such distribution. Each of the Lenders and the
+Company hereby approves distribution of the Communications through the Approved
+Electronic Platform and understands and assumes the risks of such distribution,
+other than risks arising from the gross negligence, bad faith or willful
+misconduct of any of the foregoing parties (as determined by a court of
+competent jurisdiction by a final and nonappealable judgment).
+
+ 
+
+(c)         THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED
+“AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT
+WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF
+THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR
+OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO
+WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
+MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
+PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE
+APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED
+ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER,
+ANY DOCUMENTATION AGENT, ANY SYNDICATION AGENT OR ANY OF THEIR RESPECTIVE
+RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY
+CREDIT PARTY, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND,
+INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
+LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY
+CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS
+THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM, OTHER THAN DIRECT
+ACTUAL DAMAGES ARISING FROM THE gross negligence, bad faith or willful
+misconduct of any applicable party (as determined by a court of competent
+jurisdiction by a final and nonappealable judgment).
+
+ 
+
+(d)         Each Lender agrees that notice to it (as provided in the next
+sentence) specifying that Communications have been posted to the Approved
+Electronic Platform shall constitute effective delivery of the Communications to
+such Lender for purposes of the Loan Documents. Each Lender agrees (i) to notify
+the Administrative Agent in writing (which could be in the form of electronic
+communication) from time to time of such Lender’s email address to which the
+foregoing notice may be sent by electronic transmission and (ii) that the
+foregoing notice may be sent to such email address.
+
+ 
+
+
+
+66
+
+ 
+
+ 
+
+(e)         Each of the Lenders and the Company agrees that the Administrative
+Agent may, but (except as may be required by applicable law) shall not be
+obligated to, store the Communications on the Approved Electronic Platform in
+accordance with the Administrative Agent’s generally applicable document
+retention procedures and policies.
+
+ 
+
+(f)          Nothing herein shall prejudice the right of the Administrative
+Agent, any Lender to give any notice or other communication pursuant to any Loan
+Document in any other manner specified in such Loan Document.
+
+ 
+
+Article 10
+Representations and Warranties of Eligible Subsidiaries
+
+ 
+
+Each Eligible Subsidiary shall be deemed by the execution and delivery of its
+Election to Participate to have represented and warranted as of the date thereof
+that:
+
+ 
+
+Section 10.01.  Organization; Powers. Such Eligible Subsidiary (a) is duly
+organized, validly existing and in good standing under the laws of the
+jurisdiction of its organization, (b) has the power and authority to execute,
+deliver and perform its obligations hereunder and under each other agreement or
+instrument contemplated thereby to which it is or will be a party and to borrow
+hereunder and (c) is a Wholly-Owned Consolidated Subsidiary.
+
+ 
+
+Section 10.02.  Authorization. The Transactions and the execution and delivery
+by such Eligible Subsidiary of its Election to Participate and the performance
+by such Eligible Subsidiary of this Agreement, (a) have been duly authorized by
+all requisite corporate, partnership, limited liability company or analogous
+and, if required, stockholder, partner, member or analogous action and (b) will
+not (i) materially violate any provision of law, statute, rule or regulation, or
+of the certificate or articles of incorporation or other constitutive documents
+or by-laws of such Eligible Subsidiary, (ii)materially violate any order of any
+Governmental Authority or (iii) materially violate any provision of any material
+indenture, agreement or other instrument to which such Eligible Subsidiary is a
+party or by which any of them or any of their property is or may be bound, (iv)
+be in material conflict with, result in a breach of or constitute (alone or with
+notice or lapse of time or both) a material default under any such indenture,
+agreement or other instrument or (v) result in the creation or imposition of any
+Lien upon any property or assets of such Eligible Subsidiary (other than under
+any Loan Document).
+
+ 
+
+Section 10.03.  Enforceability. Its Election to Participate has been duly
+executed and delivered by such Eligible Subsidiary, and this Agreement
+constitutes a legal, valid and binding obligation of such Eligible Subsidiary
+enforceable against such Eligible Subsidiary in accordance with its terms,
+subject to applicable bankruptcy, insolvency, reorganization, moratorium or
+other similar laws affecting creditors’ rights generally and subject to general
+principles of equity, regardless of whether considered in a proceeding in equity
+or at law.
+
+ 
+
+Section 10.04.  Taxes. Except as disclosed in such Election to Participate,
+there is no income, stamp or other tax of any country, or any taxing authority
+thereof or therein, imposed by or in the nature of withholding or otherwise,
+which is imposed on any payment to be made by such Eligible Subsidiary pursuant
+hereto, or is imposed on or by virtue of the execution, delivery or enforcement
+of its Election to Participate.
+
+ 
+
+
+
+67
+
+ 
+
+ 
+
+Article 11
+Guaranty
+
+ 
+
+Section 11.01.  The Guaranty. The Company hereby unconditionally and absolutely
+guarantees the full and punctual payment (whether at stated maturity, upon
+acceleration or otherwise) of the principal of and interest on each Loan made to
+each other Borrower pursuant to this Agreement, and the full and punctual
+payment of all other amounts payable by each other Borrower under this
+Agreement. Upon failure by any other Borrower to pay punctually any such amount,
+the Company agrees that it shall forthwith on demand pay the amount not so paid
+at the place and in the manner specified in this Agreement.
+
+ 
+
+Section 11.02.  Guaranty Unconditional. The obligations of the Company hereunder
+shall be unconditional, irrevocable and absolute and, without limiting the
+generality of the foregoing, shall not be released, discharged or otherwise
+affected by:
+
+ 
+
+(a)         any extension, renewal, settlement, compromise, waiver or release in
+respect of any obligation of any Borrower or any other Person under any Loan
+Document or by operation of law or otherwise (except to the extent the foregoing
+expressly releases the Company’s obligations under this Article 11);
+
+ 
+
+(b)         any modification or amendment of or supplement to any Loan Document
+(other than any modification, amendment or supplement of this Article 11
+effected in accordance with Section 12.02);
+
+ 
+
+(c)         any release, impairment, non-perfection or invalidity of any direct
+or indirect security for any obligation of any Borrower or any other Person
+under any Loan Document;
+
+ 
+
+(d)         any change in the corporate existence, structure or ownership of any
+Borrower or any other Person or any insolvency, bankruptcy, reorganization or
+other similar proceeding affecting any Borrower or any other Person or its
+assets or any resulting release or discharge of any obligation of any Borrower
+or any other Person contained in any Loan Document;
+
+ 
+
+(e)         the existence of any claim, set-off or other rights which the
+Company may have at any time against any other Borrower, the Administrative
+Agent, any Lender or any other Person, whether in connection herewith or with
+any unrelated transactions; provided that nothing herein shall prevent the
+assertion of any such claim by separate suit or compulsory counterclaim;
+
+ 
+
+(f)          any invalidity or unenforceability relating to or against any
+Borrower or any other Person for any reason of any Loan Document, or any
+provision of applicable law or regulation purporting to prohibit the payment by
+any Borrower of the principal of or interest on any Loan or any other amount
+payable by it under any Loan Document; or
+
+ 
+
+(g)         any other act or omission to act or delay of any kind by any
+Borrower, the Administrative Agent, any Lender or any other Person or any other
+circumstance whatsoever which might, but for the provisions of this paragraph,
+constitute a legal or equitable discharge of or defense to the Company’s
+obligations hereunder (in each case other than payment in full of the
+obligations guaranteed hereunder).
+
+ 
+
+
+
+68
+
+ 
+
+ 
+
+Section 11.03.  Discharge Only Upon Payment in Full; Reinstatement in Certain
+Circumstances. Each of the Company’s obligations hereunder shall remain in full
+force and effect until the Commitments shall have terminated and the principal
+of and interest on the Loans and all other amounts payable hereunder by the
+Company and each other Borrower under this Agreement shall have been paid in
+full in cash (or backed by a standby letter of credit or cash collateralized, in
+each case in amounts and on terms satisfactory to the Administrative Agent). If
+at any time any payment of the principal of or interest on any Loan or any other
+amount payable by any other Borrower under this Agreement is rescinded or must
+be otherwise restored or returned upon the insolvency, bankruptcy or
+reorganization of such Borrower or otherwise, the Company’s obligations
+hereunder with respect to such payment shall be reinstated at such time as
+though such payment had been due but not made at such time.
+
+ 
+
+Section 11.04.  Waiver by the Company. The Company irrevocably waives acceptance
+of its guaranty under this Article 11, presentment, demand (except as provided
+in Section 11.01), protest and any notice not provided for herein, as well as,
+solely for purposes of Article 11 any requirement that at any time any action be
+taken by any Person against any Borrower or any other Person. The Company’s
+guaranty hereunder is a guaranty of payment and not merely of collection.
+
+ 
+
+Section 11.05.  Subrogation. Upon making any payment with respect to any
+Borrower hereunder, the Company shall be subrogated to the rights of the payee
+against such Borrower with respect to such payment; provided that the Company
+shall not enforce any payment by way of subrogation unless all amounts of
+principal of and interest on the Loans to such Borrower and all other amounts
+payable by such Borrower under this Agreement have been paid in full in cash.
+
+ 
+
+Section 11.06.  Stay of Acceleration. If acceleration of the time for payment of
+any amount payable by any Borrower under this Agreement is stayed upon
+insolvency, bankruptcy or reorganization of such Borrower, all such amounts
+otherwise subject to acceleration under the terms of this Agreement shall
+nonetheless be payable by the Company hereunder forthwith on demand by the
+Administrative Agent made at the request of the Required Lenders.
+
+ 
+
+Section 11.07.  Continuing Guaranty. The Company’s guaranty hereunder is a
+continuing guaranty, shall be binding on the Company and its successors and
+assigns, and shall be enforceable by the Lenders. If all or part of any Lender’s
+interest in any obligation guaranteed by the Company is assigned or otherwise
+transferred, the transferor’s rights under the Company’s guaranty, to the extent
+applicable to the obligation so transferred, shall automatically be transferred
+with such obligation.
+
+ 
+
+Article 12
+Miscellaneous
+
+ 
+
+Section 12.01.  Notices. (a) Except in the case of notices and other
+communications expressly permitted to be given by telephone (and subject to
+paragraph (b) below), all notices and other communications provided for herein
+shall be in writing and shall be delivered by hand or overnight courier service,
+mailed by certified or registered mail or sent by facsimile, as follows:
+
+ 
+
+
+
+69
+
+ 
+
+ 
+
+(i)            if to the Company, to it at Cummins Inc., 500 Jackson Street,
+Box 3005, Columbus, Indiana 47202-3005, Attention of Vice President/Treasurer
+(Email: donald.jackson@cummins.com);
+
+ 
+
+(ii)            if to any Subsidiary Borrower, to it care of the Company;
+
+ 
+
+(iii)            if to the Administrative Agent, (A) to JPMorgan Chase Bank,
+N.A., 500 Stanton Christiana Road, NCC5/1st Floor, Newark, DE 19713, Attention
+of Loan & Agency Services Group – Joe Aftanis (Phone: 303-552-0847; Facsimile:
+302-634-3301; Email: joe.aftanis@jpmorgan.com) and (B) in the case of a
+notification of the DQ List, to JPMDQ_Contact@jpmorgan.com; and
+
+ 
+
+(iv)            if to any other Lender, to it at its address (or facsimile
+number) set forth in its Administrative Questionnaire.
+
+ 
+
+(b)         Notices and other communications to the Lenders hereunder may be
+delivered or furnished by using Approved Electronic Platforms pursuant to
+procedures approved by the Administrative Agent; provided that the foregoing
+shall not apply to notices pursuant to Article 2 unless otherwise agreed by the
+Administrative Agent and the applicable Lender. The Administrative Agent or the
+Company 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.
+
+ 
+
+(c)         Any party hereto may change its address or facsimile number for
+notices and other communications hereunder by notice to the other parties
+hereto. All notices and other communications given to any party hereto in
+accordance with the provisions of this Agreement shall be deemed to have been
+given on the date of receipt if received during the recipient’s normal business
+hours.
+
+ 
+
+Section 12.02.  Waivers; Amendments. (a) No failure or delay by the
+Administrative Agent or any Lender in exercising any right or power under any
+Loan Document shall operate as a waiver thereof, nor shall any single or partial
+exercise of any such right or power, or any abandonment or discontinuance of
+steps to enforce such a right or power, preclude any other or further exercise
+thereof or the exercise of any other right or power. The rights and remedies of
+the Administrative Agent and the Lenders under the Loan Documents are cumulative
+and are not exclusive of any rights or remedies that they would otherwise have.
+No waiver of any provision of any Loan Document or consent to any departure by
+any Borrower therefrom shall in any event be effective unless the same shall be
+permitted by paragraph (b) of this Section, and then such waiver or consent
+shall be effective only in the specific instance and for the purpose for which
+given. Without limiting the generality of the foregoing, the making of a Loan
+shall not be construed as a waiver of any Default, regardless of whether the
+Administrative Agent or any Lender may have had notice or knowledge of such
+Default at the time.
+
+ 
+
+(b)         Except as provided in Section 2.13(b), no Loan Document nor any
+provision thereof may be waived, amended or modified except pursuant to an
+agreement or agreements in writing entered into by the Company and the Required
+Lenders; provided that no such agreement shall:
+
+ 
+
+
+
+70
+
+ 
+
+ 
+
+(i)            (A) increase the Commitment of any Lender without the written
+consent of such Lender (provided that an amendment, modification, waiver or
+consent with respect to any condition precedent, covenant, mandatory prepayment
+pursuant to Section 2.20(b), Event of Default or Default shall not constitute an
+increase in the Commitment of any Lender), (B) reduce the principal amount of
+any Loan or reduce the rate of interest thereon (other than with respect to the
+incremental 2% included in the determination of the applicable interest rate
+under Section 2.12(d)), or reduce any fees payable hereunder, without the
+written consent of each Lender directly and adversely affected thereby, (C)
+postpone the scheduled date of payment of the principal amount of any Loan, or
+any interest thereon, or any fees payable hereunder, or reduce the amount of,
+waive or excuse any such payment, or postpone the scheduled date of expiration
+of any Commitment, without the written consent of each Lender directly and
+adversely affected thereby (other than any reduction of the amount of, or any
+extension of the payment date for, the mandatory prepayments required under
+Section 2.20(b), in each case which shall only require the approval of the
+Required Lenders), (D) change Section 2.08(d) or Section 2.18(b) or Section
+2.18(c) in a manner that would alter the ratable reduction of Commitments or pro
+rata sharing of payments required thereby, or change any provision requiring
+that funding of amounts by the Lenders be on a ratable basis, without the
+written consent of each Lender directly and adversely affected thereby, (E)
+change any of the provisions of this Section or the definition of “Required
+Lenders” or any other provision of any Loan Document specifying the number or
+percentage of Lenders required to waive, amend or modify any rights thereunder
+or make any determination or grant any consent thereunder, without the written
+consent of each Lender directly affected thereby, (F) release the Company from
+its guaranty under Article 11 hereof, or limit its liability in respect of such
+guaranty, without the written consent of each Lender, (G) change any of the
+provisions of Section 2.23 without the consent of the Administrative Agent or
+(H) amend the definition of “Applicable Percentage” without the written consent
+of each Lender; provided that no consent of any Defaulting Lender shall be
+required pursuant to clause (D), (E) or (H) above as to any modification that
+does not adversely affect such Defaulting Lender in a non-ratable manner;
+
+ 
+
+(ii)            amend, modify or otherwise affect the rights or duties of the
+Administrative Agent under any Loan Document without the prior written consent
+of the Administrative Agent; or
+
+ 
+
+(iii)            (A) subject any Subsidiary Borrower to any additional
+obligation without the written consent of such Borrower, (B) increase the
+principal of or rate of interest on any outstanding Loan of any Subsidiary
+Borrower without the written consent of such Borrower, (C) accelerate the stated
+maturity of any outstanding Loan of any Subsidiary Borrower without the written
+consent of such Borrower or (D) change this proviso (iii) without the prior
+written consent of each Subsidiary Borrower.
+
+ 
+
+
+
+71
+
+ 
+
+ 
+
+(c)         Notwithstanding any provision herein to the contrary, as to any
+amendment, amendment and restatement or other modifications otherwise approved
+in accordance with this Section, it shall not be necessary to obtain the consent
+or approval of any Lender that, upon giving effect to such amendment, amendment
+and restatement or other modification, would have no Commitment or outstanding
+Loans so long as such Lender receives payment in full of the principal of and
+interest accrued on each Loan made by, and all other amounts owing to, such
+Lender or accrued for the account of such Lender under this Agreement and the
+other Loan Documents at the time such amendment, amendment and restatement or
+other modification becomes effective.
+
+ 
+
+(d)         Notwithstanding any provisions herein to the contrary, if the
+Administrative Agent and the Company acting together identify any ambiguity,
+omission, mistake, typographical error or other defect in any provision of this
+Agreement or any other Loan Document, then the Administrative Agent and the
+Company shall be permitted to amend, modify or supplement such provision to cure
+such ambiguity, omission, mistake, typographical error or other defect, and such
+amendment shall become effective without any further action or consent of any
+other party to this Agreement, so long as, in each case, the Lenders shall have
+received at least ten Domestic Business Days’ prior written notice thereof and
+the Administrative Agent shall not have received, within ten Domestic Business
+Days of the date of such notice to the Lenders, a written notice from the
+Required Lenders stating that the Required Lenders object to such amendment.
+
+ 
+
+Section 12.03.  Expenses; Indemnity; Damage Waiver. (a) The Company shall pay
+(i) all reasonable, documented and invoiced out-of-pocket expenses incurred by
+the Administrative Agent, and its Affiliates, including the reasonable,
+documented and invoiced fees, charges and disbursements of one counsel for the
+Administrative Agent, in connection with the syndication of the credit
+facilities provided for herein, the preparation and administration of the Loan
+Documents or any amendments, modifications or waivers of the provisions thereof
+(whether or not the transactions contemplated hereby or thereby shall be
+consummated) and (ii) all reasonable, documented and invoiced out-of-pocket
+expenses incurred by the Administrative Agent or any Lender, including the fees,
+charges and disbursements of any counsel for the Administrative Agent or any
+Lender, in connection with the enforcement or protection of its rights in
+connection with the Loan Documents, including its rights under this Section, or
+in connection with the Loans made, including all such out-of-pocket expenses
+incurred during any workout, restructuring or negotiations in respect of such
+Loans.
+
+ 
+
+(b)         The Company shall indemnify the Administrative Agent, each Arranger,
+each Lender and each Related Party of any of the foregoing Persons (each such
+Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
+from, any and all losses, claims, damages, liabilities and related reasonable
+and documented costs and expenses, including the reasonable fees, charges and
+disbursements of any counsel for any Indemnitee, incurred by or asserted against
+any Indemnitee arising out of, in connection with, or as a result of any actual
+or prospective claim, litigation, investigation, arbitration or proceeding,
+whether based on contract, tort or any other theory and regardless of whether
+any Indemnitee is a party thereto, relating to (i) the execution or delivery of
+the Loan Documents or any agreement or instrument contemplated thereby, the
+performance by the parties thereto of their respective obligations thereunder or
+the consummation of the Transactions or any other transactions contemplated
+thereby, (ii) any Loan or the use of the proceeds therefrom or (iii) any actual
+or alleged presence or release of Hazardous Materials on or from any property
+owned or operated by the Company or any of its Subsidiaries, or any
+Environmental Liability related in any way to the Company or any of its
+Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be
+available to the extent that such losses, claims, damages, liabilities or
+related expenses are determined by a court of competent jurisdiction by final
+and nonappealable judgment to have resulted from (i) the gross negligence or
+willful misconduct of such Indemnitee or any of its Affiliates or
+representatives, (ii) from the material breach in bad faith by such Indemnitee
+of its express obligations under the Loan Documents or (iii) a dispute solely
+among Indemnitees (other than a dispute involving a claim against an Indemnitee
+in its capacity as an arranger or agent in respect of the Agreement, and in any
+such event described in this clause (iii) solely to the extent that the
+underlying dispute does not arise as a result of any action, inaction,
+representation or misrepresentation of, or information provided, or that was
+failed to be provided, by or on behalf of, the Company or any of its
+Subsidiaries).
+
+ 
+
+
+
+72
+
+ 
+
+ 
+
+(c)         To the extent that the Company fails to pay any amount required to
+be paid by it to the Administrative Agent under paragraph (a) or (b) of this
+Section, each Lender severally agrees to pay to the Administrative Agent 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 in its capacity as such.
+
+ 
+
+(d)         To the extent permitted by applicable law, each Credit Party shall
+not assert, and hereby waives, any claim against any Indemnitee, on any theory
+of liability, for special, indirect, consequential or punitive damages (as
+opposed to direct or actual damages) arising out of, in connection with, or as a
+result of, the Loan Documents or any agreement or instrument contemplated
+thereby, the Transactions, any Loan or the use of the proceeds thereof.
+
+ 
+
+(e)         All amounts due under this Section shall be payable promptly after
+written demand therefor.
+
+ 
+
+Section 12.04.  Successors and Assigns. (a) The provisions of this Agreement
+shall be binding upon and inure to the benefit of the parties hereto and their
+respective successors and assigns permitted hereby, except that (i) no Credit
+Party may assign or otherwise transfer any of its rights or obligations
+hereunder without the prior written consent of each Lender (and any attempted
+assignment or transfer by any Credit Party without such consent shall be null
+and void) and (ii) no Lender may assign or otherwise transfer its rights or
+obligations hereunder except in accordance with this Section. Nothing in this
+Agreement, expressed or implied, shall be construed to confer upon any Person
+(other than the parties hereto, their respective successors and assigns
+permitted hereby, Participants (to the extent provided in paragraph (c) of this
+Section) and, to the extent expressly contemplated hereby, the Related Parties
+of each of the Administrative Agent and the Lenders) any legal or equitable
+right, remedy or claim under or by reason of this Agreement.
+
+ 
+
+(b)         (i) Subject to the conditions set forth in paragraph (b)(ii) below,
+any Lender may assign to one or more Persons (other than an Ineligible
+Institution) all or a portion of its rights and obligations under this Agreement
+(including all or a portion of its Commitment and the Loans at the time owing to
+it) with the prior written consent (such consent not to be unreasonably
+withheld, conditioned or delayed) of:
+
+ 
+
+
+
+73
+
+ 
+
+ 
+
+(A)            the Company; provided that (x) no consent of the Company shall be
+required for (1) an assignment to a Lender, an Affiliate of a Lender, an
+Approved Fund (it being understood that the Company shall nevertheless receive
+prompt notice, either prior to or promptly after such assignment, of any such
+assignment to a Lender, an Affiliate of a Lender or an Approved Fund) (provided
+further, notwithstanding the preceding clause (1), so long as no Event of
+Default under paragraph (b), (c), (g) or (h) of Article 8 has occurred and is
+continuing, the consent of the Company shall be required if, after giving effect
+to such assignment, the assignee, collectively with its affiliated Lenders and
+affiliated Approved Funds, would, as a result of such assignment, hold more than
+fifteen percent (15%) of the aggregate amounts of Loans and unused Commitments)
+or, (2) if an Event of Default under paragraph (b), (c), (g) or (h) of Article 8
+has occurred and is continuing, any other assignee and (y) the Company shall be
+deemed to have consented to any such assignment unless it shall object thereto
+by written notice to the Administrative Agent within ten Euro-Currency Business
+Days after receipt of written notice thereof; and
+
+ 
+
+(B)            the Administrative Agent; provided that no consent of the
+Administrative Agent shall be required for an assignment to an assignee that is
+a Lender or an Affiliate of a Lender immediately prior to giving effect to such
+assignment.
+
+ 
+
+(ii)            Assignments shall be subject to the following additional
+conditions:
+
+ 
+
+(A)            except in the case of an assignment to a Lender or an Affiliate
+of a Lender or an assignment of the entire remaining amount of the assigning
+Lender’s Commitment, the amount of the Commitment of the assigning Lender
+subject to each such assignment (determined as of the date the Assignment and
+Assumption with respect to such assignment is delivered to the Administrative
+Agent) shall not be less than $5,000,000 unless each of the Company and the
+Administrative Agent otherwise consent; provided that no such consent of the
+Company shall be required if an Event of Default under paragraph (b), (c), (g)
+or (h) of Article 8 has occurred and is continuing;
+
+ 
+
+(B)            each partial assignment shall be made as an assignment of a
+proportionate part of all the assigning Lender’s rights and obligations under
+this Agreement;
+
+ 
+
+(C)            the parties to each assignment shall execute and deliver to the
+Administrative Agent (x) an Assignment and Assumption or (y) to the extent
+applicable, an agreement incorporating an Assignment and Assumption by reference
+pursuant to an Approved Electronic Platform as to which the Administrative Agent
+and the parties to the Assignment and Assumption are participants, together with
+a processing and recordation fee of $3,500;
+
+ 
+
+(D)            the assignee, if it shall not be a Lender, shall deliver to the
+Administrative Agent an Administrative Questionnaire;
+
+  
+
+74
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+   
+
+(E)            in the case of an assignment to a CLO (as defined below), the
+assigning Lender shall retain the sole right to approve any amendment,
+modification or waiver of any provision of this Agreement, provided that the
+Assignment and Assumption between such Lender and such CLO may provide that such
+Lender will not, without the consent of such CLO, agree to any amendment,
+modification or waiver described in paragraph (i) of the first proviso to
+Section 12.02(b) that affects such CLO; and
+
+ 
+
+(F)            no assignment, whether in whole or in part (including
+participations), may be made to (i) the Company or any of its Affiliates or
+subsidiaries, (ii) any Defaulting Lender or any Person who, upon becoming a
+Lender, would constitute a Defaulting Lender, (iii) a natural Person (or holding
+company, investment vehicle or trust for, or owned and operated for the primary
+benefit of, a natural Person) or (iv) Disqualified Institution without the prior
+written consent of the Company.
+
+ 
+
+For the purposes of this Section 12.04, the terms “Approved Fund”, “CLO” and
+“Disqualified Institution” have the following meanings:
+
+ 
+
+“Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a
+fund which invests in bank loans and similar extensions of credit, any other
+fund that invests in bank loans and similar extensions of credit and is managed
+by the same investment advisor as such Lender or by an Affiliate of such
+investment advisor.
+
+ 
+
+“CLO” means any entity (whether a corporation, partnership, trust or otherwise)
+that is engaged in making, purchasing, holding or otherwise investing in bank
+loans and similar extensions of credit in the ordinary course of its business
+and is administered or managed by a Lender or an Affiliate of such Lender.
+
+ 
+
+“Disqualified Institution” means (i) those Persons identified by the Company to
+the Administrative Agent and the Lenders in writing prior to the Effective Date,
+(ii) those Persons that are reasonably determined by the Company to be
+competitors of the Company or any of its Subsidiaries and that have been
+specifically identified by the Company to the Administrative Agent and the
+Lenders in writing prior to the Effective Date and (iii) in the case of each of
+clauses (i) and (ii) (and any supplements thereto as contemplated below), any of
+their respective Affiliates, to the extent any such Affiliate (x) is clearly
+identifiable as an Affiliate of the applicable Person solely by similarity of
+such Affiliate’s name and (y) is not a bona fide debt investment fund that is an
+Affiliate of such Person; provided that, the Company, by notice to the
+Administrative Agent and the Lenders after the Effective Date, shall be
+permitted to supplement from time to time in writing by name the list of Persons
+that are Disqualified Institutions to the extent that the Persons added by such
+supplements are competitors of the Company or any of its Subsidiaries (or
+Affiliates of competitors that are not bona fide debt investment funds). Each
+such supplement shall become effective three (3) Domestic Business Days after
+delivery thereof to the Administrative Agent and the Lenders (including through
+an Approved Electronic Platform) in accordance with Section 12.01, but shall not
+apply retroactively to disqualify any Persons that have previously acquired an
+assignment or participation interest in the Loans (but solely with respect to
+such Loans). It is understood and agreed that (A) the Administrative Agent shall
+have no responsibility, liability or duty, to ascertain, inquire, monitor or
+enforce whether any Lender or potential Lender is a Disqualified Institution,
+(B) the Company’s failure to deliver such list (or supplement thereto) in
+accordance with Section 12.01 shall render such list (or supplement) not
+received and not effective and (C) “Disqualified Institution” shall exclude any
+Person that the Company has designated as no longer being a “Disqualified
+Institution” by written notice delivered to the Administrative Agent (which
+notice may be distributed to the Lenders) from time to time in accordance with
+Section 12.01.
+
+  
+
+75
+
+ 
+
+
+
+ 
+
+(iii)            Subject to acceptance and recording thereof pursuant to
+paragraph (b)(iv) of this Section, from and after the effective date specified
+in each Assignment and Assumption the assignee thereunder shall be a party
+hereto and, to the extent of the interest assigned by such Assignment and
+Assumption, have the rights and obligations of a Lender under this Agreement,
+and the assigning Lender thereunder shall, to the extent of the interest
+assigned by such Assignment and Assumption, be released from its obligations
+under this Agreement (and, in the case of an Assignment and Assumption covering
+all of the assigning Lender’s rights and obligations under this Agreement, such
+Lender shall cease to be a party hereto but shall continue to be entitled to the
+benefits of Sections 2.14, 2.15, 2.16, 2.17 and 12.03). Any assignment or
+transfer by a Lender of rights or obligations under this Agreement that does not
+comply with this Section 12.04 shall be treated for purposes of this Agreement
+as a sale by such Lender of a participation in such rights and obligations in
+accordance with paragraph (c) of this Section.
+
+ 
+
+(iv)            The Administrative Agent, acting for this purpose as a
+non-fiduciary agent of the Borrowers, shall maintain at one of its offices a
+copy of each Assignment and Assumption delivered to it and a register for the
+recordation of the names and addresses of the Lenders, and the Commitment of,
+and principal amount (and stated interest) of the Loans owing to, each Lender
+pursuant to the terms hereof from time to time (the “Register”). The entries in
+the Register shall be conclusive absent manifest error, and each Borrower, the
+Administrative Agent and the Lenders may treat each Person whose name is
+recorded in the Register pursuant to the terms hereof as a Lender hereunder for
+all purposes of this Agreement, notwithstanding notice to the contrary. The
+Register shall be available for inspection by the Company and any Lender, at any
+reasonable time and from time to time upon reasonable prior notice.
+
+ 
+
+(v)            Upon its receipt of (x) a duly completed Assignment and
+Assumption executed by an assigning Lender and an assignee or (y) to the extent
+applicable, an agreement incorporating an Assignment and Assumption by reference
+pursuant to an Approved Electronic Platform as to which the Administrative Agent
+and the parties to the Assignment and Assumption are participants, the
+assignee’s completed Administrative Questionnaire (unless the assignee shall
+already be a Lender hereunder), the processing and recordation fee referred to
+in paragraph (b) of this Section and any written consent to such assignment
+required by paragraph (b) of this Section, the Administrative Agent shall accept
+such Assignment and Assumption and record the information contained therein in
+the Register. No assignment shall be effective for purposes of this Agreement
+unless it has been recorded in the Register as provided in this paragraph.
+
+ 
+
+
+
+76
+
+ 
+
+ 
+
+(c)         (i) Any Lender may, without the consent of any Borrower or the
+Administrative Agent, sell participations to one or more banks or other entities
+(a “Participant”), other than an Ineligible Institution, in all or a portion of
+such Lender’s rights and/or obligations under this Agreement (including all or a
+portion of its Commitment and/or the Loans owing to it); provided that (A) such
+Lender’s obligations under this Agreement shall remain unchanged, (B) such
+Lender shall remain solely responsible to the other parties hereto for the
+performance of such obligations, (C) each Borrower, the Administrative Agent and
+the other Lenders shall continue to deal solely and directly with such Lender in
+connection with such Lender’s rights and obligations under this Agreement and
+(D) in the case of any sale of a participation to a Disqualified Institution,
+the Borrower shall have provided its prior written consent thereto. Any
+agreement or instrument pursuant to which a Lender sells such a participation
+shall provide that such Lender shall retain the sole right to enforce this
+Agreement and to approve any amendment, modification or waiver of any provision
+of this Agreement; provided that such agreement or instrument may provide that
+such Lender will not, without the consent of the Participant, agree to any
+amendment, modification or waiver described in paragraph (i) of the first
+proviso to Section 12.02(b) that affects such Participant. Subject to paragraph
+(c)(ii) of this Section, each Borrower agrees that each Participant shall be
+entitled to the benefits of Sections 2.14, 2.15, 2.16 and Section 2.17 to the
+same extent as if it were a Lender and had acquired its interest by assignment
+pursuant to paragraph (b) of this Section. To the extent permitted by law, each
+Participant also shall be entitled to the benefits of Section 12.08 as though it
+were a Lender, provided such Participant agrees to be subject to Section 2.18(c)
+as though it were a Lender. Each Lender that sells a participation shall, acting
+solely for this purpose as a non-fiduciary agent of each Borrower, maintain a
+register on which it enters the name and address of each Participant and the
+principal amounts (and stated interest) of each Participant’s interest in the
+Loans or other obligations under this Agreement (the “Participant Register”);
+provided that no Lender shall have any obligation to disclose all or any portion
+of the Participant Register to any Person (including the identity of any
+Participant or any information relating to a Participant’s interest in any
+commitments, loans, letters of credit or its other obligations under this
+Agreement) 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) or Proposed Section 1.163-5(b) of the
+United States Treasury Regulations (or, in each case, any amended or successor
+version) or, if different, under Sections 871(h) or 881(c) of the Code. The
+entries in the Participant Register shall be conclusive absent clearly
+demonstrable 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.
+
+ 
+
+(ii)            A Participant shall not be entitled to receive any greater
+payment under Section 2.14, 2.16 or 2.17 than the applicable Lender would have
+been entitled to receive with respect to the participation sold to such
+Participant, unless the sale of the participation to such Participant is made
+with the Borrower’s prior written consent. A Participant shall not be entitled
+to the benefits of Section 2.16 unless the Participant complies with the
+obligations of (e), (f), (g), (h) and (i) of Section 2.16, as applicable, as if
+it were a Lender (it being understood that the documentation required shall be
+delivered to the participating Lender and, if required by law for reduced
+withholding, copies shall be delivered to the Company and the Administrative
+Agent).
+
+ 
+
+
+
+77
+
+ 
+
+ 
+
+(d)         Any Lender may at any time pledge or assign a security interest in
+all or any portion of its rights under this Agreement to secure obligations of
+such Lender, including any pledge or assignment to secure obligations to a
+Federal Reserve Bank or any central bank having jurisdiction over such Lender,
+and this Section shall not apply to any such pledge or assignment of a security
+interest; provided that no such pledge or assignment of a security interest
+shall release a Lender from any of its obligations hereunder or substitute any
+such pledgee or assignee for such Lender as a party hereto.
+
+ 
+
+(e)         The words “execution,” “signed,” “signature,” and words of like
+import in any Assignment and Assumption Agreement shall be deemed to include
+electronic signatures or the keeping of records in electronic form, each of
+which shall be of the same legal effect, validity or enforceability as a
+manually executed signature or the use of a paper-based recordkeeping system, as
+the case may be, to the extent and as provided for in any applicable law,
+including the Federal Electronic Signatures in Global and National Commerce Act,
+the New York State Electronic Signatures and Records Act, or any other similar
+state laws based on the Uniform Electronic Transactions Act.
+
+ 
+
+(f)          Notwithstanding anything to the contrary in this Section 12.04, or
+elsewhere in this Agreement, the consent of the Company shall be required (such
+consent not to be unreasonably withheld or delayed) for an assignment to an
+assignee that is an Affected Financial Institution unless an Event of Default
+under paragraph (b), (c), (g) or (h) of Article 8 has occurred and is continuing
+at the time of such assignment.
+
+ 
+
+(g)         Disqualified Institutions.
+
+ 
+
+(i)            No assignment or participation shall be made to any Person that
+was a Disqualified Institution as of the date (the “Trade Date”) on which the
+assigning Lender entered into a binding agreement to sell and assign or grant a
+participation in all or a portion of its rights and obligations under this
+Agreement to such Person (unless the Company has consented to such assignment or
+participation in writing in its sole and absolute discretion, in which case such
+Person will not be considered a Disqualified Institution for the purpose of such
+assignment or participation). For the avoidance of doubt, with respect to any
+assignee or Participant that becomes a Disqualified Institution after the
+applicable Trade Date (including as a result of the delivery of a notice
+pursuant to, and/or the expiration of the notice period referred to in, the
+definition of “Disqualified Institution”), (x) such assignee or Participant
+shall not retroactively be disqualified from being a Lender or Participant and
+(y) the execution by the Company of an Assignment and Assumption with respect to
+such assignee will not by itself result in such assignee no longer being
+considered a Disqualified Institution. Any assignment or participation in
+violation of this clause (g)(i) shall not be void, but the other provisions of
+this clause (g) shall apply.
+
+ 
+
+
+
+78
+
+ 
+
+ 
+
+(ii)            If any assignment or participation is made to any Disqualified
+Institution without the Company’s prior written consent in violation of clause
+(i) above, or if any Person becomes a Disqualified Institution after the
+applicable Trade Date, the Company may, at its sole expense and effort, upon
+notice to the applicable Disqualified Institution and the Administrative Agent,
+require such Disqualified Institution to assign, without recourse (in accordance
+with and subject to the restrictions contained in this Section 12.04), all of
+its interest, rights and obligations under this Agreement to one or more Persons
+(other than an Ineligible Institution) at the lesser of (x) the principal amount
+thereof and (y) the amount that such Disqualified Institution paid to acquire
+such interests, rights and obligations in each case plus accrued interest,
+accrued fees and all other amounts (other than principal amounts) payable to it
+hereunder.
+
+ 
+
+(iii)            Notwithstanding anything to the contrary contained in this
+Agreement, Disqualified Institutions to whom an assignment or participation is
+made in violation of clause (i) above (A) will not have the right to (x) receive
+information, reports or other materials provided to Lenders by the Company, the
+Administrative Agent or any other Lender, (y) attend or participate in meetings
+attended by the Lenders (or any of them) and the Administrative Agent, or (z)
+access any electronic site established for the Lenders or confidential
+communications from counsel to or financial advisors of the Administrative Agent
+or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver
+or modification of, or any action under, and for the purpose of any direction to
+the Administrative Agent or any Lender to undertake any action (or refrain from
+taking any action) under this Agreement or any other Loan Document, each
+Disqualified Institution will be deemed to have consented in the same proportion
+as the Lenders that are not Disqualified Institutions consented to such matter,
+and (y) for purposes of voting on any plan of reorganization, each Disqualified
+Lender party hereto hereby agrees (1) not to vote on such plan of
+reorganization, (2) if such Disqualified Lender does vote on such plan of
+reorganization notwithstanding the restriction in the foregoing clause (1), such
+vote will be deemed not to be in good faith and shall be “designated” pursuant
+to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other
+applicable laws), and such vote shall not be counted in determining whether the
+applicable class has accepted or rejected such plan of reorganization in
+accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision
+in any other applicable laws) and (3) not to contest any request by any party
+for a determination by the Bankruptcy Court (or other applicable court of
+competent jurisdiction) effectuating the foregoing clause (2).
+
+ 
+
+(iv)            The Administrative Agent shall have the right, and the Company
+hereby expressly authorizes the Administrative Agent, to (A) post the list of
+Disqualified Institutions provided by the Company and any updates thereto from
+time to time (collectively, the “DQ List”) on an Approved Electronic Platform,
+including that portion of such Approved Electronic Platform that is designated
+for “public side” Lenders and/or (B) provide the DQ List to each Lender or
+potential Lender requesting the same.
+
+ 
+
+(v)            The Administrative Agent shall not be responsible or have any
+liability for, or have any duty to ascertain, inquire into, monitor or enforce,
+compliance with the provisions hereof relating to Disqualified Institutions.
+Without limiting the generality of the foregoing, the Administrative Agent shall
+not ‎(x) be obligated to ascertain, monitor or inquire as to whether any Lender
+or Participant or prospective Lender or Participant is a Disqualified
+‎Institution or (y) have any liability with respect to or arising out of any
+assignment or participation of Loans, or disclosure of confidential information,
+by any other Person to any ‎Disqualified Institution.
+
+ 
+
+
+
+79
+
+ 
+
+ 
+
+Section 12.05.  Survival. All covenants, agreements, representations and
+warranties made by the Company and any other Borrower herein and in the
+certificates or other instruments delivered in connection with or pursuant to
+this Agreement shall be considered to have been relied upon by the other parties
+hereto and shall survive the execution and delivery of this Agreement and the
+making of any Loans, regardless of any investigation made by any such other
+party or on its behalf and notwithstanding that the Administrative Agent or any
+Lender may have had notice or knowledge of any Default or incorrect
+representation or warranty at the time any credit is extended hereunder, and
+shall continue in full force and effect as long as the principal of or any
+accrued interest on any Loan or any fee or any other amount payable under this
+Agreement is outstanding and unpaid (other than those backed by a standby letter
+of credit or cash collateralized, in each case in amounts and on terms
+satisfactory to the Administrative Agent) and so long as the Commitments have
+not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 2.17 and
+12.03 and Article 9 shall survive and remain in full force and effect regardless
+of the consummation of the transactions contemplated hereby, the repayment of
+the Loans, the expiration or termination of the Commitments or the termination
+of this Agreement or any provision hereof.
+
+ 
+
+Section 12.06.  Counterparts; Integration; Effectiveness. This Agreement may be
+executed in counterparts (and by different parties hereto on different
+counterparts), each of which shall constitute an original, but all of which when
+taken together shall constitute a single contract. This Agreement, the other
+Loan Documents and any separate letter agreements with respect to fees payable
+to the Administrative Agent constitute the entire contract among the parties
+relating to the subject matter hereof and supersede any and all previous
+agreements and understandings, oral or written, relating to the subject matter
+hereof. Except as provided in Section 4.01, this Agreement shall become
+effective when it shall have been executed by the Administrative Agent and when
+the Administrative Agent shall have received counterparts hereof which, when
+taken together, bear the signatures of each of the other parties hereto, and
+thereafter shall be binding upon and inure to the benefit of the parties hereto
+and their respective successors and assigns. Delivery of an executed counterpart
+of a signature page of this Agreement by telecopy, e-mailed .pdf or any other
+electronic means that reproduces an image of the actual executed signature page
+shall be effective as delivery of a manually executed counterpart of this
+Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words
+of like import in or relating to any document to be signed in connection with
+this Agreement and the transactions contemplated hereby shall be deemed to
+include Electronic Signatures, deliveries or the keeping of records in
+electronic form, each of which shall be of the same legal effect, validity or
+enforceability as a manually executed signature, physical delivery thereof or
+the use of a paper-based recordkeeping system, as the case may be, to the extent
+and as provided for in any applicable law, including the Federal Electronic
+Signatures in Global and National Commerce Act, the New York State Electronic
+Signatures and Records Act, or any other similar state laws based on the Uniform
+Electronic Transactions Act. Without limiting the generality of the foregoing,
+the Borrowers hereby (i) agree that, for all purposes, including without
+limitation, in connection with any workout, restructuring, enforcement of
+remedies, bankruptcy proceedings or litigation among the Administrative Agent,
+the Lenders and the Borrowers, electronic images of this Agreement or any other
+Loan Documents (in each case, including with respect to any signature pages
+thereto) shall have the same legal effect, validity and enforceability as any
+paper original, and (ii) waive any argument, defense or right to contest the
+validity or enforceability of the Loan Documents based solely on the lack of
+paper original copies of any Loan Documents, including with respect to any
+signature pages thereto.
+
+ 
+
+
+
+80
+
+ 
+
+ 
+
+Section 12.07.  Severability. Any provision of this Agreement held to be
+invalid, illegal or unenforceable in any jurisdiction shall, as to such
+jurisdiction, be ineffective to the extent of such invalidity, illegality or
+unenforceability without affecting the validity, legality and enforceability of
+the remaining provisions hereof; and the invalidity of a particular provision in
+a particular jurisdiction shall not invalidate such provision in any other
+jurisdiction.
+
+ 
+
+Section 12.08.  Right of Set-off. If an Event of Default shall have occurred and
+be continuing and the maturity of the Loans has been accelerated under Article
+8, each Lender and each of its Affiliates is hereby authorized at any time and
+from time to time, to the fullest extent permitted by law, to set-off and apply
+any and all deposits (general or special, time or demand, provisional or final,
+but excluding deposits held in a trustee, fiduciary, agency or similar capacity
+or otherwise for the benefit of a third party) at any time held and other
+obligations at any time owing by such Lender or Affiliate to or for the credit
+or the account of any Credit Party against any of and all the obligations of
+such Credit Party now or hereafter existing under this Agreement held by such
+Lender, irrespective of whether or not such Lender shall have made any demand
+under this Agreement and although such obligations may be unmatured. The rights
+of each Lender under this Section are in addition to other rights and remedies
+(including other rights of set-off) which such Lender may have. Each Lender
+agrees to notify the Company 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.
+
+ 
+
+Section 12.09.  Governing Law; Jurisdiction; Consent to Service of Process. (a)
+This Agreement shall be construed in accordance with and governed by the
+internal law of the State of New York.
+
+ 
+
+(b)         Each of the Lenders and the Administrative Agent hereby irrevocably
+and unconditionally agrees that, notwithstanding the governing law provisions of
+any applicable Loan Document, any claims brought against the Administrative
+Agent by any Lender relating to this Agreement, any other Loan Document or the
+consummation or administration of the transactions contemplated hereby or
+thereby shall be construed in accordance with and governed by the law of the
+State of New York.
+
+ 
+
+(c)         Each Credit Party hereby irrevocably and unconditionally submits,
+for itself and its property, to the nonexclusive jurisdiction of the
+United States District Court for the Southern District of New York sitting in
+the Borough of Manhattan (or if such court lacks subject matter jurisdiction,
+the Supreme Court of the State of New York sitting in the Borough of Manhattan),
+and any appellate court from any thereof, in any action or proceeding arising
+out of or relating to this Agreement or any other Loan Document or the
+transactions relating hereto or thereto, or for recognition or enforcement of
+any judgment arising out of or relating to any Loan Document or the transactions
+relating hereto or thereto, and each of the parties hereto hereby irrevocably
+and unconditionally agrees that all claims in respect of any such action or
+proceeding may be heard and determined in such Federal (to the extent permitted
+by law) or New York State court. Each of the parties hereto agrees that a final
+judgment in any such action or proceeding shall be conclusive and may be
+enforced in other jurisdictions by suit on the judgment or in any other manner
+provided by law. Nothing in any Loan Document shall affect any right that the
+Administrative Agent or any Lender may otherwise have to bring any action or
+proceeding relating to any Loan Document against any Credit Party or its
+properties in the courts of any jurisdiction.
+
+ 
+
+
+
+81
+
+ 
+
+ 
+
+(d)         Each Credit Party hereby irrevocably and unconditionally waives, to
+the fullest extent it may legally and effectively do so, any objection which it
+may now or hereafter have to the laying of venue of any suit, action or
+proceeding arising out of or relating to any Loan Document in any court referred
+to in paragraph (c) of this Section. Each of the parties hereto hereby
+irrevocably waives, to the fullest extent permitted by law, the defense of an
+inconvenient forum to the maintenance of such action or proceeding in any such
+court.
+
+ 
+
+(e)         Each party to this Agreement irrevocably consents to service of
+process in the manner provided for notices in Section 12.01; provided that each
+Subsidiary Borrower irrevocably appoints the Company as agent of process and
+consents to service of process to the Company in the manner provided for notices
+in Section 12.01. Nothing in any Loan Document will affect the right of any
+party to this Agreement to serve process in any other manner permitted by law.
+
+ 
+
+Section 12.10.  WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
+FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
+JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
+TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON
+CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
+REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
+OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
+TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
+PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
+THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
+
+ 
+
+Section 12.11.  Judgment Currency. If, under any applicable law and whether
+pursuant to a judgment being made or registered against any Borrower or for any
+other reason, any payment under or in connection with any Loan Document is made
+or satisfied in a currency (the “Other Currency”) other than that in which the
+relevant payment is due (the “Required Currency”) then, to the extent that the
+payment (when converted into the Required Currency at the rate of exchange on
+the date of payment or, if it is not practicable for the party entitled thereto
+(the “Payee”) to purchase the Required Currency with the Other Currency on the
+date of payment, at the rate of exchange as soon thereafter as it is practicable
+for it to do so) actually received by the Payee falls short of the amount due
+under the terms of any Loan Document, such Borrower shall, to the extent
+permitted by law, as a separate and independent obligation, indemnify and hold
+harmless the Payee against the amount of such short-fall. For the purpose of
+this Section, “rate of exchange” means the rate at which the Payee is able on
+the relevant date to purchase the Required Currency with the Other Currency and
+shall take into account any premium and other costs of exchange.
+
+ 
+
+
+
+82
+
+ 
+
+ 
+
+Section 12.12.  Headings. Article and Section headings and the Table of Contents
+used herein are for convenience of reference only, are not part of this
+Agreement and shall not affect the construction of, or be taken into
+consideration in interpreting, this Agreement.
+
+ 
+
+Section 12.13.  Confidentiality. Each of the Administrative Agent and the
+Lenders agrees to maintain the confidentiality of the Information (as defined
+below), except that Information may be disclosed (a) to its and its Affiliates’
+directors, officers, employees and agents, including accountants, legal counsel
+and other advisors on a need-to-know basis (it being understood that the Persons
+to whom such disclosure is made will be informed of the confidential nature of
+such Information and will agree to keep such Information confidential to the
+same extent as if they were parties hereto and the disclosing Administrative
+Agent or Lender shall be responsible for any breaches of the provisions of this
+Section 12.13), (b) to the extent requested by any central bank or the Federal
+Reserve or by any regulatory authority having jurisdiction over it or in
+connection with any pledge or assignment permitted under Section 12.04(d),
+(c) to the extent required by applicable laws or regulations or by any subpoena
+or similar legal process, (d) to any other party to this Agreement, (e) in
+connection with the exercise of any remedies hereunder or any suit, action or
+proceeding relating to any Loan Document or the enforcement of rights hereunder,
+(f) subject to an agreement containing provisions substantially the same as
+those of this Section, to (i) any assignee of or Participant in, or any
+prospective assignee of or Participant in, any of its rights or obligations
+under this Agreement (it being understood that the DQ List may be disclosed to
+any assignee or Participant, or prospective assignee or Participant, in reliance
+on and subject to the terms of this clause (f)(i)) or (ii) any actual or
+prospective counterparty (or its advisors) to any swap or derivative transaction
+relating to a Borrower and its obligations under this Agreement, (g) with the
+prior written consent of the Company, (h) to the extent requested by ratings
+agencies or (i) to the extent such Information (i) becomes publicly available
+other than as a result of a breach of this Section or (ii) becomes available to
+the Administrative Agent or any Lender on a nonconfidential basis from a source
+other than the Company. For the purposes of this Section, “Information” means
+all information received from or on behalf of the Company or any of its
+Affiliates relating to the Company or its business or any of its Affiliates or
+their respective businesses, other than any such information that is available
+to the Administrative Agent or any Lender on a nonconfidential basis prior to
+disclosure by the Company and other than information pertaining to this
+Agreement routinely provided by arrangers to data service providers, including
+league table providers, that serve the lending industry, after the Company has
+publicly disclosed this Agreement in a filing with the Securities and Exchange
+Commission (it being understood and agreed that the Company shall so disclose
+this Agreement in such a filing as and when required by applicable law). 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.
+
+ 
+
+
+
+83
+
+ 
+
+ 
+
+Section 12.14.  USA Patriot Act and Beneficial Ownership Regulation
+Notification. Each Lender that is subject to the requirements of the USA Patriot
+Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
+“Patriot Act”) and the requirements of the Beneficial Ownership Regulation
+hereby notifies each Credit Party that pursuant to the requirements of the
+Patriot Act and the Beneficial Ownership Regulation, it is required to obtain,
+verify and record information that identifies such Credit Party, which
+information includes the name, address and tax identification number of such
+Credit Party and other information that will allow such Lender to identify such
+Credit Party in accordance with the Patriot Act and the Beneficial Ownership
+Regulation. Each Credit Party agrees to cooperate with each Lender and provide
+true, accurate and complete information to such Lender in response to any such
+request.
+
+ 
+
+Section 12.15.  No Fiduciary Duty. (a) Each Agent, each Lender and their
+Affiliates (collectively, for purposes of this Section 12.15, the “Lender
+Parties”), may have economic interests that conflict with those of the
+Borrowers. Each Borrower agrees that, except as expressly provided otherwise in
+Section 12.04(b)(iv), nothing in the Loan Documents will be deemed to create an
+advisory, fiduciary or agency relationship or fiduciary or other implied duty
+between the Lender Parties and the Borrowers, its stockholders or its affiliates
+in connection with the transactions contemplated hereby. The Borrowers
+acknowledge and agree that (i) the transactions contemplated by the Loan
+Documents are arm’s-length commercial transactions between the Lender Parties,
+on the one hand, and the Borrowers, on the other, (ii) in connection therewith
+and with the process leading to such transactions contemplated by the Loan
+Documents each of the Lender Parties is acting solely as a principal and not the
+fiduciary of each of the Borrower, its management, stockholders, creditors or
+any other person, (iii) no Lender Party has assumed an advisory or fiduciary
+responsibility in favor of any Borrower with respect to the transactions
+contemplated hereby or the process leading thereto (irrespective of whether any
+Lender Party or any of its affiliates has advised or is currently advising any
+Borrower on other matters) and (iv) each Borrower has consulted its own legal
+and financial advisors to the extent it deemed appropriate. Each Borrower
+further acknowledges and agrees that it is responsible for making its own
+independent judgment with respect to the transactions contemplated hereby and
+the process leading thereto. Each Borrower agrees that it will not claim that
+any Lender Party has rendered advisory services of any nature or respect, or
+owes a fiduciary or similar duty to such Borrower, in connection with the
+transactions contemplated hereby or the process leading thereto.
+
+ 
+
+(b)         The Credit Parties further acknowledge and agree, and acknowledges
+its subsidiaries’ understanding, that each Lender Party and each Agent and
+Arranger is a full service securities or banking firm engaged in securities
+trading and brokerage activities as well as providing investment banking and
+other financial services. In the ordinary course of business, any Lender Party,
+Agent or Arranger may provide investment banking and other financial services
+to, and/or acquire, hold or sell, for its own accounts and the accounts of
+customers, equity, debt and other securities and financial instruments
+(including bank loans and other obligations) of, any Credit Party and other
+companies with which any Credit Party may have commercial or other
+relationships. With respect to any securities and/or financial instruments so
+held by any Lender Party or any such Agent or Arranger or any of its customers,
+all rights in respect of such securities and financial instruments, including
+any voting rights, will be exercised by the holder of the rights, in its sole
+discretion.
+
+  
+
+84
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+(c)         In addition, the Credit Parties acknowledge and agree, and
+acknowledge their subsidiaries’ understanding, that each Lender Party and its
+Affiliates may be providing debt financing, equity capital or other services
+(including financial advisory services) to other companies in respect of which
+any Credit Party may have conflicting interests regarding the transactions
+described herein and otherwise. No Lender Party nor its Affiliates will use
+confidential information obtained from any Credit Party, its Affiliates and/or
+its representatives by virtue of the Transactions contemplated by the Loan
+Documents or their other relationships with any Credit Party in connection with
+the performance by such Lender Party or its Affiliates of services for other
+companies, and no Lender Party nor its Affiliates will furnish any such
+information to other companies. The Credit Parties also acknowledge that no
+Lender Party has any obligation to use in connection with the Transactions
+contemplated by the Loan Documents, or to furnish to any Credit Party,
+confidential information obtained from other companies.
+
+ 
+
+Section 12.16.  Acknowledgement and Consent to Bail-in of Affected Financial
+Institutions. Notwithstanding anything to the contrary in any Loan Document or
+in any other agreement, arrangement or understanding among any such parties,
+each party hereto acknowledges that any liability of any Affected Financial
+Institution arising under any Loan Document may be subject to the Write-Down and
+Conversion Powers of the applicable Resolution Authority and agrees and consents
+to, and acknowledges and agrees to be bound by:
+
+ 
+
+(a)         the application of any Write-Down and Conversion Powers by the
+applicable Resolution Authority to any such liabilities arising hereunder which
+may be payable to it by any party hereto that is an Affected Financial
+Institution; and
+
+ 
+
+(b)         the effects of any Bail-In Action on any such liability, including,
+if applicable:
+
+ 
+
+(i)            a reduction in full or in part or cancellation of any such
+liability;
+
+ 
+
+(ii)            a conversion of all, or a portion of, such liability into shares
+or other instruments of ownership in such Affected Financial Institution, its
+parent entity, or a bridge institution that may be issued to it or otherwise
+conferred on it, and that such shares or other instruments of ownership will be
+accepted by it in lieu of any rights with respect to any such liability under
+this Agreement or any other Loan Document; or
+
+ 
+
+(iii)          the variation of the terms of such liability in connection with
+the exercise of the Write-Down and Conversion Powers of the applicable
+Resolution Authority.
+
+ 
+
+To the extent not prohibited by applicable law, rule or regulation, each Lender
+shall notify the Company and the Administrative Agent if it has become the
+subject of a Bail-In Action (or any case or other proceeding in which a Bail-In
+Action could reasonably be expected to be asserted against such Lender).
+
+ 
+
+Section 12.17.  Acknowledgement Regarding Any Supported QFCs. To the extent that
+the Loan Documents provide support, through a guarantee or otherwise, for Swap
+Agreements or any other agreement or instrument that is a QFC (such support “QFC
+Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge
+and agree as follows with respect to the resolution power of the Federal Deposit
+Insurance Corporation under the Federal Deposit Insurance Act and Title II of
+the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the
+regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in
+respect of such Supported QFC and QFC Credit Support (with the provisions below
+applicable notwithstanding that the Loan Documents and any Supported QFC may in
+fact be stated to be governed by the laws of the State of New York and/or of the
+United States or any other state of the United States):
+
+ 
+
+
+
+84
+
+ 
+
+ 
+
+In the event a Covered Entity that is party to a Supported QFC (each, a “Covered
+Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime,
+the transfer of such Supported QFC and the benefit of such QFC Credit Support
+(and any interest and obligation in or under such Supported QFC and such QFC
+Credit Support, and any rights in property securing such Supported QFC or such
+QFC Credit Support) from such Covered Party will be effective to the same extent
+as the transfer would be effective under the U.S. Special Resolution Regime if
+the Supported QFC and such QFC Credit Support (and any such interest, obligation
+and rights in property) were governed by the laws of the United States or a
+state of the United States. In the event a Covered Party or a BHC Act Affiliate
+of a Covered Party becomes subject to a proceeding under a U.S. Special
+Resolution Regime, Default Rights under the Loan Documents that might otherwise
+apply to such Supported QFC or any QFC Credit Support that may be exercised
+against such Covered Party are permitted to be exercised to no greater extent
+than such Default Rights could be exercised under the U.S. Special Resolution
+Regime if the Supported QFC and the Loan Documents were governed by the laws of
+the United States or a state of the United States. Without limitation of the
+foregoing, it is understood and agreed that rights and remedies of the parties
+with respect to a Defaulting Lender shall in no event affect the rights of any
+Covered Party with respect to a Supported QFC or any QFC Credit Support.
+
+ 
+
+[Signature pages follow]
+
+ 
+
+
+
+85
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
+executed and delivered by their respective authorized officers as of the day and
+year first above written.
+
+ 
+
+  CUMMINS INC.       By: /s/ Donald G. Jackson     Name:Donald G. Jackson    
+Title: Vice President – Treasurer
+
+ 
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  JPMORGAN CHASE BANK, N.A.,
+as Administrative Agent and a Lender           By:       /s/ Peter S. Predun    
+  Name: Peter S. Predun       Title: Executive Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  BANK OF AMERICA, N.A.,
+as a Lender           By:        /s/ Stephen J. D’Elia       Name: Stephen J.
+D’Elia       Title: Vice President
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  CITIBANK, N.A.,
+as a Lender           By:         /s/ Susan M. Olsen       Name: Susan M. Olsen
+      Title: Vice President
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  HSBC Bank USA, N.A.,
+as a Lender           By:        /s/ Matthew McLaurin       Name: Matthew
+McLaurin       Title: Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  ING BANK N.V., DUBLIN BRANCH,
+as a Lender           By:          /s/ Barry Fehily       Name: Barry Fehily    
+  Title: Managing Director           By:          /s/ Sean Hassett       Name:
+Sean Hassett       Title: Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
+as a Lender           By:          /s/ Jill Wong       Name: Jill Wong      
+Title: Director           By:         /s/ Gordon Yip       Name: Gordon Yip    
+  Title: Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+ 
+
+  MIZUHO BANK, LTD.,
+as a Lender           By:         /s/ Donna DeMagistris       Name: Donna
+DeMagistris       Title: Authorized Signatory
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  MUFG UNION BANK, N.A.
+as a Lender           By:        /s/ John Margetanski       Name: John
+Margetanski       Title: Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+    STANDARD CHARTERED BANK,
+as a Lender           By:          /s/ James Beck       Name: James Beck      
+Title: Associate Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  U.S. BANK NATIONAL ASSOCIATION,
+as a Lender           By:           /s/ Terrence Ward       Name: Terrence Ward
+      Title: Senior Vice President
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  WELLS FARGO BANK, NATIONAL ASSOCIATION,
+as a Lender                 /s/ Bradley Magnus     Name: Bradley Magnus    
+Title: Vice President
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED,
+as a Lender           By:        /s/ Robert Grillo       Name: Robert Grillo    
+  Title: Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  GOLDMAN SACHS BANK USA,
+as a Lender           By:         /s/ Ryan Durkin       Name: Ryan Durkin      
+Title: Authorized Signatory
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  THE NORTHERN TRUST COMPANY,
+as a Lender           By:         /s/ Lisa DeCristofaro       Name: Lisa
+DeCristofaro       Title: SVP
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  PNC BANK, NATIONAL ASSOCIATION,
+as a Lender           By:         /s/ James A. Woodward       Name: James A.
+Woodward       Title: Senior Vice President
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  SANTANDER BANK, N.A.,
+as a Lender           By:          /s/ Pablo Urgoiti       Name: Pablo Urgoiti  
+    Title: Managing Director            By:          /s/ Andres Barbosa      
+Name: Andres Barbosa       Title: Executive Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  UNICREDIT BANK AG, NEW YORK BRANCH
+as a Lender           By:         /s/ Douglas Riahi       Douglas Riahi      
+Managing Director           By:           /s/ Laura Shelmerdine       Laura
+Shelmerdine       Associate Director
+
+ 
+
+
+
+[Signature Page to 364-Day Credit Agreement (Cummins 2020)]
+
+
+
+ 
+
+
+
+ 
+
+ 
+[amendedandrestatedglpens001.jpg]
+THE GLOBE LIFE INC. AMENDED AND RESTATED PENSION PLAN GENERALLY EFFECTIVE AS OF
+JANUARY 1, 2020
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens002.jpg]
+BACKGROUND Effective as of January 1, 1983, Globe Life Inc. (the "Company"),
+previously known as “Torchmark Corporation,” established a defined benefit
+pension plan ("Plan"), which is intended to be qualified pursuant to the
+provisions of the Internal Revenue Code of 1986, as amended. The Plan also is
+intended to provide eligible non-commissioned employees of the Company, and
+those of any affiliate which adopts the Plan, with a supplemental source of
+retirement income. Effective as of January 1, 1989, the Plan was amended and
+restated to comply with the Tax Reform Act of 1986. The Plan was further amended
+effective January 1, 1992 and January 1, 1993. Effective as of January 1, 1993,
+the Employer adopted Amendments Two and Three to the Plan. Effective as of
+January 1, 1989, the Employer adopted Amendment Four to the Plan. Effective as
+of January 1, 1997, The Employer adopted Amendment Five to the Plan. Effective
+as of January 1, 1998, the Employer adopted Amendment Six to the Plan. Effective
+as of January 1, 2001, the Employer adopted Amendment Seven to the Plan.
+Effective as of January 1, 1997, the Plan was amended and restated to comply
+with a number of tax law changes generally described by the acronym "GUST," as
+the second amendment and restatement of the Plan, which constitutes Amendment
+Eight to the Plan. Effective as of January 1, 2002, the Employer adopted
+Amendment Nine to the Plan. Effective as of January 1, 2001, the Employer
+adopted Amendment Ten to the Plan. Effective as of January 1, 2004, the Employer
+adopted Amendment Eleven to the Plan. Effective as of March 28, 2005, the
+Employer adopted Amendment Twelve to the Plan. Effective as of January 1, 2008,
+the Employer adopted Amendment Thirteen to the Plan. Effective as of the various
+dates specified therein, the Employer adopted Amendment Fourteen to the Plan.
+Effective as of January 1, 2009, the Plan was amended and restated to comply
+with a number of tax law changes generally described by the acronym "EGTRRA," as
+the third amendment and restatement of the Plan, which constitutes Amendment
+Fifteen to the Plan. Effective as of January 1, 2012, the Employer adopted
+Amendment Sixteen to the Plan. Effective as of the various dates specified
+therein, the Employer adopted Amendment Seventeen to the Plan. i
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens003.jpg]
+The fourth amendment and restatement of the Plan was adopted to comply with a
+number of tax law changes generally described by the acronym "PPA." The fourth
+amendment and restatement of the Plan was generally effective as of January 1,
+2014 and constituted Amendment Eighteen to the Plan. Effective as of January 1,
+2020, the Employer adopted the 2020 First Amendment to the Plan which reflected
+the change in the Company’s name and the change in the Plan’s name. Effective as
+of January 1, 2003, the Employer adopted the Amendment to the Plan which
+constituted the correction approved by the Internal Revenue Service in the VCP
+Compliance Statement dated July 16, 2020. This fifth amendment and restatement
+of the Plan is adopted to incorporate prior amendments and to reflect the change
+in the Company’s name and the change in the Plan’s name, and is effective
+January 1, 2020. The benefit under the Plan of any Participant who terminates
+employment or becomes disabled shall be determined in accordance with the
+provisions of the Plan as in effect on the date of such termination of
+employment or Disability. ii
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens004.jpg]
+TABLE OF CONTENTS ARTICLE I DEFINITIONS
+.....................................................................................................
+I-1 1.1 Accrued Retirement Benefit
+..........................................................................................
+I-1 1.2 Actuarial Equivalent
+......................................................................................................
+I-1 1.3 Administrative Committee
+............................................................................................
+I-2 1.4 Administrator
+................................................................................................................
+I-2 1.5 Affiliate
+.........................................................................................................................
+I-2 1.6 Beneficiary
+....................................................................................................................
+I-2 1.7 Benefit Commencement Date
+.......................................................................................
+I-2 1.8 Board of Directors or Board
+..........................................................................................
+I-2 1.9 Code
+..............................................................................................................................
+I-2 1.10 Company
+.......................................................................................................................
+I-2 1.11 Comparable Plan
+...........................................................................................................
+I-2 1.12 Compensation
+................................................................................................................
+I-2 1.13 Covered Compensation
+.................................................................................................
+I-4 1.14 Credited Service
+............................................................................................................
+I-4 1.15 Deferred Retirement
+......................................................................................................
+I-4 1.16 Defined Benefit Plan
+.....................................................................................................
+I-4 1.17 Defined Contribution Plan
+............................................................................................
+I-4 1.18 Disability
+.......................................................................................................................
+I-4 1.19 Early Retirement
+...........................................................................................................
+I-4 1.20 Effective Date
+................................................................................................................
+I-4 1.21 Eligible Employee
+.........................................................................................................
+I-5 1.22 Employee
+.......................................................................................................................
+I-5 1.23 Employer
+.......................................................................................................................
+I-6 1.24 Employment
+..................................................................................................................
+I-6 1.25 Entry Date
+.....................................................................................................................
+I-6 1.26 ERISA
+...........................................................................................................................
+I-6 1.27 Final Average Compensation
+........................................................................................
+I-6 1.28 Hour of Service:
+............................................................................................................
+I-6 1.29 Investment Manager
+......................................................................................................
+I-8 1.30 Leased Employee
+..........................................................................................................
+I-8 1.31 Liberty National Commissioned Participant
+................................................................. I-8 1.32
+Liberty National Non-Commissioned Participant
+......................................................... I-8 iii
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens005.jpg]
+1.33 Liberty National Non-Commissioned Pension Plan
+..................................................... I-8 1.34 Liberty National
+Pension Plan
+.......................................................................................
+I-8 1.35 Non-Vested Separation
+.................................................................................................
+I-8 1.36 Normal Retirement
+........................................................................................................
+I-8 1.37 Normal Retirement Age
+................................................................................................
+I-8 1.38 Normal Retirement Date
+...............................................................................................
+I-9 1.39 One Year Break in Service
+............................................................................................
+I-9 1.40 Participant
+......................................................................................................................
+I-9 1.41 Participating Affiliates
+..................................................................................................
+I-9 1.42 Plan
+................................................................................................................................
+I-9 1.43 Plan Year
+.......................................................................................................................
+I-9 1.44 Qualified Joint and Survivor Annuity
+........................................................................... I-9
+1.45 Qualified Plan
+................................................................................................................
+I-9 1.46 Qualified Pre-Retirement Survivor Annuity
+................................................................. I-9 1.47
+Retirement Benefit
+........................................................................................................
+I-9 1.48 Schroder Plan
+................................................................................................................
+I-9 1.49 Social Security Offset Percentage
+.................................................................................
+I-9 1.50 Social Security Retirement Age
+..................................................................................
+I-10 1.51 Special Average Earnings
+...........................................................................................
+I-10 1.52 Spouse
+.........................................................................................................................
+I-10 1.53 Surviving Spouse
+.........................................................................................................
+I-10 1.54 Trust or Trust Fund
+.....................................................................................................
+I-11 1.55 Trust Agreement
+..........................................................................................................
+I-11 1.56 Trustee
+.........................................................................................................................
+I-11 1.57 Vested Separation
+........................................................................................................
+I-11 1.58 Vesting Service
+...........................................................................................................
+I-11 1.59 Year of Service:
+...........................................................................................................
+I-11 ARTICLE II PARTICIPATION
+.............................................................................................
+II-1 2.1 Admission as a Participant
+..........................................................................................
+II-1 2.2 Reemployment
+............................................................................................................
+II-1 2.3 Termination of Participation
+.......................................................................................
+II-1 ARTICLE III RETIREMENT BENEFIT
+............................................................................
+III-1 3.1 Retirement Benefit Formula
+.......................................................................................
+III-1 3.2 Rules for Determining Years of Credited Service
+..................................................... III-1 iv
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens006.jpg]
+3.3 Retirement Benefit Formula with respect to a Liberty National Non-
+Commissioned Participant or a Liberty National Commissioned Participant
+............ III-3 3.4 Limitation on Benefits
+................................................................................................
+III-5 ARTICLE IV VESTING PROVISIONS
+...............................................................................
+IV-1 4.1 Determination of Vesting
+...........................................................................................
+IV-1 4.2 Rules for Crediting Vesting Service
+........................................................................... IV-1
+4.3 Retirement Benefit Forfeitures
+...................................................................................
+IV-1 4.4 TMK Hogan
+...............................................................................................................
+IV-2 4.5 Vesta Insurance Group, Inc.
+.......................................................................................
+IV-2 ARTICLE V AMOUNT AND COMMENCEMENT OF RETIREMENT BENEFITS .... V-1 5.1
+Determination of Amount of Retirement Benefits
+...................................................... V-1 5.2 Suspension of
+Payments
+..............................................................................................
+V-2 5.3 Limitation on Commencement of Benefits
+................................................................. V-3 ARTICLE VI
+FORMS OF PAYMENT OF RETIREMENT BENEFIT ........................... VI-1 6.1
+Methods of Distribution
+.............................................................................................
+VI-1 6.2 Election of Optional Forms
+........................................................................................
+VI-2 6.3 Direct Rollovers
+.........................................................................................................
+VI-3 6.4 Notices
+........................................................................................................................
+VI-4 ARTICLE VII DEATH BENEFITS
+....................................................................................
+VII-1 7.1 Eligibility for Pre-Retirement Death Benefit
+........................................................... VII-1 7.2 Form of
+Pre-Retirement Death Benefit
+.................................................................... VII-1 7.3
+Election to Waive
+.....................................................................................................
+VII-2 7.4 Beneficiaries
+.............................................................................................................
+VII-2 7.5 After-Death Distribution Rules
+................................................................................
+VII-2 ARTICLE VIII CONTRIBUTIONS AND FORFEITURES
+........................................... VIII-1 8.1 Contribution by the
+Company
+.................................................................................
+VIII-1 8.2 Contributions by Employees
+...................................................................................
+VIII-1 8.3 Forfeitures
+...............................................................................................................
+VIII-1 8.4 Return of Employer Contributions under Special
+Circumstances........................... VIII-1 ARTICLE IX FIDUCIARIES
+................................................................................................
+IX-1 9.1 Named Fiduciaries
+......................................................................................................
+IX-1 9.2 Employment of Advisers
+............................................................................................
+IX-1 9.3 Multiple Fiduciary Capacities
+....................................................................................
+IX-1 9.4 Reliance
+......................................................................................................................
+IX-1 9.5 Scope of Authority and Responsibility
+...................................................................... IX-1 v
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens007.jpg]
+9.6 Trustee Subject to Directions of Named Fiduciary
+.................................................... IX-2 ARTICLE X TRUSTEE
+...........................................................................................................
+X-1 10.1 Trust Agreement
+..........................................................................................................
+X-1 10.2 Assets in Trust
+.............................................................................................................
+X-1 ARTICLE XI ADMINISTRATIVE COMMITTEE
+............................................................ XI-1 11.1
+Appointment and Removal of Administrative Committee
+........................................ XI-1 11.2 Officers of Administrative
+Committee
+....................................................................... XI-1
+11.3 Action by Administrative Committee
+........................................................................ XI-1
+11.4 Rules and Regulations
+................................................................................................
+XI-1 11.5 Powers
+........................................................................................................................
+XI-1 11.6 Information from Participants
+....................................................................................
+XI-2 11.7 Reports
+.......................................................................................................................
+XI-2 11.8 Authority to Act
+.........................................................................................................
+XI-2 11.9 Liability for Acts
+........................................................................................................
+XI-2 11.10 Compensation and Expenses
+......................................................................................
+XI-2 11.11 Indemnity
+...................................................................................................................
+XI-3 11.12 Denied Claims
+............................................................................................................
+XI-3 ARTICLE XII PLAN AMENDMENT OR TERMINATION
+........................................... XII-1 12.1 Plan Amendment
+......................................................................................................
+XII-1 12.2 Limitations on Plan Amendment
+..............................................................................
+XII-1 12.3 Right of the Employer to Terminate Plan
+................................................................ XII-1 12.4
+Effect of Partial or Complete Termination
+............................................................... XII-2 12.5
+Allocation of Assets
+.................................................................................................
+XII-2 12.6 Residual Assets
+........................................................................................................
+XII-2 12.7 Limitations Applicable to Certain Highly Paid Participants
+.................................... XII-3 ARTICLE XIII MISCELLANEOUS PROVISIONS
+....................................................... XIII-1 13.1 Exclusive
+Benefit of Participants
+............................................................................
+XIII-1 13.2 Plan Not a Contract of Employment
+....................................................................... XIII-1
+13.3 Source of Benefits
+...................................................................................................
+XIII-1 13.4 Benefits Not Assignable
+..........................................................................................
+XIII-1 13.5 Domestic Relations Orders
+......................................................................................
+XIII-1 13.6 Benefits Payable to Minors, Incompetents and Others
+........................................... XIII-2 13.7 Merger or Transfer of
+Assets
+..................................................................................
+XIII-2 13.8 Participation in the Plan by an Affiliate Section 13.8 was amended
+effective January 1, 2012 to read as follows
+..........................................................................
+XIII-2 vi
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens008.jpg]
+13.9 Action by Employer
+................................................................................................
+XIII-3 13.10 Provision of Information
+.........................................................................................
+XIII-3 13.11 Controlling Law
+......................................................................................................
+XIII-3 13.12 Conditional Restatement
+.........................................................................................
+XIII-3 13.13 Rules of Construction
+..............................................................................................
+XIII-3 13.14 USERRA
+.................................................................................................................
+XIII-3 ARTICLE XIV MINIMUM RETIREMENT
+INCOME................................................... XIV-1 14.1 Prior Plans
+...............................................................................................................
+XIV-1 ARTICLE XV TOP-HEAVY PROVISIONS
+...................................................................... XV-1 15.1
+Definitions
+................................................................................................................
+XV-1 15.2 Top Heavy Rules
+......................................................................................................
+XV-4 15.3 Compensation
+...........................................................................................................
+XV-4 15.4 Benefit
+......................................................................................................................
+XV-4 15.5 Vesting
+.....................................................................................................................
+XV-5 15.6 Miscellaneous
+...........................................................................................................
+XV-5 ARTICLE XVI BENEFIT RESTRICTIONS
+.................................................................... XVI-1 16.1
+Limitations Applicable If the Plan's Adjusted Funding Target Attainment
+Percentage Is Less Than 80 Percent or If the Plan Sponsor Is In Bankruptcy
+........ XVI-1 16.2 Provisions Applicable After Limitations Cease to Apply:
+...................................... XVI-3 16.6 Definitions
+...............................................................................................................
+XVI-4 16.7 Effective Date
+..........................................................................................................
+XVI-4 vii
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens009.jpg]
+ARTICLE I DEFINITIONS Each of the following terms shall have the meaning set
+forth in this Article I for purposes of this Plan: 1.1 Accrued Retirement
+Benefit: As of any date, the Retirement Benefit of a Participant calculated
+pursuant to the provisions of Article III (assuming he were to continue accruing
+Credited Service until Normal Retirement Age) times a fraction, the numerator of
+which is the number of years of Credited Service the Participant has then
+completed and the denominator of which is the total years of Credited Service he
+would have completed if he had continued in covered Employment until his Normal
+Retirement Age. In no event shall a Participant's Accrued Retirement Benefit be
+less than the Accrued Retirement Benefit to which the Participant would have
+been entitled had he terminated Employment on December 31, 1988 under the
+provisions of the Plan as then in effect. Notwithstanding the preceding
+paragraph, the Accrued Retirement Benefit with respect to a Liberty National
+Commissioned Participant or a Liberty National Non-Commissioned Participant
+shall mean as of any date, the Retirement Benefit of a Participant calculated
+pursuant to the provisions of Article III as if the Participant's Employment
+terminated on such date, but in no event less than the Accrued Retirement
+Benefit to which the Participant would have been entitled under the provisions
+of the Liberty National Pension Plan or the Liberty National Non-Commissioned
+Pension Plan as then in effect had he terminated Employment on December 31,
+1988. 1.2 Actuarial Equivalent: An amount or a benefit of equivalent current
+value to the Retirement Benefit which would otherwise be provided a Participant,
+determined on the basis of the following actuarial assumptions for all forms of
+benefit in determining the amount payable to a Participant having an annuity
+starting date in a Plan Year beginning on or after January 1, 2008 (unless a
+different assumption is mandated for a specific purpose by the Pension Benefit
+Guaranty Corporation (PBGC) or IRS in which case such mandated assumption shall
+be substituted): (a) Applicable mortality assumption. The applicable mortality
+table within the meaning of Code § 417(e)(3)(B), as initially described in
+Revenue Ruling 2007-67 (the "2008 Applicable Mortality Table") and any
+subsequent mortality table promulgated by the IRS for this purpose in place of
+the 2008 Applicable Mortality Table. (b) Applicable interest rate. The rate of
+interest determined by the applicable interest rate described by Code § 417(e)
+after its amendment by the Pension Protection Act of 2006. Specifically, the
+applicable interest rate shall be the adjusted first, second, and third segment
+rates applied under the rules similar to the rules of Code § 430(h)(2)(C) for
+the second full calendar month (lookback month) preceding the calendar quarter
+in which the annuity starting date occurs (calendar quarter stability period).
+For this purpose, the adjusted first, second, and third segment rates are the
+first, second, and third segment rates which would be determined under Code §
+430(h)(2)(C) if: (i) Code § 430(h)(2)(D) were applied by substituting the
+average yields for the month described in the preceding Section 1.2(b) for the
+average yields for the 24-month period described in such Code Section; and (ii)
+Code § 430(h)(2)(G)(i)(II) were applied by substituting "Code §
+417(e)(3)(A)(ii)(II) for "Code § 412(b)(5)(B)(ii)(II)." I-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens010.jpg]
+1.3 Administrative Committee: The committee appointed by the Board pursuant to,
+and having the responsibilities specified in, Article XI of the Plan. 1.4
+Administrator: The Company or Administrative Committee appointed by the Board of
+Directors pursuant to, and having the responsibilities specified in, Article XI
+of the Plan. 1.5 Affiliate: Any corporation or unincorporated trade or business
+(other than the Company) while it is: (a) A member of a "controlled group of
+corporations" (within the meaning of Code § 414(b)) of which the Company is a
+member; (b) A trade or business under "common control" (within the meaning of
+Code § 414(c)) with the Company; (c) A member of an "affiliated service group"
+(within the meaning of Code § 414(m)) which includes the Company; or (d) Any
+other entity required to be aggregated with the Company under Code § 414(o). 1.6
+Beneficiary: A person other than a Participant entitled to receive any payment
+of benefits pursuant to the terms of this Plan. 1.7 Benefit Commencement Date:
+The date, determined under Article V, as of which a Participant or a Beneficiary
+receives or begins to receive, as the case may be, payment of his benefits under
+the Plan. 1.8 Board of Directors or Board: The Board of Directors of the
+Company. 1.9 Code: The Internal Revenue Code of 1986, as now in effect or as
+amended from time to time. A reference to a specific provision of the Code shall
+include such provision and any applicable Regulation pertaining thereto. 1.10
+Company: Globe Life Inc. (formerly known as Torchmark Corporation), or any
+successor thereto by consolidation, merger, transfer of assets or otherwise.
+1.11 Comparable Plan: A plan of the same type as described in Regulation §
+1.381(c)(11)- 1(d)(4). 1.12 Compensation: The total cash compensation paid to an
+Employee during a calendar year by his Employer, including salary, wages,
+bonuses, any amounts not paid directly and currently in cash to an Employee but
+paid for the benefit of an Employee through a "salary reduction" agreement in
+conjunction with one or more welfare plans, any qualified transportation fringes
+of the Employer and the total amount deferred pursuant to an Employee's election
+under a "cash or deferred arrangement" in conjunction with one or more qualified
+retirement plans of the Employer, but excluding: (a) Any reimbursement of or
+allowances for expenses; I-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens011.jpg]
+(b) Employer contributions to any form of employee retirement, pension, profit
+sharing or thrift plan; (c) Director's fees; (d) Annual service awards; (e)
+Deferred compensation accrued under any nonqualified deferred compensation
+agreement or contract or any amendment or replacement thereof; (f) Commissions,
+other than commissions payable with respect to or on account of the sale or
+lease of real property; and (g) Payments made to any Employee after such
+Employee's separation from service, in the form of severance benefits. The
+definition of Compensation shall apply as set forth in this Section 1.12 with
+respect to a Liberty National Non-Commissioned Participant by replacing Section
+1.12(f) in the list of excluded forms of compensation above, as follows: (h)
+Commissions; and The definition of Compensation shall apply as set forth in this
+Section 1.12 with respect to a Liberty National Commissioned Participant by
+replacing Sections 1.12(f) and (g) in the list of excluded forms of compensation
+above and by adding Section 1.12(h) as follows: (i) Renewal commissions, other
+than renewal commissions paid to agents authorized to solicit applications for
+both ordinary and home service policies of insurance; (j) Any amounts due to or
+paid to a Participant as a result of the settlement of his or her commission
+account balance upon the termination of his or her Employment for any reason;
+and (k) Payments made to any Employee after such Employee's separation from
+service, in the form of severance benefits. The determination of Compensation
+will be in accordance with records maintained by the Employer and shall be
+conclusive. Anything in this definition to the contrary notwithstanding, the
+Compensation taken into account for a Participant for Plan purposes for any Plan
+Year commencing on or after January 1, 1989 and prior to January 1, 1994 shall
+not exceed $200,000 (or such adjusted amount as may be prescribed for such Plan
+Year pursuant to Code § 401(a)(17)) and for any Plan Year commencing after
+December 31, 1993 shall not exceed $150,000 (or such adjusted amount as may be
+prescribed for such Plan Year pursuant to Code § 401(a)(17)). The annual
+Compensation of each Participant taken into account in determining benefit
+accruals in any Plan Year beginning after December 31, 2001, shall not exceed
+$200,000. Annual Compensation means compensation during the Plan Year or such
+other consecutive 12-month period over which compensation is otherwise
+determined under the Plan (the determination period). For purposes of
+determining benefit accruals in a Plan Year beginning after December 31, 2001,
+the annual Compensation limit for determination periods beginning before January
+1, 2002, shall be $150.000 for any determination period beginning in 1996 or
+earlier; $160,000 for any determination period I-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens012.jpg]
+beginning in 1997, 1998, or 1999; and $170,000 for any determination period
+beginning in 2000 or 2001. The $200,000 limit on annual Compensation shall be
+adjusted for cost-of-living increases in accordance with Code § 401(a)(17)(B).
+The cost-of-living adjustment in effect for a calendar year applies to annual
+Compensation for the determination period that begins with or within such
+calendar year. Compensation paid after "Severance from Employment" for purposes
+of benefits shall be adjusted in the same manner as 415 Compensation pursuant to
+Section 3.4.3(a) if those amounts would have been included in earnings if they
+were paid prior to the Participant's "Severance from Employment," except in
+applying Section 3.4.4, the term "Limitation Year" shall be replaced with the
+term "Plan Year" and the term "415 Compensation" shall be replaced with the term
+"Compensation." Compensation for purposes of benefits does not include any
+termination or severance pay or final vacation pay, regardless of when paid. The
+provisions of this paragraph shall apply for Plan Years beginning on and after
+January 1, 2008. 1.13 Covered Compensation: The average of the annual
+contribution and benefits base under § 230 of the Social Security Act for each
+year for the 35 year period ending in the year the Participant reaches Social
+Security Retirement Age (SSRA), except for a Participant who separates before
+attainment of SSRA the base for the year of separation will be assumed to be the
+base for all future years to SSRA without increases or adjustments. 1.14
+Credited Service: The Years of Service for computation of the amount of a
+Participant's Retirement Benefit as defined in Article III. 1.15 Deferred
+Retirement: Termination of Employment of a Participant after his Normal
+Retirement Date. 1.16 Defined Benefit Plan: A plan of the type defined in Code §
+414(j) maintained by the Company or an Affiliate, as applicable. 1.17 Defined
+Contribution Plan: A plan of the type defined in Code § 414(i) maintained by the
+Company or an Affiliate, as applicable. 1.18 Disability: Total and permanent
+disability for a period of at least six months as defined by either (i) the
+group disability benefit plan maintained by the Participant's Employer, or (ii)
+the United States Social Security Administration. 1.19 Early Retirement:
+Termination of Employment, other than by reason of Disability or death, of a
+Participant prior to Normal Retirement Age who has completed at least 10 full
+years of Vesting Service and has attained the age of 55. With respect to a
+Liberty National Commissioned Participant or a Liberty National Non-
+Commissioned Participant, Early Retirement shall mean termination of Employment,
+other than by reason of Disability or death, of a Participant prior to Normal
+Retirement Age who has completed at least 15 full years of Vesting Service and
+has attained the age of 55. 1.20 Effective Date: The original effective date of
+the Plan is January 1, 1983, while the terms and conditions of this restated and
+amended Plan as herein set forth shall be effective, except as may otherwise be
+specified herein, on or after January 1, 2020. I-4
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens013.jpg]
+1.21 Eligible Employee: Section 1.21 was amended effective January 1, 2013 to
+read as follows: Except as provided in the second paragraph of this Section
+1.21, (a) all Employees of the Company; (b) all Employees of each Affiliate
+(other than Liberty National Life Insurance Company) participating in the Plan
+pursuant to Section 13.8; and (c) all Employees of Liberty National Life
+Insurance Company who have an initial date of hire after December 31, 2011 on
+the employment records of Liberty National Life Insurance Company (whether as a
+new hire or a transfer of employment from an Affiliate). The foregoing paragraph
+notwithstanding, the following Employees of the Company and of each Affiliate
+(including Liberty National Life Insurance Company) are not included in the term
+"Eligible Employee:" (d) Employees who are classified, treated or otherwise
+characterized by the Employer as general agents, trainers, agents, branch
+managers, regional managers, district managers, brokers, solicitors, unit
+managers, assistant unit managers or any other individual whose primary duty
+involves the direct sale of insurance, regardless of the mode of compensation;
+(e) Employees included in a unit of employees covered by a collective bargaining
+agreement between the Employer and the employee representatives in the
+negotiation of which retirement benefits were the subject of good faith
+bargaining, unless such bargaining agreement provides for participation in the
+Plan; (f) Leased Employees; and (g) an Employee of a former "Employer,"
+including, without limitation, a "Participating Employer," as those terms were
+defined in the Liberty National Pension Plan or the Liberty National
+Non-Commissioned Pension Plan if such Employee was first credited with an Hour
+of Service on or after January 1, 1995 and before January 1, 2012. The term
+"Eligible Employee" shall not include, prior to January 1, 2004, Employees of a
+Participating Employer in the Plan if the Participating Employer was identified
+as an "Employer," including, without limitation, a "Participating Employer," in
+the Liberty National Pension Plan or the Liberty National Non-Commissioned
+Pension Plan prior to January 1, 2004. For historical purposes only, Eligible
+Employees under the Liberty National Non- Commissioned Pension Plan did not
+include: any individual whose duties include selling products of Liberty
+National Life Insurance Company or an Affiliate on a commissioned basis and any
+Employee of Liberty National Life Insurance Company who were first credited with
+an Hour of Service on or after January 1, 1995; and Eligible Employees under the
+Liberty National Pension Plan included all Employees of Liberty National Life
+Insurance Company who were compensated in whole or in part by commissions or
+under contract with an Employer as a District Manager or a Career Agent
+performing services for remuneration for the Employer as a full-time life
+insurance salesman, and did not include Employees who were first credited with
+an Hour of Service on or after January 1, 1995. For purposes of this paragraph,
+the meaning of the terms used herein shall have the same meaning they had under
+the respective former plan. 1.22 Employee: Section 1.22 was amended effective
+January 1, 2012 to read as follows: Any individual who is classified, treated or
+otherwise characterized by an Employer as a common law employee of an Employer,
+and Leased Employees within the meaning of Code § 414(n)(2). Notwithstanding the
+foregoing, if such Leased Employees do not constitute more than 20% of the
+Employer's nonhighly compensated work force within the meaning of Code §
+414(n)(5)(C)(ii), the term "Employee" shall not include those Leased Employees
+covered by a plan described in Code § 414(n)(5) unless otherwise provided by the
+terms of this Plan. Any individual who is classified, treated or otherwise
+characterized by an Employer as an independent contractor is not included in the
+I-5
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens014.jpg]
+term "Employee." The foregoing determination of whether an individual is an
+"Employee" for purposes of this Plan shall be made by an Employer subject to the
+approval and consent of the Administrator in its sole discretion. Said
+determination shall apply for all purposes of this Plan and regardless of
+whether such individual is later classified by any governmental agency, court,
+tribunal, governing body or any other person or entity as a common law employee
+of an Employer. It is the intent hereof that an Employer subject to the approval
+and consent of the Administrator shall decide in its sole discretion which
+individuals are classified as an Employee for purposes of this Plan. 1.23
+Employer: The Company and each Affiliate participating in the Plan pursuant to
+Section 13.8. 1.24 Employment: An Employee's employment with the Company or an
+Affiliate or, to the extent determined by the Administrator, any predecessor of
+any of them. 1.25 Entry Date: The first day of the payroll period following the
+date the Eligible Employee has satisfied the requirements of Section 2.1.1. 1.26
+ERISA: The Employee Retirement Income Security Act of 1974, as amended from time
+to time. Reference to a specific provision of ERISA shall include such provision
+and any applicable regulation pertaining thereto. 1.27 Final Average
+Compensation: The highest average of the Participant's annual Compensation for
+any five consecutive full calendar years of Employment during the 10 consecutive
+calendar years of Employment immediately preceding the Participant's termination
+of Employment, provided that any service credited for a period of Disability
+shall be disregarded in determining such 10 consecutive years. In the event the
+Participant does not have at least five full calendar years of Employment, Final
+Average Compensation shall mean the average annual Compensation for the
+Participant's total number of full years of Employment. A Participant's annual
+Compensation, without annualization, during the part of the calendar year
+immediately preceding his termination of Employment will be treated as his
+annual Compensation for a full calendar year for the purpose of this Section
+1.27 if that produces a higher average. If a Participant is rehired and is
+entitled to the reinstatement of prior Credited Service and Vesting Service and
+does not have at least five full consecutive years of annual Compensation after
+he is rehired, then his Final Average Compensation shall mean the average of the
+annual Compensation for the Participant's last five complete calendar years of
+Employment. 1.28 Hour of Service: (a) Each hour for which an Employee is paid,
+or entitled to payment, for the performance of duties for an Employer (or (i)
+for an Affiliate in the case of an Employee who has transferred his Employment
+to the Employer from such Affiliate, and (ii) with respect to a person who
+became a Participant on January 1, 1985 and who on December 31, 1984 was
+employed by Schroder Energy Advisors, for Schroder Energy Advisors or any other
+participating employers in the Schroder Plan) during the applicable computation
+period. (b) Each hour for which an Employee is paid, or entitled to payment, by
+an Employer (or (i) by an Affiliate in the case of an Employee who has
+transferred his Employment to the Employer from such Affiliate, and (ii) with
+respect to a person who became a Participant on January 1, 1985 and who on
+December 31, 1984 was employed by Schroder Energy Advisors, for Schroder I-6
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens015.jpg]
+Energy Advisors or any other participating employers in the Schroder Plan) on
+account of a period of time during which no duties are performed (irrespective
+of whether the employment relationship has terminated) due to vacation, holiday,
+illness, incapacity (including Disability), lay-off, jury duty, military duty or
+leave of absence. An hour for which an Employee is directly or indirectly paid
+or entitled to payment on account of a period during which no duties are
+performed is not credited to the Employee if such payment is made or due under a
+plan maintained solely for the purpose of providing severance benefits or
+complying with the applicable unemployment compensation laws. Hours of Service
+are not credited for a payment which solely reimburses an Employee for medical
+or medically related expenses incurred by the Employee. (c) Each hour for which
+back pay, irrespective of mitigation of damages, is either awarded or agreed to
+by an Employer (or (i) by an Affiliate in the case of an Employee who has
+transferred his Employment to the Employer from such Affiliate, and (ii) with
+respect to a person who became a Participant on January 1, 1985 and who on
+December 31, 1984 was employed by Schroder Energy Advisors, for Schroder Energy
+Advisors or any other participating employers in the Schroder Plan). The same
+Hours of Service shall not be credited both under Section 1.28(a) or Section
+1.28(b), as the case may be, and under this Section 1.28(c). (d) If, in
+accordance with standard personnel policies applied in a non- discriminatory
+manner to all Employees similarly situated, an Employer determines in writing
+that an Employee's approved, unpaid leave of absence furthers the interest of
+the Employer, each hour for which the Employee on the approved unpaid leave of
+absence would normally have received credit under this Plan if he had been
+working in his regular Employment for the Employer (or an Affiliate in the case
+of an Employee who has transferred his Employment to the Employer from such
+Affiliate). (e) An Employee of the Employer (or an Affiliate in the case of an
+Employee who has transferred his Employment to the Employer from such Affiliate)
+who is regularly employed by such Employer (or Affiliate) for at least 35 hours
+a week shall be credited with 45 Hours of Service if under this Plan he would be
+credited with at least one Hour of Service during the week. (f) An Employee of
+the Employer (or an Affiliate in the case of an Employee who has transferred his
+Employment to the Employer from such Affiliate) who is not regularly employed by
+such Employer (or Affiliate) for at least 35 hours a week shall be credited with
+the actual Hours of Service for which he is paid or entitled to credit under
+this Plan. Provided, however, notwithstanding anything to the contrary in the
+preceding sentence, for the period beginning January 1, 2003 and ending December
+31, 2019, an Employee of the Employer (or an Affiliate in the case of an
+Employee who has transferred his Employment to the Employer from such Affiliate)
+who is not regularly employed by such Employer (or Affiliate) for at least 35
+hours a week shall be credited with 45 Hours of Service if under this Plan he
+would be credited with at least one Hour of Service during the week. With
+respect to periods after December 31, 2019, the first sentence of this
+Subsection 1.28(f) shall apply. (g) Hours of Service shall be calculated and
+credited pursuant to § 2530-200b-2 of the Department of Labor Regulations which
+are incorporated herein by this reference. (h) With respect to a Liberty
+National Commissioned Participant, Sections 1.28(e) and (f) shall not apply, and
+the following shall apply in determining Hours of Service: (i) all references to
+Schroder Energy Advisors shall not apply; (ii) for years prior to January 1,
+1986, an Employee whose compensation from an Employer (or an Affiliate in the
+case of an Employee who has transferred his Employment to the Employer from such
+Affiliate) with respect to a week consists in part of I-7
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens016.jpg]
+1 commissions, or who is regularly employed by such Employer (or Affiliate) for
+at least 37 /2 hours a week shall be credited with 45 Hours of Service if under
+the Plan he would be credited with at least one Hour of Service during the week.
+Effective January 1, 1986, an Employee of the Employer (or an Affiliate in the
+case of an Employee who has transferred his Employment to the Employer from such
+Affiliate) shall be credited with 45 Hours of Service if under this Plan he
+would be credited with at least one Hour of Service during the week; (iii) for
+years prior to January 1, 1986, an Employee whose compensation from the Employer
+(or an Affiliate in the case of an Employee who has transferred his Employment
+to the Employer from such Affiliate) with respect to a week does not consist in
+part of commissions and who is not regularly employed by such Employer (or
+Affiliate) for at least 37 '/2 hours a week shall be credited with the actual
+Hours of Service for which he is paid or entitled to credit under this Plan. (i)
+With respect to a Liberty National Non-Commissioned Participant, all references
+to Schroder Energy Advisors shall not apply. 1.29 Investment Manager: Any person
+appointed pursuant to Section 9.1 having the power to direct the investment of
+assets in accordance with that Section. 1.30 Leased Employee: Any individual
+(who otherwise is not an Employee of the Employer) who, pursuant to a leasing
+agreement between the Employer and any other person, has performed services for
+the Employer (or for the Employer and any persons related to the Employer within
+the meaning of Code §144(a)(3)) on a substantially full time basis for at least
+one year and who performs services under the primary direction and control of
+the Employer. 1.31 Liberty National Commissioned Participant: A Former
+Participant in the Liberty National Pension Plan who came into the Plan
+effective January 1, 2004 pursuant to the merger of the Liberty National Pension
+Plan with and into the Plan. 1.32 Liberty National Non-Commissioned Participant:
+A Former Participant in the Liberty National Non-Commissioned Pension Plan who
+came into the Plan effective January 1, 2004 pursuant to the merger of the
+Liberty National Non-Commissioned Pension Plan with and into the Plan. This
+shall specifically include Liberty National Non-Commissioned Participants who
+are employees of United Investors Life Insurance Company. 1.33 Liberty National
+Non-Commissioned Pension Plan: The Liberty National Life Insurance Company
+Pension Plan for Non-Commissioned Employees, which merged with and into the Plan
+on January 1, 2004. 1.34 Liberty National Pension Plan: The Liberty National
+Life Insurance Company Pension Plan, which merged with and into the Plan on
+January 1, 2004. 1.35 Non-Vested Separation: Termination of Employment (other
+than by reason of death or Disability) of a Participant whose vested percentage
+in his Retirement Benefit is zero percent. 1.36 Normal Retirement: Termination
+of Employment of a Participant at Normal Retirement Age. 1.37 Normal Retirement
+Age: Age 65. I-8
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens017.jpg]
+1.38 Normal Retirement Date: The last day of the payroll period of the Employer
+coinciding with or next following the date on which the Participant attains age
+65. 1.39 One Year Break in Service: Any period of twelve consecutive months,
+beginning with the date of an Employee's Employment or any anniversary of the
+date of such Employment, during which the Employee has not completed more than
+500 Hours of Service; except that effective January 1, 1985, for absences
+beginning on or after January 1, 1985, a Participant who is absent from work due
+to such Participant's pregnancy, the birth of the Participant's child or by
+reason of the adoption of a minor child by the Participant for the purpose of
+caring for such child immediately following its birth or adoption and who
+provides timely information establishing to the satisfaction of the
+Administrator the reasons for the absence and the number of days of such absence
+will be treated as performing a normal schedule (or eight hours per day) up to a
+maximum of 501 Hours of Service in either the year in which the absence begins
+or the year immediately following the year in which the absence begins as
+necessary to prevent such Participant from incurring a One Year Break in Service
+in either (but not both) the year in which the absence begins or the year
+immediately following the year in which the absence begins. 1.40 Participant: An
+Employee who has commenced, but not terminated, participation in the Plan as
+provided in Article II. 1.41 Participating Affiliates: Any Affiliate which in
+accordance with Section 13.8 by duly authorized action has adopted the Plan and
+not withdrawn therefrom. 1.42 Plan: The Globe Life Inc. Pension Plan (formerly
+known as The Torchmark Corporation Pension Plan). 1.43 Plan Year: Each twelve
+consecutive month period ending on December 31, during any part of which the
+Plan is in effect. 1.44 Qualified Joint and Survivor Annuity: An annuity for the
+life of the Participant with a survivor annuity continuing after the
+Participant's death to the Participant's Surviving Spouse for the Surviving
+Spouse's life in an amount which is equal to 50% of the amount payable during
+the joint lives of the Participant and such Surviving Spouse and which is the
+Actuarial Equivalent of the Participant's Retirement Benefit. 1.45 Qualified
+Plan: A Defined Contribution Plan or a Defined Benefit Plan which is qualified
+under Code § 401(a). 1.46 Qualified Pre-Retirement Survivor Annuity: The
+pre-retirement death benefit provided for in Section 7.1.1(2). 1.47 Retirement
+Benefit: The retirement benefit of a Participant calculated under Article III in
+the form of a single life annuity payable monthly commencing on Normal
+Retirement Date for the life of the Participant. 1.48 Schroder Plan: The
+Employee's Retirement Plan of Schroder Incorporated and Associated Companies.
+1.49 Social Security Offset Percentage: The percentage factor utilized in
+determining the social security offset for a Participant. This offset percentage
+is based on the Participant's Social I-9
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens018.jpg]
+Security Retirement Age and the age at which the Participant's benefits
+commence. The appropriate offset percentages are as follows: Benefit
+Commencement Age Social Security Retirement Age Age 65 Age 66 Age 67
+(Interpolate for months) 55 0.750% 0.688% 0.632% 56 0.750% 0.703% 0.645% 57
+0.750% 0.706% 0.662% 58 0.750% 0.708% 0.667% 59 0.750% 0.711% 0.671% 60 0.750%
+0.712% 0.675% 61 0.750% 0.682% 0.648% 62 0.750% 0.688% 0.625% 63 0.750% 0.692%
+0.635% 64 0.750% 0.696% 0.643% 65 0.750% 0.700% 0.650% 66 0.750% 0.750% 0.700%
+67 0.750% 0.750% 0.750% 1.50 Social Security Retirement Age: The earliest age at
+which a Participant is entitled to receive his full benefit under the Social
+Security Act. The appropriate Social Security Retirement Ages are as follows:
+Calendar Year of Birth Age of Social Security Retirement Age 1937 and Before Age
+65 1938 to 1954 Age 66 1955 and after Age 67 1.51 Special Average Earnings: The
+average of the Participant's annual Compensation for the three completed
+consecutive calendar year periods during his last five complete consecutive
+calendar years of Employment which yields the highest average, or if employed
+less than three complete consecutive calendar years the amount obtained by
+converting his Compensation for the most recent period of Employment to an
+annual rate, where Compensation considered for any year cannot exceed the Social
+Security contribution and benefits base under § 230 of the Social Security Act
+for that year. Notwithstanding the above, Special Average Earnings will not
+exceed the Participant's Covered Compensation. 1.52 Spouse: The person lawfully
+married to a Participant. "Lawfully married" means the marriage occurred in a
+jurisdiction that recognized the marriage as legal. 1.53 Surviving Spouse: The
+Spouse of a Participant on the earlier of: (a) The date of the Participant's
+death; or I-10
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens019.jpg]
+(b) The Participant's Benefit Commencement Date. 1.54 Trust or Trust Fund: The
+trust established under the Plan in which Plan assets are held. 1.55 Trust
+Agreement: The agreement between the Company and the Trustee with respect to the
+Trust fund. 1.56 Trustee: The trustee appointed pursuant to Article X, and any
+successor trustee. 1.57 Vested Separation: Termination of Employment of a
+Participant for any reason other than Disability before he is eligible for Early
+Retirement, with a vested percentage in his Retirement Benefit. 1.58 Vesting
+Service: The Years of Service credited to a Participant under Section 4.2 for
+purposes of determining the Participant's vested percentage in his Retirement
+Benefit. 1.59 Year of Service: (a) For purposes of determining eligibility to
+participate under Article II and for purposes of determining Vesting Service,
+for Employment, or return to Employment after a One Year Break in Service,
+beginning in 1975 or later years, a period of 12 consecutive months beginning
+with the date of Employment or return to Employment during which an Employee has
+not less than 1,000 Hours of Service for an Employer (or (i) for an Affiliate in
+the case of an Employee who has transferred his Employment to the Employer from
+such Affiliate, and (ii) with respect to a person who became a Participant on
+January 1, 1985 and who on December 31, 1984 was employed by Schroder Energy
+Advisors, for Schroder Energy Advisors or any other participating employer in
+the Schroder Plan in employment covered by the Schroder Plan). (b) For purposes
+of determining Credited Service, for Employment, or return to Employment after a
+One Year Break in Service, beginning in 1975 or later years, a period of 12
+consecutive months beginning with the date of Employment or return to Employment
+during which an Employee has not less than 2,000 Hours of Service for an
+Employer in Employment covered by the Plan (or (i) for an Affiliate in
+employment covered by such Affiliate's Comparable Plan in the case of an
+Employee who has transferred his Employment to the Employer from such Affiliate,
+and (ii) with respect to a person who became a Participant on January 1, 1985
+and who on December 31, 1984 was employed by Schroder Energy Advisors, for
+Schroder Energy Advisors or any other participating employer in the Schroder
+Plan in employment covered by the Schroder Plan). An Employee who completes at
+least 1,000 Hours of Service but less than 2,000 Hours of Service in a
+computation period shall be credited with a fraction of a Year of Service for
+such period, determined by dividing his Hours of Service in such period by
+2,000. (c) With respect to a Liberty National Commissioned Participant or a
+Liberty National Non-Commissioned Participant, the following shall also apply
+for purposes of determining eligibility to participate under Article II and for
+purposes of determining Vesting Service: (i) All references to Schroder Energy
+Advisors shall not apply; (ii) For Employment which began before 1975, with
+respect to periods before the 1975 anniversary of such Employment, an aggregate
+of 52 weeks during each of which an Employee was employed on a permanent basis
+for at least 35 hours a week by an Employer (or by an I-11
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens020.jpg]
+Affiliate in the case of an Employee who has transferred his Employment to the
+Employer from such Affiliate); (iii) For Employment which began before 1975,
+with respect to periods after the 1975 anniversary of such Employment, a period
+of 12 consecutive months beginning with the date of such anniversary in 1975 or
+later years during which an Employee has not less than 1,000 Hours of Service
+for an Employer (or an Affiliate in the case of an Employee who has transferred
+his Employment to the Employer from such Affiliate); and (iv) For Employees who
+are former employees of Peninsular Life Insurance Company and whose employment
+with Liberty National Life Insurance Company began on May 20, 1985 as a result
+of the acquisition by Liberty National Life Insurance Company of the Home
+Service Division of Peninsular Life Insurance Company, a period of twelve
+consecutive months beginning with the date of employment or return to employment
+with Peninsular Life Insurance Company during which such individuals had not
+less than 1,000 Hours of Service with either or both Peninsular Life Insurance
+Company and Liberty National Life Insurance Company. (d) With respect to a
+Liberty National Commissioned Participant or a Liberty National Non-Commissioned
+Participant, the following shall also apply for purposes of determining Credited
+Service: (i) All references to Schroder Energy Advisors shall not apply; (ii)
+For Employment which began before 1975, with respect to periods before the 1975
+anniversary of such Employment, an aggregate of 52 weeks during each of which an
+Employee was employed in Employment covered by the Plan on a permanent basis for
+at least 35 hours a week by an Employer (or by an Affiliate in employment
+covered by such Affiliate's Comparable Plan in the case of an Employee who has
+transferred his Employment to the Employer from such Affiliate); (iii) For
+Employment which began before 1975 with respect to periods after the 1975
+anniversary of such Employment, a period of 12 consecutive months beginning with
+the date of such anniversary in 1975 or later years during which an Employee has
+not less than 2,000 Hours of Service in Employment covered by the Plan for an
+Employer (or for an Affiliate in employment covered by such Affiliate's
+Comparable Plan in the case of an Employee who has transferred his Employment to
+the Employer from such Affiliate); (iv) For Employees who are former employees
+of Peninsular Life Insurance Company and whose Employment with Liberty National
+Life Insurance Company began on May 20, 1985 as a result of the acquisition by
+Liberty National Life Insurance Company of the Home Service Division of
+Peninsular Life Insurance Company and who are employed by Liberty National Life
+Insurance Company for the period beginning on May 20, 1985 and ending on a date
+which is no earlier than May 20, 1988, a period of 12 consecutive months
+beginning with the date of employment or return to employment with Peninsular
+Life Insurance Company during which such individuals had not less than 2,000
+Hours of Service with either or both Peninsular Life Insurance Company and
+Liberty National Life Insurance Company; and (v) For purposes of Section
+1.59(d)(iii), an Employee who completes at least 1,000 Hours of Service but less
+than 2,000 Hours of Service in a computation period shall be I-12
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens021.jpg]
+credited with a fraction of a Year of Service for such period, determined by
+dividing his Hours of Service in such period by 2,000. I-13
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens022.jpg]
+ARTICLE II PARTICIPATION 2.1 Admission as a Participant An Eligible Employee
+shall become a Participant on the first day of the payroll period next following
+the later of his completion of one Year of Service or his attainment of age 21.
+An Employee who did not become a Participant on the Entry Date next following
+the date on which he met the eligibility requirements of Section 2.1.1 because
+he was not then an Eligible Employee shall become a Participant as of the first
+day on which he becomes an Eligible Employee. If an Employee has not completed
+1,000 Hours of Service for the Employer by the anniversary of his Employment,
+the next 12-month period for determining a Year of Service shall begin on the
+January 1 next following his date of Employment and thereafter any subsequent
+12-month period shall begin on the anniversary of his Employment.
+Notwithstanding any other provision of this Article II, an Employee who was an
+employee of an "Employer" or a "Participating Employer" in the Liberty National
+Pension Plan or the Liberty National Non-Commissioned Pension Plan (as those
+terms were therein defined) prior to January 1, 2004 and who was excluded from
+participation in those plans shall not be eligible to participate in the Plan.
+2.2 Reemployment An individual who has ceased to be a Participant and who again
+becomes an Eligible Employee shall become a Participant as of the first date on
+which he again becomes an Eligible Employee, unless he has had a One Year Break
+in Service. If an individual again becomes an Eligible Employee after a One Year
+Break in Service, he shall become a Participant upon completion of one Year of
+Service retroactive to a date which is not later than the date he again became
+an Eligible Employee. 2.3 Termination of Participation A Participant shall cease
+to be such: (a) Upon the payment to him of all nonforfeitable benefits due to
+him under the Plan at a time when he is no longer eligible for any future
+benefit accrual; (b) Upon his Non-Vested Separation; (c) Upon his death; or (d)
+Upon the transfer of his Accrued Benefit to another Qualified Plan. II-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens023.jpg]
+ARTICLE III RETIREMENT BENEFIT 3.1 Retirement Benefit Formula A Participant's
+monthly Retirement Benefit shall be an amount equal to 1/12 of the excess of (a)
+over the sum of (b) and (c) below, where: (a) Is 1% of the Participant's Final
+Average Compensation for each year of Credited Service up to 40 years plus 2% of
+the Participant's Final Average Compensation (not to exceed 40%) for each year
+of Credited Service after the Participant's attainment of age 45; (b) Is the
+social security offset which is equal to the smaller of: (i) 50% of the basic
+benefit calculated above in paragraph (a), but substituting Special Average
+Earnings for Final Average Compensation in the formula; or (ii) The Social
+Security Offset Percentage times the Participant's Special Average Earnings
+times each year of Credited Service not to exceed 35 years; (c) Is the
+Participant's annual retirement income (expressed in the form of a single life
+annuity commencing at Normal Retirement Date) under (i) the Comparable Plan of
+an Affiliate of the Employer or any corporation merged into the Employer or
+whose assets were acquired by the Employer, (ii) any non-comparable plan of such
+Affiliate to the extent that such benefit is an offset under any Comparable Plan
+of such Affiliate and (iii) for a person who became a Participant on January 1,
+1985 and who on December 31, 1984 was employed by Schroder Energy Advisors, the
+Schroder Plan; provided, however, that if (iv) the assets and liabilities from
+any plan referred to in this paragraph (c) have been transferred to the Plan
+pursuant to a trustee-to-trustee transfer of assets and liabilities, and (v),
+such transfer of assets and liabilities was made for the benefit of the
+Participant, the reduction in the monthly Retirement Benefit otherwise required
+by this paragraph (c) shall not apply. However, in no case shall the monthly
+Retirement Benefit for any Participant described in Article XIV be less than the
+monthly normal retirement benefit set forth in Article XIV. The amount of
+Retirement Benefit calculated under this Section 3.1 shall be subject to
+actuarial adjustment if it is payable in any other form of payment authorized by
+this Plan. The Retirement Benefit of a Participant who terminated Employment or
+incurred a Disability prior to the Effective Date shall be determined in
+accordance with the provisions of the Plan as in effect on the date of
+termination of Employment or Disability. The provisions of this Section 3.1
+shall not apply with respect to a Liberty National Commissioned Participant or a
+Liberty National Non-Commissioned Participant. 3.2 Rules for Determining Years
+of Credited Service Subject to Sections 3.2.2 through 3.2.7 below, Credited
+Service shall mean the sum of a Participant's Years of Service, expressed in
+full years and fractions thereof, except for the following: III-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens024.jpg]
+(a) Any period of Employment prior to the first anniversary of the Participant's
+Employment following his 20th birthday (or 24th birthday for years prior to
+January 1, 1985); and (b) Any period of Employment in a classification in which
+the Participant does not qualify as an Eligible Employee. If an Employee is on
+an authorized unpaid leave of absence granted by his Employer, his period of
+absence shall be counted as Credited Service upon his return to active
+Employment only if his Employer determines in writing, in accordance with
+standard personnel policies applied in a non-discriminatory manner to all
+Employees similarly situated, that such absence furthers the interest of the
+Employer. If an Employee is on an authorized military leave while his
+reemployment rights are protected by law and provided that he directly entered
+military service from his Employer's service and shall not have voluntarily
+reenlisted after the date of first entering active military service, his period
+of absence shall be counted as Credited Service upon his return to active
+Employment. If an Employee is on an authorized leave of absence on account of
+Disability, he shall continue to receive Credited Service from the date of
+Disability until the earlier of: (i) his Early Retirement Date; (ii) his Normal
+Retirement Date; or (iii) his recovery from Disability. An Employee who
+terminates Employment with no vested percentage in his Retirement Benefit shall,
+if he returns to Employment, have no credit for Credited Service prior to such
+termination of Employment if (i) for years prior to January 1, 1985, the total
+of his consecutive One Year Breaks in Service immediately preceding his
+reemployment exceed his aggregate years of Vesting Service (whether or not
+consecutive, but excluding Vesting Service previously disregarded under Section
+4.2.4) prior to the termination; or (ii) for years on or after January 1, 1985,
+the total of his consecutive One Year Breaks in Service immediately preceding
+his reemployment exceed the greater of five years or his aggregate years of
+Vesting Service (whether or not consecutive, but excluding Vesting Service
+previously disregarded under Section 4.2.4) prior to the termination. A
+Participant who had a Vested Separation and returns to Employment will retain
+credit for his prior years of Credited Service unless he received a distribution
+of his Accrued Retirement Benefit at the time of such Vested Separation. No
+Participant shall receive Credited Service during a period when such Participant
+is accruing benefits under another Defined Benefit Plan of the Employer or an
+Affiliate unless the Retirement Benefit under this Plan is reduced or offset by
+the full amount of benefits accrued by such Participant under such other Defined
+Benefit Plan; provided, however, that if (i) the assets and liabilities from
+such other Defined Benefit Plan have been transferred to the Plan pursuant to a
+trustee- to-trustee transfer of assets and liabilities, and (ii), such transfer
+of assets and liabilities was made for the benefit of the Participant, the
+reduction in the monthly Retirement Benefit otherwise required by this Section
+3.2.6 shall not apply. By appropriate corporate action exercised in a uniform
+and nondiscriminatory manner and, where applicable consented to by the Company,
+each Employer may grant Credited Service for any Employment with such Employer
+prior to the time it became an Employer. III-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens025.jpg]
+3.3 Retirement Benefit Formula with respect to a Liberty National
+Non-Commissioned Participant or a Liberty National Commissioned Participant
+Section 3.3.1 was amended effective January 1, 2012 to read as follows: A
+Participant's monthly Retirement Benefit shall be an amount equal to 1/12 of the
+excess of (a) over the sum of (b), (c) and (d) below, where: (a) Is 2% of the
+Participant's Final Average Compensation for each year of Credited Service up to
+30 years plus 1% of the Participant's Final Average Compensation for each year
+of Credited Service in excess of 30 years (not exceeding 10%); (b) Is the social
+security offset which is equal to the smaller of: (i) 50% of the basic benefit
+calculated above in paragraph (a), but substituting Special Average Earnings for
+Final Average Compensation in the formula; or (ii) The Social Security Offset
+Percentage times the Participant's Special Average Earnings times each year of
+Credited Service not to exceed 35 years; (c) Is the Participant's "Profit
+Sharing and Retirement Plan Annuity;" (d) Is the Participant's annual retirement
+income (expressed in the form of a single life annuity commencing at Normal
+Retirement Date) under the Comparable Plan or Plans of the Company or any
+affiliate of the Company or any other corporation merged into the Company, or
+whose assets were acquired by the Company. A "Profit Sharing and Retirement Plan
+Annuity" shall mean the annual single life annuity, without death benefit, which
+can be provided by that portion of the Participant's account under the Profit
+Sharing and Retirement Plan attributable to the Company contributions and
+earnings thereon. Effective March 28, 2011, the Profit Sharing and Retirement
+Plan was merged into the Globe Life Inc. Savings and Investment Plan (formerly,
+the “Torchmark Corporation Savings and Investment Plan”) and thereafter the
+Profit Sharing and Retirement Plan account is maintained under the Globe Life
+Inc. Savings and Investment Plan . In determining the amount attributable to the
+Company contributions and earnings thereon for this purpose no deduction shall
+be made for the amount of any loans outstanding. There shall be added to the
+amount attributable to Company contributions and earnings thereon: (1) The
+amount of any withdrawal(s) by, and prior distribution(s) to, the Participant to
+the extent such withdrawals and prior distributions exceed the amount of the
+Participant's contributions and earnings thereon; and (2) The amount of the
+earnings of the Plan which would have been allocated to the amount(s) described
+in the preceding paragraph (1) from the date of such withdrawals or
+distributions. A Participant's Profit Sharing and Retirement Plan Annuity shall
+be calculated as of his termination of Employment, based upon the Participant's
+attained age and the Company's rate basis for annuities purchasable under the
+Profit Sharing and Retirement Plan on such date. A Participant's Profit Sharing
+and Retirement Plan Annuity may be calculated on either an immediate or III-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens026.jpg]
+deferred basis as indicated in the context of this Plan, but, in any case, one
+shall be the Actuarial Equivalent of the other. Notwithstanding Section 3.3.1,
+for Participants who were participating in the Liberty National Pension Plan on
+April 5, 1982, the monthly Retirement Benefit of any such Participant retiring
+after April 5, 1982, shall not be less than 1/12 of (a) or (b) below, whichever
+is greater, where: (a) Is (i) plus (ii) less (iii), where: (i) Applies only to
+Participants with less than 30 years of Credited Service on the anniversary of
+employment preceding April 5, 1982, and is 1/12 of 2% times the Final Average
+Compensation times the number of complete months of service for benefit accrual
+purposes from March 6, 1982, through the earlier of the 30th year of Credited
+Service or the date of termination of Employment; (ii) Is 1/12 of 1% times the
+Final Average Compensation times the number of complete months of service for
+benefit accrual purposes from March 6, 1982, or from the 30th year of Credited
+Service, if later, through the earlier of the date of termination of Employment
+or the 40th year of Credited Service for benefit accrual purposes; (iii) Applies
+only to Participants with less than 35 years of Credited Service on the
+anniversary of Employment immediately preceding April 5, 1982, and is the lesser
+of (x) 1/12 of the Social Security Offset Percentage times the Participant's
+Special Average Earnings times the number of complete months of service for
+benefit accrual purposes from March 6, 1982, through the earlier of the 35th
+year of Credited Service for benefit accrual purposes, or the date of
+termination of Employment or (y) 50% of the sum in the amounts in (a)(i) plus
+(a)(ii) but substituting Special Average Earnings for Final Average Compensation
+in those formulas. (b) Is (i) plus (ii) less (iii), where: (i) Is 1/12 of 2%
+times the Final Average Compensation times the number of complete months of
+service for benefit accrual purposes from April 5, 1982, through the earlier of
+April 4, 1987 or the date of termination of Employment; (ii) Is 1/12 of 1.5%
+times the Final Average Compensation times the number of complete months of
+service for benefit accrual purposes from April 5, 1987, through the earlier of
+April 4, 1992 or the date of termination of Employment; (iii) Is the amount
+calculated above in paragraph (a)(iii). Any benefit provided under this Section
+shall be based solely on Credited Service for benefit accrual purposes for an
+Employer participating in the Liberty National Pension Plan or the Liberty
+National Non-Commissioned Plan prior to January 1, 2004. The amount of
+Retirement Benefit calculated under this Section shall be subject to actuarial
+adjustment if it is payable in any other form of payment authorized by this
+Plan. The Retirement Benefit of a Liberty National Commissioned Participant or a
+Liberty National Non-Commissioned Participant who terminated Employment or
+incurred a Disability prior to January 1, 2004 shall be determined in accordance
+with the provisions of, respectively, the III-4
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens027.jpg]
+Liberty National Pension Plan or the Liberty National Non-Commissioned Pension
+Plan as in effect on the date of termination of Employment or Disability. 3.4
+Limitation on Benefits Notwithstanding any other provisions of the Plan, a
+Participant's Accrued Retirement Benefit shall not exceed the limitations of
+Code § 415 which are hereby incorporated by reference, except to the extent the
+limitations are specifically addressed below. Effect on Participants. Benefit
+increases resulting from the increase in the limitations of Code § 415 will be
+provided to all Employees participating in the Plan who have one Hour of Service
+on or after the first day of the first limitation year ending after December 31,
+2001. 415 Compensation paid after "Severance from Employment." 415 Compensation
+shall be adjusted, as set forth herein, for the following types of compensation
+paid after a Participant's "Severance from Employment" with the Employer
+maintaining the Plan (or any other entity that is treated as the Employer
+pursuant to Code § § 414(b), (c), (m) or (o)). However, amounts described in
+Sections 3.4.3(a), (b) and (c) below may only be included in 415 Compensation to
+the extent such amounts are paid by the later of 2 '/2 months after "Severance
+from Employment" or by the end of the "Limitation Year" that includes the date
+of such "Severance from Employment." Any other payment of compensation paid
+after "Severance from Employment" that is not described in the following types
+of compensation is not considered 415 Compensation within the meaning of Code §
+415(c)(3), even if payment is made within the time period specified above. (a)
+Regular pay. 415 Compensation shall include regular pay after "Severance from
+Employment" if: (1) The payment is regular compensation for services during the
+Participant's regular working hours, or compensation for services outside the
+Participant's regular working hours (such as overtime or shift differential),
+commissions, bonuses, or other similar payments; and (2) The payment would have
+been paid to the Participant prior to a "Severance from Employment" if the
+Participant had continued in employment with the Employer. (b) Leave cashouts.
+Leave cashouts shall not be included in 415 Compensation. Leave cashouts are
+amounts in payment for unused accrued bona fide sick, vacation, or other leave.
+(c) Deferred Compensation. 415 Compensation will not include deferred
+compensation received pursuant to a nonqualified unfunded deferred compensation
+plan. (d) Salary continuation payments for military service Participants. 415
+Compensation does not include payments to an individual who does not currently
+perform services for the Employer by reason of qualified military service (as
+that term is used in Code § 414(u)(1)) to the extent those payments do not
+exceed the amounts the individual would have received if the individual had
+continued to perform services for the Employer rather than entering qualified
+military service. III-5
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens028.jpg]
+(e) Salary continuation payments for disabled Participants. 415 Compensation
+does not include compensation paid to a Participant who is permanently and
+totally disabled (as defined in Code § 22(e)(3)). Administrative delay ("the
+first few weeks") rule. 415 Compensation for a "Limitation Year" shall not
+include amounts earned but not paid during the "Limitation Year" solely because
+of the timing of pay periods and pay dates." Inclusion of certain nonqualified
+deferred compensation amounts. If the Plan's definition of Compensation for
+purposes of Code § 415 is the definition in Regulation § 1.415(c)-2(b) and the
+simplified compensation definition of Regulation § 1.415(c) 2(d)(2) is not used,
+then 415 Compensation shall include amounts that are includible in the gross
+income of a Participant under the rules of Code § 409A or Code § 457(f)(1)(A) or
+because the amounts are constructively received by the Participant. Back Pay.
+Payments awarded by an administrative agency or court or pursuant to a bona fide
+agreement by an Employer to compensate an Employee for lost wages are 415
+Compensation for the "Limitation Year" to which the back pay relates, but only
+to the extent such payments represent wages and compensation that would
+otherwise be included in 415 Compensation under this Section 3.4. “Annual
+Benefit.” The "Annual Benefit" otherwise payable to a Participant under the Plan
+at any time shall not exceed the "Maximum Permissible Benefit." If the benefit
+the Participant would otherwise accrue in a "Limitation Year" would produce an
+"Annual Benefit" in excess of the "Maximum Permissible Benefit," then the
+benefit shall be limited (or the rate of accrual reduced) to a benefit that does
+not exceed the "Maximum Permissible Benefit." Adjustment if in two Defined
+Benefit Plans. If the Participant is, or has ever been, a Participant in another
+qualified Defined Benefit Plan (without regard to whether the plan has been
+terminated) maintained by the Employer or a "Predecessor Employer," the sum of
+the Participant's "Annual Benefits" from all such plans may not exceed the
+"Maximum Permissible Benefit." Where the Participant's employer-provided
+benefits under all such defined benefit plans (determined as of the same age)
+would exceed the "Maximum Permissible Benefit" applicable at that age, the
+Employer shall limit a Participant's benefit in accordance with the terms of the
+Plans. Grandfather of limits prior to January 1, 2008. The application of the
+provisions of this Section 3.4 shall not cause the "Maximum Permissible Benefit"
+for any Participant to be less than the Participant's accrued benefit under all
+the Defined Benefit Plans of the Employer or a "Predecessor Employer" as of
+December 31, 2007 under provisions of the plans that were both adopted and in
+effect before April 5, 2007. The preceding sentence applies only if the
+provisions of such Defined Benefit Plans that were both adopted and in effect
+before April 5, 2007, satisfied the applicable requirements of statutory
+provisions, Regulations, and other published guidance relating to Code § 415 in
+effect as of December 31, 2007, as described in Regulations § 1.415(a)-1(g)(4).
+Other rules applicable. The limitations of Section 3.4.7 through 3.4.9 shall be
+determined and applied taking into account the rules in Section 3.4.12 hereof.
+Definitions. For purposes of Sections 3.4.3 through 3.4.12, the following
+definitions apply. III-6
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens029.jpg]
+(a) Annual Benefit. "Annual Benefit" means a benefit that is payable annually in
+the form of a "Straight Life Annuity." Except as provided below, where a benefit
+is payable in a form other than a "Straight Life Annuity," the benefit shall be
+adjusted to an actuarially equivalent "Straight Life Annuity" that begins at the
+same time as such other form of benefit and is payable on the first day of each
+month, before applying the limitations of Section 3.4. For a Participant who has
+or will have distributions commencing at more than one annuity starting date,
+the "Annual Benefit" shall be determined as of each such annuity starting date
+(and shall satisfy the limitations of Section 3.4 as of each such date),
+actuarially adjusting for past and future distributions of benefits commencing
+at the other annuity starting dates. For this purpose, the determination of
+whether a new annuity starting date has occurred shall be made without regard to
+Regulations § 1.401(a)-20, Q&A 10(d), and with regard to Regulations §
+1.415(b)1(b)(1)(iii)(B) and (C). No actuarial adjustment to the benefit shall be
+made for (i) survivor benefits payable to a Surviving Spouse under a Qualified
+Joint and Survivor Annuity to the extent such benefits would not be payable if
+the Participant's benefit were paid in another form; (ii) benefits that are not
+directly related to retirement benefits (such as a qualified Disability benefit,
+preretirement incidental death benefits, and postretirement medical benefits);
+or (iii) the inclusion in the form of benefit of an automatic benefit increase
+feature, provided the form of benefit is not subject to Code § 417(e)(3) and
+would otherwise satisfy the limitations of Section 3.4, and the Plan provides
+that the amount payable under the form of benefit in any "Limitation Year" shall
+not exceed the limits of Section 3.4 applicable at the annuity starting date, as
+increased in subsequent years pursuant to Code § 415(d). For this purpose, an
+automatic benefit increase feature is included in a form of benefit if the form
+of benefit provides for automatic, periodic increases to the benefits paid in
+that form. The determination of the "Annual Benefit" shall take into account
+Social Security supplements described in Code § 411(a)(9) and benefits
+transferred from another defined benefit plan, other than transfers of
+distributable benefits pursuant Regulations § 1.411(d)-4, Q&A- 3(c), but shall
+disregard benefits attributable to Employee contributions or rollover
+contributions. The determination of actuarial equivalence of forms of benefit
+other than a "Straight Life Annuity" shall be made in accordance with (1) or (2)
+below. (1) Benefit forms not subject to Code § 417(e)(3). The "Straight Life
+Annuity" that is actuarially equivalent to the Participant's form of benefit
+shall be determined under this Section 3.4.11(a)(1) if the form of the
+Participant's benefit is either (I) a nondecreasing annuity (other than a
+"Straight Life Annuity") payable for a period of not less than the life of the
+Participant (or, in the case of a Qualified Pre-Retirement Survivor Annuity, the
+life of the Surviving Spouse), or (II) an annuity that decreases during the life
+of the Participant merely because of (A) the death of the survivor annuitant
+(but only if the reduction is not below 50% of the benefit payable before the
+death of the survivor annuitant), or (B) the cessation or reduction of Social
+Security supplements or qualified disability payments (as defined in Code §
+401(a)(11)). The actuarially equivalent "Straight Life Annuity" is equal to the
+greater of (C) the annual amount of the "Straight Life Annuity" (if any) payable
+to the Participant under the Plan commencing at the same annuity starting date
+as the Participant's form of benefit; and (D) the annual amount of the "Straight
+Life Annuity" commencing at the same annuity starting date that has the same
+actuarial present value as the Participant's form of benefit, computed using a
+5% interest rate assumption and the applicable mortality table defined in the
+Plan for that annuity starting date. III-7
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens030.jpg]
+(2) Benefit Forms Subject to Code § 417(e)(3). The "Straight Life Annuity" that
+is actuarially equivalent to the Participant's form of benefit shall be
+determined under this Section 3.4.11(a)(2) if the form of the Participant's
+benefit is other than a benefit form described in Section 3.4.11(a)(1) above. In
+this case, the actuarially equivalent "Straight Life Annuity" is equal to the
+greatest of (I) the annual amount of the "Straight Life Annuity" commencing at
+the same annuity starting date that has the same actuarial present value as the
+Participant's form of benefit, computed using the interest rate and mortality
+table (or other tabular factor) specified in the Plan for adjusting benefits in
+the same form; (II) the annual amount of the "Straight Life Annuity" commencing
+at the same annuity starting date that has the same actuarial present value as
+the Participant's form of benefit, computed using a 5.5 percent interest rate
+assumption and the applicable mortality table defined in the Plan; and (III) the
+annual amount of the "Straight Life Annuity" commencing at the same annuity
+starting date that has the same actuarial present value as the Participant's
+form of benefit, computed using the applicable interest rate and applicable
+mortality table defined in the Plan, divided by 1.05. (b) Defined Benefit
+Compensation Limitation. "Defined Benefit Compensation Limitation" means 100% of
+a Participant's "High Three-Year Average Compensation," payable in the form of a
+"Straight Life Annuity." In the case of a Participant who has had a "Severance
+from Employment" with the Employer, the "Defined Benefit Compensation
+Limitation" applicable to the Participant in any "Limitation Year" beginning
+after the date of severance shall be automatically adjusted by multiplying the
+limitation applicable to the Participant in the prior "Limitation Year" by the
+annual adjustment factor under Code § 415(d) that is published in the Internal
+Revenue Bulletin. The adjusted compensation limit shall apply to "Limitation
+Years" ending with or within the calendar year of the date of the adjustment,
+but a Participant's benefits shall not reflect the adjusted limit prior to
+January 1 of that calendar year. In the case of a Participant who is rehired
+after a "Severance from Employment," the "Defined Benefit Compensation
+Limitation" is the greater of 100% of the Participant's "High Three-Year Average
+Compensation," as determined prior to the "Severance from Employment," as
+adjusted pursuant to the preceding paragraph, if applicable; or 100% of the
+Participant's "High Three-Year Average Compensation," as determined after the
+"Severance from Employment." (c) Defined Benefit Dollar Limitation. "Defined
+Benefit Dollar Limitation" means $160,000, automatically adjusted under Code §
+415(d), effective January 1 of each year, as published in the Internal Revenue
+Bulletin, and payable in the form of a "Straight Life Annuity." The new
+limitation shall apply to "Limitation Years" ending with or within the calendar
+year of the date of the adjustment, but a Participant's benefits shall not
+reflect the adjusted limit prior to January 1 of that calendar year. The
+automatic annual adjustment of the "Defined Benefit Dollar Limitation" under
+Code 415(d) shall not apply to Participants who have had a "Severance from
+Employment." (d) Employer. "Employer" means, for purposes of this Section 3.4,
+the Employer that has adopted the Plan, and all members of a controlled group of
+corporations (as defined in Code § 414(b), as modified by Code § 415(h)), all
+commonly controlled trades or businesses (as defined in Code § 414(c), as
+modified, except in the case of a brother-sister group of trades or businesses
+under common control, by Code § 415(h)), or affiliated service groups (as
+defined in Code § 414(m)) of which the adopting Employer is a part, and any
+other entity required to be aggregated with the Employer pursuant to Code §
+414(o). III-8
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens031.jpg]
+(e) Formerly Affiliated Plan of the Employer. "Formerly Affiliated Plan of the
+Employer" means a plan that, immediately prior to the cessation of affiliation,
+was actually maintained by the Employer and, immediately after the cessation of
+affiliation, is not actually maintained by the Employer. For this purpose,
+"cessation of affiliation" means the event that (i) causes an entity to no
+longer be considered the Employer, such as the sale of a member of a controlled
+group of corporations, as defined in Code § 414(b), as modified by Code §
+415(h), to an unrelated corporation, or (ii) causes a plan to not actually be
+maintained by the Employer, such as transfer of plan sponsorship outside a
+controlled group. (f) High Three-Year Average Compensation. "High Three-Year
+Average Compensation" means the average 415 Compensation for the three
+consecutive Years of Service (or, if the Participant has less than three
+consecutive Years of Service, the Participant's longest consecutive period of
+service, including fractions of years, but not less than one year) with the
+Employer that produces the highest average. A Participant's 415 Compensation for
+a Year of Service shall not include 415 Compensation in excess of the limitation
+under Code § 401(a)(17) that is in effect for the calendar year in which such
+Year of Service begins. For purposes of this definition, a Year of Service with
+the Employer is the 12-consecutive month period defined in the Plan which is
+used to determine 415 Compensation under the Plan. In the case of a Participant
+who is rehired by the Employer after a "Severance from Employment," the
+Participant's "High Three-Year Average Compensation" shall be calculated by
+excluding all years for which the Participant performs no services for and
+receives no 415 Compensation from the Employer (the break period) and by
+treating the years immediately preceding and following the break period as
+consecutive. (g) Limitation Year. "Limitation Year" means the Plan Year. The
+"Limitation Year" may only be changed by a Plan amendment. Furthermore, if the
+Plan is terminated effective as of a date other than the last day of the Plan's
+"Limitation Year," then the Plan is treated as if the Plan had been amended to
+change its "Limitation Year." (h) Maximum Permissible Benefit. "Maximum
+Permissible Benefit" means the lesser of the "Defined Benefit Dollar Limitation"
+or the "Defined Benefit Compensation Limitation" (both adjusted where required,
+as provided below). (i) Adjustment for Less Than 10 Years of Participation or
+Service. If the Participant has less than 10 years of participation in the Plan,
+the "Defined Benefit Dollar Limitation" shall be multiplied by a fraction — (1)
+the numerator of which is the number of "Years of Participation" in the Plan (or
+part thereof, but not less than one year), and (2) the denominator of which is
+10. In the case of a Participant who has less than ten Years of Service with the
+Employer, the "Defined Benefit Compensation Limitation" shall be multiplied by a
+fraction —(3) the numerator of which is the number of "Years of Service" with
+the Employer (or part thereof, but not less than one year), and (4) the
+denominator of which is 10. (ii) Adjustment of "Defined Benefit Dollar
+Limitation" for Benefit Commencement Before Age 62 or after Age 65. The "Defined
+Benefit Dollar Limitation" shall be adjusted if the annuity starting date of the
+Participant's benefit is before age 62 or after age 65. If the annuity starting
+date is before age 62, the "Defined Benefit Dollar Limitation" shall be adjusted
+under Section 3.4.11(h)(ii)(1), as modified by Section 3.4.11(h)(ii)(3). If the
+annuity starting date is after III-9
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens032.jpg]
+age 65, the "Defined Benefit Dollar Limitation" shall be adjusted under Section
+3.4.11(h)(ii)(2), as modified by Section 3.4.11(h)(ii)(3). (1) Adjustment of
+"Defined Benefit Dollar Limitation" for Benefit Commencement Before Age 62: (I)
+Plan Does Not Have Immediately Commencing "Straight Life Annuity" Payable at
+both Age 62 and the Age of Benefit Commencement. If the annuity starting date
+for the Participant's benefit is prior to age 62 and occurs in a "Limitation
+Year" beginning on or after January 1, 2008, and the Plan does not have an
+immediately commencing "Straight Life Annuity" payable at both age 62 and the
+age of benefit commencement, the "Defined Benefit Dollar Limitation" for the
+Participant's annuity starting date is the annual amount of a benefit payable in
+the form of a "Straight Life Annuity" commencing at the Participant's annuity
+starting date that is the actuarial equivalent of the "Defined Benefit Dollar
+Limitation" (adjusted under Section 3.4.11(h)(i) for years of participation less
+than 10, if required) with actuarial equivalence computed using a 5% interest
+rate assumption and the applicable mortality table for the annuity starting date
+as defined in the Plan (and expressing the Participant's age based on completed
+calendar months as of the annuity starting date). (II) Plan Has Immediately
+Commencing "Straight Life Annuity" Payable at both Age 62 and the Age of Benefit
+Commencement. If the annuity starting date for the Participant's benefit is
+prior to age 62 and the Plan has an immediately commencing "Straight Life
+Annuity" payable at both age 62 and the age of benefit commencement, the
+"Defined Benefit Dollar Limitation" for the Participant's annuity starting date
+is the lesser of the limitation determined under Section 3.4.11(h)(ii)(1)(I) and
+the "Defined Benefit Dollar Limitation" (adjusted under Section 3.4.11(h)(i) for
+years of participation less than 10, if required) multiplied by the ratio of the
+annual amount of the immediately commencing "Straight Life Annuity" under the
+Plan at the Participant's Annuity Starting Date to the annual amount of the
+immediately commencing "Straight Life Annuity" under the Plan at age 62, both
+determined without applying the limitations of Section 3.4. (2) Adjustment of
+"Defined Benefit Dollar Limitation" for Benefit Commencement After Age 65: (I)
+Plan Does Not Have Immediately Commencing "Straight Life Annuity" Payable at
+both Age 65 and the Age of Benefit Commencement. If the annuity starting date
+for the Participant's benefit is after age 65 and the Plan does not have an
+immediately commencing "Straight Life Annuity" payable at both age 65 and the
+age of benefit commencement, the "Defined Benefit Dollar Limitation" at the
+Participant's annuity starting date is the annual amount of a benefit payable in
+the form of a "Straight Life Annuity" commencing at the Participant's annuity
+starting date that is the actuarial equivalent of the "Defined Benefit Dollar
+Limitation" (adjusted under Section 3.4.11(h)(i) for years of participation less
+than 10, if required), with actuarial equivalence computed using a 5% interest
+rate assumption and the applicable mortality table for that annuity starting
+date as defined in the Plan (and expressing the Participant's age based on
+completed calendar months as of the annuity starting date). (II) Plan Has
+Immediately Commencing "Straight Life Annuity" Payable at both Age 65 and the
+Age of Benefit Commencement. If the annuity starting date for the Participant's
+benefit is after age 65 and the Plan has an immediately commencing "Straight
+Life Annuity" payable at both age 65 and the age of benefit commencement, the
+"Defined Benefit III-10
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens033.jpg]
+Dollar Limitation" at the Participant's annuity starting date is the lesser of
+the limitation determined under Section 3.4.11(h)(ii)(2)(I) and the "Defined
+Benefit Dollar Limitation" (adjusted under Section 3.4.11(h)(i) for years of
+participation less than 10, if required) multiplied by the ratio of the annual
+amount of the adjusted immediately commencing "Straight Life Annuity" under the
+Plan at the Participant's annuity starting date to the annual amount of the
+adjusted immediately commencing "Straight Life Annuity" under the Plan at age
+65, both determined without applying the limitations of this Section 3.4. For
+this purpose, the adjusted immediately commencing "Straight Life Annuity" under
+the Plan at the Participant's annuity starting date is the annual amount of such
+annuity payable to the Participant, computed disregarding the Participant's
+accruals after age 65 but including actuarial adjustments even if those
+actuarial adjustments are used to offset accruals; and the adjusted immediately
+commencing "Straight Life Annuity" under the Plan at age 65 is the annual amount
+of such annuity that would be payable under the Plan to a hypothetical
+Participant who is age 65 and has the same accrued benefit as the Participant.
+(3) Notwithstanding the other requirements of this Section 3.4.11(h)(ii), in
+adjusting the "Defined Benefit Dollar Limitation" for the Participant's annuity
+starting date except for Sections 3.4.11(h)(ii)(1)(I) or 3.4.11(h)(ii)(3)(I), no
+adjustment shall be made to reflect the probability of a Participant's death
+between the annuity starting fate and age 62, or between age 65 and the annuity
+starting date, as applicable, if benefits are not forfeited upon the death of
+the Participant prior to the annuity starting date. To the extent benefits are
+forfeited upon death before the annuity starting date, such an adjustment shall
+be made. For this purpose, no forfeiture shall be treated as occurring upon the
+Participant's death if the Plan does not charge Participants for providing a
+qualified pre-retirement survivor annuity, as defined in Code § 417(c), upon the
+Participant's death. (iii) Minimum benefit permitted. Notwithstanding anything
+else in this Section to the contrary, the benefit otherwise accrued or payable
+to a Participant under this Plan shall be deemed not to exceed the "Maximum
+Permissible Benefit" if: (1) The retirement benefits payable for a "Limitation
+Year" under any form of benefit with respect to such Participant under this Plan
+and under all other defined benefit plans (without regard to whether a plan has
+been terminated) ever maintained by the Employer do not exceed $10,000
+multiplied by a fraction — (I) the numerator of which is the Participant's
+number of Years (or part thereof, but not less than one year) of Service (not to
+exceed 10) with the Employer, and (II) the denominator of which is 10; and (2)
+The Employer (or a "Predecessor Employer") has not at any time maintained a
+defined contribution plan in which the Participant participated (for this
+purpose, mandatory Employee contributions under a Defined Benefit Plan,
+individual medical accounts under Code § 401(h), and accounts for
+post-retirement medical benefits established under Code § 419A(d)(1) are not
+considered a separate defined contribution plan). (i) Predecessor Employer.
+"Predecessor Employer" means, with respect to a Participant, a former employer
+of such Participant if the Employer maintains a Plan that provides a benefit
+which the Participant accrued while performing services for the former employer.
+A former entity that antedates the Employer is also a "Predecessor Employer"
+with respect to a Participant if, under the facts and circumstances, the
+Employer constitutes a continuation of all or a portion of the trade or business
+of the former entity. For this purpose, the formerly affiliated plan rules in
+Regulations § 1.415(f) 1(b)(2) apply as if the Employer and "Predecessor
+Employer" constituted a single employer under the rules described in Regulations
+§ 1.415(a) 1(f)(1) and (2) immediately prior to the cessation III-11
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens034.jpg]
+of affiliation (and as if they constituted two, unrelated employers under the
+rules described in Regulations § 1.415(a) l(f)(1) and (2) immediately after the
+cessation of affiliation) and cessation of affiliation was the event that gives
+rise to the "Predecessor Employer" relationship, such as a transfer of benefits
+or plan sponsorship. (j) Severance from Employment. "Severance from Employment"
+means, with respect to any individual, cessation from being an Employee of the
+Employer maintaining the Plan. An Employee does not have a "Severance from
+Employment" if, in connection with a change of employment, the Employee's new
+employer maintains the Plan with respect to the Employee. (k) Straight Life
+Annuity. "Straight Life Annuity" means an annuity payable in equal installments
+for the life of a Participant that terminates upon the Participant's death. (1)
+Year of Participation. "Year of Participation" means, with respect to a
+Participant, each accrual computation period (computed to fractional parts of a
+year) for which the following conditions are met: (i) the Participant is
+credited with at least the number of Hours of Service for benefit accrual
+purposes, required under the terms of the Plan in order to accrue a benefit for
+the accrual computation period, and (ii) the Participant is included as a
+Participant under the eligibility provisions of the Plan for at least one day of
+the accrual computation period. If these two conditions are met, the portion of
+a "Year of Participation" credited to the Participant shall equal the amount of
+benefit accrual service credited to the Participant for such accrual computation
+period. A Participant who is permanently and totally disabled within the meaning
+of Code § 415(c)(3)(C)(i) for an accrual computation period shall receive a
+"Year of Participation" with respect to that period. In addition, for a
+Participant to receive a "Year of Participation" (or part thereof) for an
+accrual computation period, the Plan must be established no later than the last
+day of such accrual computation period. In no event shall more than one "Year of
+Participation" be credited for any 12-month period. (m) Year of Service. "Year
+of Service" means, for purposes of Section 3.4.11(f), each accrual computation
+period (computed to fractional parts of a year) for which a Participant is
+credited with at least the number of Hours of Service for benefit accrual
+purposes, required under the terms of the Plan in order to accrue a benefit for
+the accrual computation period, taking into account only service with the
+Employer or a "Predecessor Employer." Other rules. (a) Benefits under terminated
+plans. If a defined benefit plan maintained by the Employer has terminated with
+sufficient assets for the payment of benefit liabilities of all Participants and
+a Participant in the Plan has not yet commenced benefits under the Plan, the
+benefits provided pursuant to the annuities purchased to provide the
+Participant's benefits under the terminated Plan at each possible annuity
+starting date shall be taken into account in applying the limitations of Section
+3.4. If there are not sufficient assets for the payment of all Participants'
+benefit liabilities, the benefits taken into account shall be the benefits that
+are actually provided to the Participant under the terminated Plan. (b) Benefits
+transferred from the Plan. If a Participant's benefits under a Defined Benefit
+Plan maintained by the Employer are transferred to another Defined Benefit Plan
+maintained by the Employer and the transfer is not a transfer of distributable
+benefits pursuant III-12
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens035.jpg]
+Regulations § 1.411(d)-4, Q&A-3(c), then the transferred benefits are not
+treated as being provided under the transferor plan (but are taken into account
+as benefits provided under the transferee plan). If a Participant's benefits
+under a Defined Benefit Plan maintained by the Employer are transferred to
+another defined benefit plan that is not maintained by the Employer and the
+transfer is not a transfer of distributable benefits pursuant to Regulations §
+1.411(d)-4, Q&A-3(c), then the transferred benefits are treated by the
+Employer's Plan as if such benefits were provided under annuities purchased to
+provide benefits under a plan maintained by the Employer that terminated
+immediately prior to the transfer with sufficient assets to pay all
+Participants' benefit liabilities under the plan. If a Participant's benefits
+under a Defined Benefit Plan maintained by the Employer are transferred to
+another defined benefit plan in a transfer of distributable benefits pursuant to
+Regulations § 1.411(d)-4, Q&A-3 (c), the amount transferred is treated as a
+benefit paid from the transferor plan. (c) Formerly affiliated plans of the
+Employer. A "Formerly Affiliated Plan of an Employer" shall be treated as a plan
+maintained by the Employer, but the formerly affiliated plan shall be treated as
+if it had terminated immediately prior to the cessation of affiliation with
+sufficient assets to pay Participants' benefit liabilities under the Plan and
+had purchased annuities to provide benefits. (d) Plans of a "Predecessor
+Employer." If the Employer maintains a Defined Benefit Plan that provides
+benefits accrued by a Participant while performing services for a "Predecessor
+Employer," then the Participant's benefits under a plan maintained by the
+"Predecessor Employer" shall be treated as provided under a plan maintained by
+the Employer. However, for this purpose, the plan of the "Predecessor Employer"
+shall be treated as if it had terminated immediately prior to the event giving
+rise to the "Predecessor Employer" relationship with sufficient assets to pay
+Participants' benefit liabilities under the plan, and had purchased annuities to
+provide benefits; the Employer and the "Predecessor Employer" shall be treated
+as if they were a single employer immediately prior to such event and as
+unrelated employers immediately after the event; and if the event giving rise to
+the predecessor relationship is a benefit transfer, the transferred benefits
+shall be excluded in determining the benefits provided under the plan of the
+"Predecessor Employer." (e) Special rules. The limitations of Section 3.4 shall
+be determined and applied taking into account the rules in Regulations §
+1.415(0-1(d), (e) and (h). (f) Aggregation with Multiemployer Plans. (i) If the
+Employer maintains a multiemployer plan, as defined in Code § 414(0, and the
+multiemployer plan so provides, only the benefits under the multiemployer plan
+that are provided by the Employer shall be treated as benefits provided under a
+plan maintained by the Employer for purposes of Section 3.4. (ii) A
+multiemployer plan shall be disregarded for purposes of applying the
+compensation limitation of Sections 3.4.11(b) and 3.4.11 (h)(i) to a plan which
+is not a multiemployer plan. III-13
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens036.jpg]
+ARTICLE IV VESTING PROVISIONS 4.1 Determination of Vesting In the case of a
+Participant who performs at least one Hour of Service on or after January 1,
+1989, he shall have a vested percentage of 100% in his Retirement Benefit upon:
+(i) termination of Employment due to death or Disability or upon or after
+attaining Normal Retirement Age; or (ii) completion of five years of Vesting
+Service. 4.2 Rules for Crediting Vesting Service Subject to Sections 4.2.2
+through 4.2.4 below, a Participant's Vesting Service shall mean the sum of a
+Participant's Years of Service under the Plan, except for Years of Service
+before the Participant attained age 18 (or age 22 in the case of Participants
+who do not complete at least one Hour of Service on or after January 1, 1985).
+If an Employee is on an authorized unpaid leave of absence granted by his
+Employer in accordance with standard personnel policies of such Employer applied
+in a non- discriminatory manner to all Employees similarly situated, his period
+of absence shall not be considered a Break in Service and shall be counted as
+Vesting Service upon his return to active Employment. If an Employee is on an
+authorized military leave while his reemployment rights are protected by law and
+provided that he directly entered military service from his Employer's service
+and shall not have voluntarily reenlisted after the date of first entering
+active military service, his period of absence shall not be considered a Break
+in Service and shall be counted as Vesting Service upon his return to active
+Employment. An Employee who terminates Employment with no vested percentage in
+his Retirement Benefit shall, if he returns to Employment, have no credit for
+Vesting Service prior to such termination of Employment if (i) for years prior
+to January 1, 1985, the total of his consecutive One Year Breaks in Service
+immediately preceding his reemployment exceed his aggregate years of Vesting
+Service (whether or not consecutive, but excluding Vesting Service previously
+disregarded under this rule) prior to such termination; or (ii) for years on or
+after January 1, 1985, the total of his consecutive One Year Breaks in Service
+immediately preceding his reemployment exceed the greater of five years or his
+aggregate years of Vesting Service (whether or not consecutive, but excluding
+Vesting Service previously disregarded under this rule) prior to the
+termination. A Participant who had a Vested Separation and returns to Employment
+will retain credit for his prior years of Vesting Service. 4.3 Retirement
+Benefit Forfeitures The unvested portion of the Retirement Benefit of a
+Participant who has terminated Employment shall be forfeited as of the earliest
+date on which such Participant's Vesting Service may be disregarded pursuant to
+Section 4.2.4. Any forfeitures shall be applied to reduce the Employer actuarial
+liability under the Plan. IV-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens037.jpg]
+4.4 TMK Hogan A Participant who terminated employment with the Company on
+December 31, 1996, and who became as of January 1, 1997, an employee of TMK
+Hogan, became fully vested in his or her Retirement Benefit as of such date. 4.5
+Vesta Insurance Group, Inc. A Liberty National Non-Commissioned Participant who
+terminated Employment with Liberty National Life Insurance Company on November
+12, 1993, and who became as of that same date an employee of Vesta Insurance
+Group, Inc., became fully vested in his Retirement Benefit as of such date. IV-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens038.jpg]
+ARTICLE V AMOUNT AND COMMENCEMENT OF RETIREMENT BENEFITS 5.1 Determination of
+Amount of Retirement Benefits Normal Retirement Benefits. A Participant's
+benefits upon Normal Retirement shall be equal to his Retirement Benefit as of
+his Normal Retirement Date. The Participant's Benefit Commencement Date shall be
+the last day of the payroll period coincident with or next following his
+termination of Employment. The Participant shall not be entitled to any benefits
+under Section 5.1.1 unless he shall survive until his Benefit Commencement Date.
+Deferred Retirement Benefits. A Participant's benefits upon Deferred Retirement
+shall be equal to his Retirement Benefit determined as of the date of Deferred
+Retirement (without actuarial increase for deferred commencement). The
+Participant's Benefit Commencement Date shall be the last day of the payroll
+period coincident with or next following his termination of Employment. The
+Participant shall not be entitled to any benefits under this Paragraph unless he
+shall survive until his Benefit Commencement Date. Early Retirement Benefits. A
+Participant's benefits upon Early Retirement shall be equal to his Retirement
+Benefit calculated as of the date of Early Retirement. The Participant's Benefit
+Commencement Date shall be his Normal Retirement Date; however if he so elects,
+the Benefit Commencement Date shall be the last day of the payroll period
+coincident with or next following his Early Retirement, or the last day of any
+payroll period thereafter which is prior to his Normal Retirement Date. If the
+Participant elects a Benefit Commencement Date preceding his Normal Retirement
+Date, his benefit shall equal his Accrued Retirement Benefit multiplied by the
+early retirement factor shown below: Years by Which the Date of the
+Participant's First Benefit Early Retirement Payment Precedes His Factor to Be
+Applied Normal Retirement Date to Accrued (Interpolate for Months) Retirement
+Benefit 10 .500 9 .533 8 .567 7 .600 6 .633 5 .667 4 .733 3 .800 2 .867 1 .933 0
+1.000 A Participant shall not be entitled to any benefits under this Section
+5.13 unless he shall survive until his Benefit Commencement Date. V-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens039.jpg]
+Vested Separation Benefits. A Participant's benefits upon Vested Separation
+shall be equal to his Retirement Benefit calculated as of the date of Vested
+Separation multiplied by his vesting percentage. The Participant's Benefit
+Commencement Date shall be his Normal Retirement Date; provided, however, that,
+such a Participant may elect to commence receiving his benefits on or after the
+earliest date that he could have been eligible for Early Retirement. If the
+Participant elects a Benefit Commencement Date preceding his Normal Retirement
+Date, his benefit shall equal his Accrued Retirement Benefit multiplied by the
+appropriate early retirement factor shown in Section 5.1.3. A Participant shall
+not be entitled to any benefits under this Section 5.1.4 unless he shall survive
+until his Benefit Commencement Date. Non-Vested Separation. A Participant shall
+not be entitled to any Retirement Benefit upon his Non-Vested Separation. In
+addition, if a Participant who is zero percent vested in his Accrued Retirement
+Benefit terminates Employment, he shall be deemed to have received a
+distribution of his Accrued Retirement Benefit. 5.2 Suspension of Payments If an
+Employee continues in Employment after his Normal Retirement Date or if a former
+Employee is receiving monthly payment of his Retirement Benefit, payment of his
+Retirement Benefit shall be suspended for each calendar month during which such
+Employee or former Employee continues in (or resumes) Employment and performs
+more than 40 Hours of Service per calendar month considered as service under
+ERISA § 203(a)(3)(B). No payment shall be withheld by the Plan pursuant to
+Section 5.2 unless the Plan notifies the Employee by personal delivery or first
+class mail during the first calendar month or payroll period in which the Plan
+withholds payments that his benefits are suspended. Such notifications shall
+contain a description of the specific reasons why benefit payments are being
+suspended, a description of the Plan provision relating to the suspension of
+payments, a copy of such provisions, and a statement to the effect that
+applicable Department of Labor regulations may be found in Title 29 of the Code
+of Federal Regulations § 2530.203-3. In addition, the notice shall inform the
+Employee of the Plan's procedures for affording a review of the suspension of
+benefits. Requests for such reviews shall be considered in accordance with the
+claims procedure adopted by the Administrator. If benefit payments have been
+suspended, payments shall resume no later than the first day of the third
+calendar month after the calendar month in which the Employee ceases to be
+employed in ERISA § 203(a)(3)(B) service. The initial payment upon resumption
+shall include the payment scheduled to occur in the calendar month when payments
+resume and any amounts withheld during the period between the cessation of ERISA
+§ 203(a)(3)(B) service and the resumption of payments. The Retirement Benefit
+payable upon resumption of benefit payment shall be equal to the Participant's
+Retirement Benefit as of the date of his subsequent termination of Employment
+reduced by the Actuarial Equivalent of payments previously made to him;
+provided, however, that such Retirement Benefit may not be less than the
+Retirement Benefit previously payable. V-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens040.jpg]
+5.3 Limitation on Commencement of Benefits Unless otherwise elected by a
+Participant, the Participant's Benefit Commencement Date shall in no event be
+later than the 60th day after the close of the Plan Year in which the latest of
+the following events occurs: (a) The attainment by the Participant of his Normal
+Retirement Age; (b) The tenth anniversary of the year in which the Participant
+commenced participation in the Plan; or (c) The Participant's termination of
+Employment. If the amount of benefits payable cannot be determined within such
+60-day period, or if it is not possible to pay such benefits within such period
+because the Administrator has been unable to locate the Participant after making
+reasonable efforts to do so, then a payment, retroactive to such 60th day, shall
+be made no later than 60 days after the earliest date on which the amount of
+such benefits can be determined or the Participant can be located, as the case
+may be. Any other provision of this Article V to the contrary notwithstanding,
+the Benefit Commencement Date of a Participant must be no later than the first
+day of April following the 1 calendar year in which the Participant attains age
+70 /2 even if he continues in Employment after that date. Notwithstanding the
+foregoing, if a Participant who is not a "five % owner" (as defined in Code 1 §
+401(a)(9)) attained age 70 /2 before January 1, 1988, the Benefit Commencement
+Date must be no later than the first day of April following the calendar year in
+which the Participant terminates Employment. Effective as of January 1, 1997, in
+the case of a Participant who is not a five % owner (as defined above) with
+respect to the Plan Year ending in the calendar year in which the Participant 1
+attains age 70 /2, the Benefit Commencement Date must be no later than the later
+of (i) the calendar 1 year during which the Participant attained age 70 /2, or
+(ii) the calendar year in which the Participant retired. Transitional rule for
+the 1997, 1998, 1999, 2000 and 2001 Plan Years: If a Participant attains 1 age
+70 /2 during the 1997, 1998 or 1999 Plan Years and wishes to receive (or begin
+receiving) the required minimum distribution that would have been payable to him
+but for the Small Business Job Protection Act of 1996 changes to the immediately
+preceding paragraph, the Participant may elect, pursuant to a procedure
+established by the Administrator, to begin receiving his required minimum
+distributions prior to his retirement. If a Participant who has not retired
+(other than a five % owner) 1 attains age 70 /2 on or after January 1, 2002, the
+Participant may not begin to receive in-service 1 distributions on account of
+his attainment of age 70 /2. If a Participant retires in a calendar year after
+the calendar year in which the Participant attains 1 age 70 /2, his or her
+benefits under the Plan shall be actuarially increased (with any permitted
+offsets or reductions) as provided for in Internal Revenue Service Notice 97-75
+or such other written guidance published by the Internal Revenue Service. V-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens041.jpg]
+5.4 Minimum Distribution Requirements. 5.4.1 Precedence. Subject to Section
+6.1.1, the requirements of this Section shall apply to any distribution of a
+Participant’s interest and will take precedence over any inconsistent provisions
+of this plan. 5.4.2 Requirements of Regulations Incorporated. All distributions
+required under this Section shall be determined and made in accordance with Code
+§ 401(a)(9), including the incidental death benefit requirement in Code
+§401(a)(9)(G), and the Income Tax Regulations thereunder. 5.4.3 Limits on
+Distribution Periods. As of the first distribution calendar year, distributions
+to a participant, if not made in a single sum, may only be made over one of the
+following periods: (a) the life of the participant, (b) the joint lives of the
+participant and a designated beneficiary, (c) a period certain not extending
+beyond the life expectancy of the participant, or (d) a period certain not
+extending beyond the joint life and last survivor expectancy of the participant
+and a designated beneficiary. 5.4.4 Required Beginning Date. The participant’s
+entire interest will be distributed, or begin to be distributed, no later than
+the participant’s required beginning date. 5.4.5 Death of Participant Before
+Distributions Begin. If the participant dies before distributions begin, the
+participant’s entire interest will be distributed, or begin to be distributed,
+no later than as follows: (a) If the participant’s surviving spouse is the
+participant’s sole designated beneficiary, then, distributions to the surviving
+spouse will begin by December 31 of the calendar year immediately following the
+calendar year in which the participant died, or by December 31 of the calendar
+year in which the participant would have attained age 70½, if later. (b) If the
+participant’s surviving spouse is not the participant’s sole designated
+beneficiary, then, except as provided in the adoption agreement, distributions
+to the designated beneficiary will begin by December 31 of the calendar year
+immediately following the calendar year in which the participant died. (c) If
+there is no designated beneficiary as of September 30 of the year following the
+year of the participant’s death, the participant’s entire interest will be
+distributed by December 31 of the calendar year containing the fifth anniversary
+of the Participant’s death. (d) If the participant’s surviving spouse is the
+participant’s sole designated beneficiary and the surviving spouse dies after
+the participant but before distributions to the surviving V-4
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens042.jpg]
+spouse are required to begin, this Section, other than Subsection (a), will
+apply as if the surviving spouse were the participant. (e) If the Participant
+dies before distributions begin and there is a designated Beneficiary,
+distribution to the designated Beneficiary is not required to begin by the date
+covered by this Section 5.4.5, but the Participant's entire interest will be
+distributed to the designated Beneficiary by December 31 of the calendar year
+containing the fifth anniversary of the Participant's death. If the
+Participant's Surviving Spouse is the Participant's sole designated Beneficiary
+and the Surviving Spouse dies after the Participant but before distributions to
+either the Participant or the Surviving Spouse begin, this election will apply
+as if the Surviving Spouse were the Participant. This Section 5.4.5(e) shall
+apply to all distributions. For purposes of this Section 5.4.5 and Sections
+5.4.12, 5.4.13 and 5.4.14, distributions are considered to begin on the
+Participant's required beginning date (or, if Section 5.4.5(d) applies, the date
+distributions are required to begin to the Surviving Spouse under Section
+5.4.5(a)). If annuity payments irrevocably commence to the Participant before
+the Participant's required beginning date (or to the Participant's Surviving
+Spouse before the date distributions are required to begin to the Surviving
+Spouse under Section 5.4.5(a)), the date distributions are considered to begin
+is the date distributions actually commence. 5.4.6 Form of Distribution. Unless
+the Participant's interest is distributed in the form of an annuity purchased
+from an insurance company or in a single sum on or before the required beginning
+date, as of the first distribution calendar year distributions will be made in
+accordance with Sections 5.4.7 through 5.4.14. If the Participant's interest is
+distributed in the form of an annuity purchased from an insurance company,
+distributions thereunder will be made in accordance with the requirements of
+Code § 401(a)(9) and the Regulations. Any part of the Participant's interest
+which is in the form of an individual account described in Code § 414(k) will be
+distributed in a manner satisfying the requirements of Code § 401(a)(9) and the
+Regulations that apply to individual accounts. 5.4.7 General Annuity
+Requirements. If the Participant's interest is paid in the form of annuity
+distributions under the Plan, payments under the annuity will satisfy the
+following requirements: (a) The annuity distributions will be paid in periodic
+payments made at intervals not longer than one year; (b) The distribution period
+will be over a life (or lives) or over a period certain not longer than the
+period described in Sections 5.4.10 and 5.4.11 or Sections 5.4.12 through
+5.4.14. (c) Once payments have begun over a period certain, the period certain
+will not be changed even if the period certain is shorter than the maximum
+permitted; (d) Payments will either be nonincreasing or increase only as
+follows: (i) By an annual percentage increase that does not exceed the annual
+percentage increase in a cost-of-living index that is based on prices of all
+items and issued by the Bureau of Labor Statistics; V-5
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens043.jpg]
+(ii) To the extent of the reduction in the amount of the Participant's payments
+to provide for a survivor benefit upon death, but only if the Beneficiary whose
+life was being used to determine the distribution period described in Section
+5.4.10 or 5.4.11 dies or is no longer the Participant's Beneficiary pursuant to
+a qualified domestic relations order within the meaning of Code § 414(p); (iii)
+To provide cash refunds of employee contributions upon the Participant's death;
+or (iv) To pay increased benefits that result from a Plan amendment. 5.4.8
+Amount Required to be Distributed by Required Beginning Date. The amount that
+must be distributed on or before the Participant's required beginning date (or,
+if the Participant dies before distributions begin, the date distributions are
+required to begin under Section 5.4.5(a) or 5.4.5(b)) is the payment that is
+required for one payment interval. The second payment need not be made until the
+end of the next payment interval even if that payment interval ends in the next
+calendar year. Payment intervals are the periods for which payments are
+received, e.g., bi-monthly, monthly, semi-annually, or annually. All of the
+Participant's benefit accruals as of the last day of the first distribution
+calendar year will be included in the calculation of the amount of the annuity
+payments for payment intervals ending on or after the Participant's required
+beginning date. 5.4.9 Additional Accruals After First Distribution Calendar
+Year. Any additional benefits accruing to the Participant in a calendar year
+after the first distribution calendar year will be distributed beginning with
+the first payment interval ending in the calendar year immediately following the
+calendar year in which such amount accrues. 5.4.10 Joint Life Annuities Where
+the Beneficiary Is Not the Participant's Spouse. If the Participant's interest
+is being distributed in the form of a joint and survivor annuity for the joint
+lives of the Participant and a non-Spouse Beneficiary, annuity payments to be
+made on or after the Participant's required beginning date to the designated
+Beneficiary after the Participant's death must not at any time exceed the
+applicable percentage of the annuity payment for such period that would have
+been payable to the Participant using the table set forth in Q&A-2 of §
+1.401(a)(9)-6T of the Treasury Regulations. If the form of distribution combines
+a joint and survivor annuity for the joint lives of the Participant and a
+non-Spouse Beneficiary and a period certain annuity, the requirement in the
+preceding sentence will apply to annuity payments to be made to the designated
+Beneficiary after the expiration of the period certain. 5.4.11 Period Certain
+Annuities. Unless the Participant's spouse is the sole designated Beneficiary
+and the form of distribution is a period certain and no life annuity, the period
+certain for an annuity distribution commencing during the Participant's lifetime
+may not exceed the applicable distribution period for the Participant under the
+Uniform Lifetime Table set forth in Regulation § 1.401(a)(9)-9 for the calendar
+year that contains the annuity starting date. If the annuity starting date
+precedes the year in which the Participant reaches age 70, the applicable
+distribution period for the Participant is the distribution period for age 70
+under the Uniform Lifetime Table set forth in Regulation § 1.401(a)(9)-9 plus
+the excess of 70 over the age of the Participant as of the Participant's
+birthday in the year that contains the annuity starting date. If the
+Participant's Spouse is the Participant's sole designated Beneficiary and the
+form of distribution is a period certain and no life annuity, the period certain
+may not exceed the longer of the Participant's applicable distribution period,
+as determined under this Section 5.4.11, or the joint life and last survivor
+expectancy of the Participant V-6
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens044.jpg]
+and the Participant's Spouse as determined under the Joint and Last Survivor
+Table set forth in Regulation § 1.401(a)(9)-9, using the Participant's and
+Spouse's attained ages as of the Participant's and Spouse's birthdays in the
+calendar year that contains the annuity starting date. 5.4.12 Participant
+Survived by Designated Beneficiary. If the Participant dies before the date
+distribution of his or her interest begins and there is a designated
+Beneficiary, the Participant's entire interest will be distributed, beginning no
+later than the time described in Section 5.4.5(a) or 5.4.5(b), over the life of
+the designated Beneficiary or over a period certain not exceeding: (a) Unless
+the annuity starting date is before the first distribution calendar year, the
+life expectancy of the designated Beneficiary determined using the Beneficiary's
+age as of the Beneficiary's birthday in the calendar year immediately following
+the calendar year of the Participant's death; or (b) If the annuity starting
+date is before the first distribution calendar year, the life expectancy of the
+designated Beneficiary determined using the Beneficiary's age as of the
+Beneficiary's birthday in the calendar year that contains the annuity starting
+date. 5.4.13 No Designated Beneficiary. If the Participant dies before the date
+distributions begin and there is no designated Beneficiary as of September 30 of
+the year following the year of the Participant's death, distribution of the
+Participant's entire interest will be completed by December 31 of the calendar
+year containing the fifth anniversary of the Participant's death. 5.4.14 Death
+of Surviving Spouse Before Distributions to Surviving Spouse Begin. If the
+Participant dies before the date distribution of his or her interest begins, the
+Participant's Surviving Spouse is the Participant's sole designated Beneficiary,
+and the Surviving Spouse dies before distributions to the Surviving Spouse
+begin, Sections 5.4.12 through 5.4.14 will apply as if the Surviving Spouse were
+the Participant, except that the time by which distributions must begin will be
+determined without regard to Section 5.4.5(a). 5.4.15 Designated Beneficiary.
+The individual who is designated as the Beneficiary under Section 7.4 of the
+Plan and is the "designated beneficiary" under Code § 401(a)(9) and Regulation §
+1.401(a)(9)-1, Q&A-4. 5.4.16 Distribution Calendar Year. A calendar year for
+which a minimum distribution is required. For distributions beginning before the
+Participant's death, the first distribution calendar year is the calendar year
+immediately preceding the calendar year which contains the Participant's
+required beginning date. For distributions beginning after the Participant's
+death, the first distribution calendar year is the calendar year in which
+distributions are required to begin pursuant to Section 5.4.5. 5.4.17 Life
+expectancy. Life expectancy as computed by use of the Single Life Table in
+Regulation § 1.401(a)(9)-9. 5.4.18 Required beginning date. The date specified
+in Section 5.3.3 of the Plan. V-7
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens045.jpg]
+ARTICLE VI FORMS OF PAYMENT OF RETIREMENT BENEFIT 6.1 Methods of Distribution A
+Participant's benefits shall be payable in the normal form of a Qualified Joint
+and Survivor Annuity if the Participant is married on his Benefit Commencement
+Date and in the normal form of an annuity for the life of the Participant with
+Actuarially Equivalent payments guaranteed for 120 months if the Participant is
+not married on that date, provided that, and subject to Sections 6.1.2, 6.1.3
+and 6.1.4, a Participant may within the 90-day period prior to the Benefit
+Commencement Date elect, in accordance with Section 6.2, any of the following
+optional forms of benefit payment instead of the normal form: (a) A Single Life
+Annuity, under which monthly payments calculated in accordance with Section
+3.1.1 are made to the Participant during his lifetime with no further payments
+from the Plan on his behalf after his death. 2 (b) A Joint and 50%, 66 /3%, 75%
+or 100% Survivor Annuity, under which Actuarially Equivalent monthly payments
+are made to the Participant for the joint lives of the Participant and his
+Beneficiary with payments continuing for the life of the survivor in an amount
+equal to 50%, 66 %%, 75% or 100% of the joint life payments (whichever is
+elected by the Participant). A Participant may elect to add a period certain of
+10 years in which event no reduction in payments will be made for the longer of
+the 10 year period or the period during which both the Participant and
+Beneficiary remain alive. (c) A 120 Months Certain and Life Income Annuity, an
+optional form of payment for a married Participant, under which reduced
+Actuarially Equivalent payments are made to the Participant during the
+Participant's lifetime, with the provision that if the Participant's death
+occurs before he had received 120 monthly payments the value of the remaining
+number of such payments shall be paid to his Beneficiary. (d) Lump Sum, under
+which the Actuarially Equivalent value of the Participant's Accrued Retirement
+Benefit as of December 31, 2003 is paid in one single sum. This optional form of
+benefit shall be eliminated with respect to benefits accruing under the Plan
+after December 31, 2003 and a lump sum option shall not be available to an
+Employee who becomes a Participant on or after January 1, 2004. Notwithstanding
+the preceding sentence, if the implementation of an election of a single sum
+distribution of a pre-2004 Retirement Benefit would result in monthly payments
+of the Participant's Retirement Benefit accrued after 2003 of an amount less
+than $100, the present value of the portion of the Participant's Retirement
+Benefit that accrued after 2003 shall also be paid in the form of a single sum.
+Anything in Section 6.1.1 to the contrary notwithstanding, if the Actuarial
+Equivalent value of a Participant's Retirement Benefit is $1,000 or less, his
+benefit shall be paid in the form of a lump sum distribution and no optional
+form of benefit payment shall be available. Payment in any form may only be made
+over one of the following periods (or a combination thereof): (a) The life of
+the Participant; VI-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens046.jpg]
+(b) The life of the Participant and a designated Beneficiary; (c) A period
+certain not extending beyond the life expectancy of the Participant; or (d) A
+period certain not extending beyond the joint and last survivor expectancy of
+the Participant and a designated Beneficiary. If the Participant's Spouse is not
+his designated Beneficiary, the method of distribution must assure that at least
+50% of the present value of the Participant's Retirement Benefit is paid within
+the life expectancy of the Participant. 6.2 Election of Optional Forms By notice
+to the Administrator within the 180-day period prior to a Participant's Benefit
+Commencement Date, the Participant may elect, in writing and subject to the
+spousal consent rules as set forth in Section 6.2.4, not to receive the normal
+form of benefit payment otherwise applicable and to receive instead an optional
+form of benefit payment provided for in Section 6.1.1. Within a reasonable
+period, but in no event later than 30 days before nor earlier than 180 days
+(unless the Participant elects to waive the 30 day limitation in favor of a
+seven day limitation as permitted under Code § 417(a)(7)(B)) before a
+Participant's Benefit Commencement Date, the Administrator shall provide to each
+Participant a written explanation of: (a) The terms and conditions of the
+Participant's normal form of benefit payment; (b) The Participant's right to
+make, and the effect of, an election to waive the normal form of benefit
+payment; (c) The rights of the Participant's Spouse under Section 6.2.4; (d) The
+right to make, and the effect of, a revocation of a previous election to waive
+the normal form of benefit payment; and (e) The relative values of the various
+optional forms of benefit payment. The Administrator may, on a uniform and
+nondiscriminatory basis, provide for such other notices, information or election
+periods or take such other action as the Administrator considers necessary or
+appropriate in order to comply with Code §§ 401(a)(11) and 417. A Participant
+may revoke his election to take an optional form of benefit at any time prior to
+the Participant's Benefit Commencement Date, without the consent of his Spouse.
+The election of an optional form of benefit by a married Participant must be in
+the form of a waiver of a Qualified Joint and Survivor Annuity. The election
+must be in writing and consented to by the Participant's Spouse. The Spouse's
+consent to the waiver must specify the form of benefit being elected and the
+non-Spouse Beneficiary, if any, and must be witnessed by the Administrator or a
+notary public. Notwithstanding this consent requirement, if the Participant
+establishes to the satisfaction of the Administrator that such written consent
+may not be obtained VI-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens047.jpg]
+because there is no Spouse or the Spouse cannot be located, the Participant's
+election will be deemed effective. Any consent necessary under this provision
+will be valid only with respect to the Spouse who signs the consent, or in the
+event of a deemed effective election, the designated Spouse. The election of an
+optional form of benefit which contemplates the payment of an annuity shall not
+be given effect if any person who would receive benefits under the annuity dies
+before the Benefit Commencement Date. 6.3 Direct Rollovers A Participant or
+Spouse may elect to have all or a portion of any amount payable to him or her
+from the Plan which is an "eligible rollover distribution" (as defined in
+Section 6.3.2 below) transferred directly to an "eligible retirement plan" (as
+defined in Section 6.3.2 below). Any such election shall be made in accordance
+with such uniform rules and procedures as the Administrator may prescribe from
+time to time as to the timing and manner of the election in accordance with Code
+§ 401(a)(31). For purposes of this Section and Section 7.2.4: (a) "Eligible
+rollover distribution" shall mean any distribution of all or any portion of the
+balance to the credit of the distributee other than: (i) any distribution that
+is one of a series of substantially equal periodic payments (not less frequently
+than annually) made for the life (or life expectancy) of the distributee or the
+joint lives (or joint life expectancies) of the distributee and the
+distributee's designated Beneficiary; (ii) any distribution for a specified
+period of 10 years or more; (iii) any distribution to the extent such
+distribution is required under Code § 401(a)(9); (iv) the portion of any
+distribution that is not includable in gross income; or (v) any hardship
+distribution described in § 401(k)(2)(B)(i)(iv) received after December 31,
+1998. (b) "Eligible retirement plan" shall mean an individual retirement account
+or annuity described in Code § 408(a) or 408(b) ("IRA"); a Roth IRA described in
+Code § 408A(b); an annuity plan described in Code § 403(a); an annuity contract
+described in Code § 403(b); an eligible plan under Code § 457(b) which is
+maintained by a state, political subdivision of a state, or any agency or
+instrumentality of a state or political subdivision of a state and which agrees
+to separately account for amounts transferred into such plan from this Plan; or
+a qualified plan described in Code § 401(a), that accepts the distributee's
+eligible rollover distribution. The definition of eligible retirement plan shall
+also apply in the case of a distribution to a Surviving Spouse, or to a Spouse
+or former Spouse who is the alternate payee under a qualified domestic relations
+order, as defined in Code § 414(p). Direct rollover to qualified plan/403(b)
+plan. Section 6.3.2(a)(4) notwithstanding, for taxable years beginning after
+December 31, 2006, a Participant or Spouse may elect to transfer non-taxable or
+employee after-tax contributions by means of a direct rollover to a qualified
+plan or to a 403(b) plan that agrees to account separately for amounts so
+transferred (including interest thereon), including accounting separately for
+the portion of such distribution which is includible in gross income and the
+portion of such distribution which is not includible in gross income. Non-Spouse
+Beneficiary rollover right. A non-Spouse Beneficiary who is a "designated
+beneficiary" under Code § 401(a)(9)(E) and the Regulations thereunder, by a
+direct trustee- to-trustee transfer ("direct rollover"), may roll over all or
+any portion of his or her distribution to an Individual Retirement Account (IRA)
+the Beneficiary establishes for purposes of receiving the VI-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens048.jpg]
+distribution. In order to be able to roll over the distribution, the
+distribution otherwise must satisfy the definition of an "eligible rollover
+distribution" under Code § 401(a) (31). If the Participant's named Beneficiary
+is a trust, the Plan may make a direct rollover to an IRA on behalf of the
+trust, provided the trust satisfies the requirements to be a "designated
+beneficiary" within the meaning of Code § 401(a)(9)(E). If a non-Spouse
+Beneficiary receives a distribution from the Plan, the distribution is not
+eligible for a 60-day (non-direct) rollover. A non-Spouse Beneficiary may not
+roll over an amount that is a required minimum distribution, as determined under
+applicable Treasury Regulations and other Internal Revenue Service guidance. If
+the Participant dies before his or her required beginning date and the
+non-Spouse Beneficiary rolls over to an IRA the maximum amount eligible for
+rollover, the Beneficiary may elect to use either the five-year rule or the life
+expectancy rule, pursuant to Treasury Regulations § 1.401(a)(9)-3, A-4(c), in
+determining the required minimum distributions from the IRA that receives the
+non-Spouse Beneficiary's distribution. 6.4 Notices (a) Any reference to the
+90-day maximum notice period requirements of Code §§ 402(f) (the rollover
+notice), 411(a)(11) (Participant's consent to distribution), and 417 (notice
+regarding the joint and survivor annuity rules) is changed to 180 days. (b)
+Notices given to Participants pursuant to Code § 411(a)(11) shall include a
+description of how much larger benefits will be if the commencement of
+distributions is deferred. (c) Notices to Participants shall include the
+relative values of the various optional forms of benefit, if any, under the Plan
+as provided in Regulation § 1.417(a)-3. (d) Any notice to Participants or
+election by Participants that the Plan requires to be made in writing, may, at
+the option of the Administrator, be provided electronically in accordance with
+Regulation § 1.401(a)-21. VI-4
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens049.jpg]
+ARTICLE VII DEATH BENEFITS 7.1 Eligibility for Pre-Retirement Death Benefit A
+pre-retirement death benefit shall be payable under the Plan in the event of the
+death of a Participant prior to his Benefit Commencement Date who, on the date
+of death, was either: (a) Actively employed by the Employer; (b) Disabled; or
+(c) Terminated but eligible for Early Retirement. The death benefit payable
+under this Section 7.1.1 shall be the larger of (d) or (e), where: (d) Is the
+lump sum Actuarial Equivalent, as of the day before the death of the
+Participant, of the Accrued Retirement Benefit that would have been payable upon
+Normal Retirement of the Participant; (e) Is the lump sum Actuarial Equivalent,
+as of the day before the Participant's death, of the monthly benefit which would
+have been payable to the Participant's Spouse in the form of an immediate
+Qualified Joint and Survivor Annuity under the Plan if (i) in the case of a
+Participant who dies after having attained the earliest retirement age under the
+Plan, the Participant had retired on the day before his death, and (ii) in the
+case of a Participant who dies before having attained the earliest retirement
+age under the Plan, the Participant had separated from service as of his date of
+death, survived until his earliest retirement age under the Plan, retired on the
+day after attainment of his earliest retirement age under the Plan, and died
+immediately thereafter. A pre-retirement death benefit shall also be payable
+under the Plan in the event of the death of a married Participant prior to his
+or her Benefit Commencement Date who had a Vested Separation prior to
+eligibility for Early Retirement. The death benefit payable under this Section
+7.1.2 shall be equal to the benefit calculated under Section 7.1.1(e). 7.2 Form
+of Pre-Retirement Death Benefit The pre-retirement death benefit payable under
+Section 7.1.1 shall be payable to the Surviving Spouse of such Participant in
+the form of an Actuarially Equivalent single life annuity commencing on the date
+of death unless the Participant has no Surviving Spouse or the Participant has
+made an election under Section 7.3, with the Spouse's consent, not to have the
+benefit paid in such form. If the Participant has no Surviving Spouse or has
+made an effective election under Section 7.3, such benefit shall be paid to the
+Participant's Beneficiary in the Actuarially Equivalent form elected by the
+Participant commencing on the date elected, or if there is no designated
+Beneficiary, to the Participant's estate in a single lump sum. The Surviving
+Spouse or other Beneficiary may elect any other Actuarially Equivalent form of
+payment permitted under Section 6.1.1, by an instrument in writing filed with
+the Administrator within 60 days after the Participant's death. The
+pre-retirement death benefit payable under Section 7.1.2 shall be payable to the
+Surviving Spouse of such Participant in the form of an Actuarially Equivalent
+single life annuity VII-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens050.jpg]
+commencing on the date the Participant would have attained earliest retirement
+age, unless the Surviving Spouse shall elect another Actuarially Equivalent form
+of payment permitted by Section 6.1.1, by an instrument in writing filed with
+the Administrator within 60 days after the Participant's death. No benefit shall
+be payable under Section 7.1.2 unless the Spouse is alive on such Benefit
+Commencement Date. Notwithstanding the provisions of Sections 7.2.1 and 7.2.2,
+if the present value of the pre-retirement death benefit payable under Section
+7.1.1 or 7.1.2 is $1,000 or less, such benefit shall be distributed in a single
+lump sum as soon as practicable following the death of the Participant. Any lump
+sum payment payable to a Spouse pursuant to this Section 7.2 shall be eligible
+for a direct rollover in accordance with Section 6.3. 7.3 Election to Waive An
+election by a married Participant under Section 7.2.1 must be in the form of an
+election to waive the Qualified Pre-Retirement Survivor Annuity. In order for
+any waiver pursuant to this Section 7.3.1 to be effective, the Participant's
+Spouse must consent in writing to such election, and such consent must
+acknowledge the effect of the election and must be witnessed by the
+Administrator or a notary public. Such spousal consent shall be effective only
+with respect to the Spouse giving this consent and, once given, such consent
+shall be irrevocable. The Participant shall have the right to revoke his waiver
+at any time prior to the earlier of the Participant's Benefit Commencement Date
+or death. 7.4 Beneficiaries With respect to any death benefit payable pursuant
+to Section 7.1.1, a Participant's Beneficiary shall be his Surviving Spouse or,
+subject to the spousal consent rules in Section 7.3, other Beneficiary or
+Beneficiaries designated by the Participant in accordance with rules established
+by the Administrator. With respect to any death benefit payable pursuant to
+Section 7.1.2, a Participant's Beneficiary shall be his Surviving Spouse. With
+respect to any form of payment of a Retirement Benefit pursuant to Article V
+providing for payments after the death of the Participant, a Participant shall
+designate, in accordance with the election procedure under Article VI, one or
+more Beneficiaries to whom amounts due after his death shall be paid, and the
+rights of such Beneficiary shall be governed by the terms of the form of payment
+so elected. No Spouse or other Beneficiary shall have any right to benefits
+under the Plan unless he shall survive the Participant. If a Beneficiary fails
+to survive a Participant for at least 30 days, it shall be presumed that the
+Participant survived the Beneficiary. 7.5 After-Death Distribution Rules
+Notwithstanding any Plan provision to the contrary, if a Participant dies after
+distribution of his benefits has commenced, the remaining portion of such
+benefits will continue to be distributed at least as rapidly as under the method
+of distribution being used prior to the Participant's death. VII-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens051.jpg]
+Notwithstanding any Plan provision to the contrary, if a Participant dies before
+distribution of his benefits has commenced, the Participant's entire interest
+will be distributed no later than 5 years after the Participant's death;
+provided, however, that if any portion of the Participant's interest is payable
+to his Beneficiary, distributions may be made in substantially equal
+installments over the life or life expectancy of the Beneficiary, commencing (i)
+in the case of a Beneficiary other than a Surviving Spouse, no later than one
+year after the Participant's death; and (ii) in the case of a Surviving Spouse,
+no later than the later of one year after the Participant's death or the date on
+which 1 the Participant would have attained age 70 /2. If the Spouse dies before
+payments to such Spouse begin, subsequent distributions shall be made as if the
+Spouse had been the Participant. VII-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens052.jpg]
+ARTICLE VIII CONTRIBUTIONS AND FORFEITURES 8.1 Contribution by the Company The
+Company and each Participating Affiliate will make contributions to the Trust at
+such times and in such amounts as the Company may determine. 8.2 Contributions
+by Employees Employees are not required or permitted to make contributions under
+the Plan. 8.3 Forfeitures Forfeitures under the Plan will be applied to reduce
+the Company's contributions and will not be applied to increase the benefits of
+any person hereunder prior to the termination of the Plan or complete
+discontinuance of contributions by the Company. 8.4 Return of Employer
+Contributions under Special Circumstances Notwithstanding any provision of this
+Plan to the contrary, upon timely written demand by an Employer to the Trustee:
+(a) Any contribution made by the Employer to the Plan under a mistake of fact
+shall be returned to the Employer by the Trustee within one year after the
+payment of the contribution; (b) Any contribution made by the Employer incident
+to the determination by the Commissioner of Internal Revenue that the Plan is
+initially a Qualified Plan shall be returned to the Employer by the Trustee
+within one year after notification from the Internal Revenue Service that the
+Plan is not initially a Qualified Plan; and (c) Any contribution made by the
+Employer conditioned upon the deductibility of the contribution under Code § 404
+shall be returned to the Employer within one year after a deduction for the
+contribution under Code § 404 is disallowed by the Internal Revenue Service, but
+only to the extent disallowed. Each contribution by an Employer shall be
+conditioned upon the deductibility of the contribution under Code § 404 unless
+the Employer elects otherwise. VIII-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens053.jpg]
+ARTICLE IX FIDUCIARIES 9.1 Named Fiduciaries The named fiduciaries, who shall
+have authority to control and manage the operation and administration of the
+Plan, are as follows: (a) The Company, which shall have the sole right to (i)
+appoint and remove from office the members of the Administrative Committee, the
+Trustee and any investment manager; (ii) establish a funding policy relating to,
+and the method for achieving the objectives of, the Plan; (iii) amend or
+terminate the Plan, and (iv), at its election, direct the Trustee concerning any
+aspect of the investment, management, or control of Plan assets; (b) The
+Administrative Committee, which shall have the authority and duties specified in
+Article XI hereof; (c) The Trustee, which shall have the authority and duties
+specified in Article X hereof and the Trust Agreement; and, in addition, the
+authority and duties of the Administrative Committee, in the event that no such
+Committee shall be appointed or constituted by the Company; and (d) Any
+investment manager or managers selected by the Company who renders investment
+advice with respect to Plan assets. 9.2 Employment of Advisers A "named
+fiduciary" with respect to the Plan (as defined in ERISA § 402(a)(2)) and any
+"fiduciary" (as defined in ERISA § 3(21)) appointed by such a "named fiduciary"
+may employ one or more persons to render advice with regard to any
+responsibility of such "named fiduciary" or "fiduciary" under the Plan. 9.3
+Multiple Fiduciary Capacities Any "named fiduciary" with respect to the Plan (as
+defined in ERISA § 402(a)(2)) and any other "fiduciary" (as defined in ERISA §
+3(21)) with respect to the Plan may serve in more than one fiduciary capacity.
+9.4 Reliance Any fiduciary with respect to the Plan may rely upon any direction,
+information or action of any other fiduciary, acting within the scope of its
+responsibilities under the Plan, as being proper under the Plan. 9.5 Scope of
+Authority and Responsibility The responsibilities of the Administrative
+Committee and the Trustee for the operation and administration of the Plan are
+allocated between them in accordance with the provisions of the Plan and the
+Trust Agreement wherein their respective duties are specified. Each fiduciary
+shall have only the authority and duties as are specifically given to it under
+this Plan, shall be responsible for the proper IX-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens054.jpg]
+exercise of its own authorities and duties, and shall not be responsible for any
+act or failure to act of any other fiduciary. 9.6 Trustee Subject to Directions
+of Named Fiduciary In the event the Company elects, pursuant to Section
+9.1(a)(iv), to direct the Trustee with respect to the investment, management, or
+control of Plan assets, the Company shall serve in such capacity as a Named
+Fiduciary of the Plan, and the Trustee shall be subject to such directions from
+the Company that are made in accordance with the terms of the Plan and are not
+contrary to the provisions of ERISA. IX-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens055.jpg]
+ARTICLE X TRUSTEE 10.1 Trust Agreement The Company shall enter into one or more
+Trust Agreements with the Trustee or Trustees selected by it in its sole
+discretion, and the Trustee shall receive the contributions to the Trust Fund
+made by the Employer pursuant to the Plan and shall hold, invest, reinvest, and
+distribute such fund, as applicable, in accordance with the terms and provisions
+of the Trust Agreement. The Company will determine the form and terms of such
+Trust Agreement and may modify such Trust Agreement from time to time to
+accomplish the purposes of this Plan and may, in its sole discretion, remove any
+Trustee and select any successor Trustee. 10.2 Assets in Trust Except as
+otherwise permitted under the Plan, all assets of the Plan shall be held in
+trust by the Trustee who upon acceptance of such office shall have such
+authority as is set forth in the Trust Agreement. X-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens056.jpg]
+ARTICLE XI ADMINISTRATIVE COMMITTEE 11.1 Appointment and Removal of
+Administrative Committee The administration of the Plan shall be vested in an
+Administrative Committee (hereinafter in this Article XI, the "Committee") of at
+least three (3) persons who shall be appointed by the Board, and may include
+persons who are not Participants in the Plan. A person appointed a member of the
+Committee shall signify his acceptance in writing. The Board may remove or
+replace any member of the Committee at any time in its sole discretion, and any
+Committee member may resign by delivering his written resignation to the Board,
+which resignation shall become effective upon its delivery or at any later date
+specified therein. If at any time there shall be a vacancy in the membership of
+the Committee, the remaining member or members of the Committee shall continue
+to act until such vacancy is filled by action of the Board. 11.2 Officers of
+Administrative Committee The Committee shall appoint from among its members a
+chairman, and shall appoint as secretary a person who may be, but need not be, a
+member of the Committee or a Participant in the Plan. 11.3 Action by
+Administrative Committee The Committee shall hold meetings upon such notice, at
+such place or places, and at such times as its members may from time to time
+determine. A majority of its members at the time in office shall constitute a
+quorum for the transaction of business. All action taken by the Committee at any
+meeting shall be by vote of the majority of its members present at such meeting,
+except that the Committee also may act without a meeting by a consent signed by
+a majority of its members. Any member of the Committee who is a Participant in
+the Plan shall not vote on any question relating exclusively to himself. 11.4
+Rules and Regulations Subject to the terms of the Plan, the Committee may from
+time to time adopt such rules and regulations as it shall deem appropriate for
+the administration of the Plan and for the conduct and transaction of its
+business and affairs. 11.5 Powers The Committee shall have such powers as may be
+necessary to discharge its duties under the Plan, including the power: (a) To
+interpret and construe the Plan in its discretion, to determine all questions
+with regard to employment, eligibility, Credited Service, Compensation,
+Retirement Benefits, and such factual matters as date of birth and marital
+status, and similarly related matters for the purpose of the Plan. The
+Committee's determination of all questions arising under the Plan shall be
+conclusive upon all Participants, the Board, the Company, Employers, the
+Trustee, and other interested parties; (b) To prescribe procedures to be
+followed by Participants and Beneficiaries filing application for benefits; XI-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens057.jpg]
+(c) To prepare and distribute to Participants information explaining the Plan;
+(d) To appoint or employ individuals to assist in the administration of the Plan
+and any other agents it deems advisable, including legal, accounting and
+actuarial counsel; (e) To instruct the Trustee to make benefit payments pursuant
+to the Plan; (f) To appoint an enrolled actuary and to receive and review the
+periodic valuation of the Plan made by such actuary; (g) To receive and review
+reports of disbursements from the Trust Fund made by the Trustees; and (h) To
+receive and review the periodic audit of the Plan made by a certified public
+accountant appointed by the Company. 11.6 Information from Participants Each
+Participant shall be required to furnish to the Committee, in the form
+prescribed by it, such personal data, affidavits, authorizations to obtain
+information, and other information as the Committee may deem appropriate for the
+proper administration of the Plan. 11.7 Reports The Committee shall prepare, or
+cause to be prepared, such periodic reports to the U.S. Labor Department, the
+Internal Revenue Service and the Pension Benefit Guaranty Corporation as may be
+required pursuant to the Code or ERISA. 11.8 Authority to Act The Committee may
+authorize one or more of its members, officers, or agents to sign on its behalf
+any of its instructions, directions, notifications, or communications to the
+Trustee, and the Trustee may conclusively rely thereon and on the information
+contained therein. 11.9 Liability for Acts The members of the Committee shall be
+entitled to rely upon all valuations, certificates and reports furnished by the
+Plan actuary or accountant and upon all opinions given by any legal counsel
+selected by the Committee, and the members of the Committee shall be fully
+protected with respect to any action taken or suffered by their having relied in
+good faith upon such actuary, accountant or counsel and all action so taken or
+suffered shall be conclusive upon each of them and upon all Participants and
+their Beneficiaries. No member of the Committee shall incur any liability for
+anything done or omitted by him except only liability for his own willful
+misconduct. 11.10 Compensation and Expenses Unless authorized by the Board, a
+member or officer of the Committee shall not be compensated for his service in
+such capacity, but shall be reimbursed for reasonable expenses incident to the
+performance of such duty. XI-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens058.jpg]
+11.11 Indemnity The Company shall indemnify the members of the Committee and any
+of their agents acting in behalf of the Plan against any and all liabilities or
+expenses, including all legal fees related thereto, to which they may be
+subjected as members of the Committee by reason of any act or failure to act
+which constitutes a breach or an alleged breach of fiduciary responsibility
+under ERISA or otherwise, except that due to a person's own willful misconduct.
+11.12 Denied Claims The claims procedures set forth in ERISA Regulation §
+2560.503-1 are hereby incorporated into the Plan except as otherwise provided in
+this Section 11.12. If any application for payment of a benefit under the Plan
+shall be denied, the Committee shall with the denial write the claimant setting
+forth the specific reasons for the denial and explaining the Plan's claim review
+procedure. If a claimant whose claim has been denied wishes further
+consideration of his claim, he may appeal to the Committee to review his claim
+in a written statement of the claimant's position filed with the Committee no
+later than 60 days after the claimant receives such denial (180 days in the case
+of a Disability claim). The Committee shall make a full review of the claim and
+the denial, giving the claimant written notice of its decision within the next
+60 days (45 days in the case of a Disability claim). Due to special
+circumstances, if no decision has been made within the first 60 days (45 days in
+the case of a Disability claim) and notice of the need for additional time has
+been furnished within such period, the decision may be made within the following
+60 days (45 days in the case of a Disability claim). A claimant shall be
+required to exhaust the administrative remedies provided by this Section 11.12
+prior to seeking any other form of relief, including a civil action under ERISA,
+provided that any such action must be filed no later than the 180th day after
+the date of the denial of the appeal. XI-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens059.jpg]
+ARTICLE XII PLAN AMENDMENT OR TERMINATION 12.1 Plan Amendment The Company shall
+have the right at any time to amend the Plan, which amendment shall be evidenced
+by an instrument in writing signed by an authorized officer of the Company,
+effective retroactively or otherwise. No such amendment shall have any of the
+effects specified in Section 12.2. 12.2 Limitations on Plan Amendment No Plan
+amendment shall: (a) Authorize any part of the Trust to be used for, or diverted
+to, purposes other than for the exclusive benefit of Participants or their
+Beneficiaries; (b) Decrease the accrued benefits of any Participant or his
+Beneficiary under the Plan (except to the extent permitted under Code §
+412(c)(8)); or (c) Change the vesting schedule, either directly or indirectly,
+unless each Participant having not less than three years of Vesting Service is
+permitted to elect, within a reasonable period specified by the Administrator
+after the adoption of such amendment, to have his vested percentage computed
+without regard to such amendment. The period during which the election may be
+made shall commence with the date the amendment is adopted and shall end as the
+later of: (i) 60 days after the amendment is adopted; (ii) 60 days after the
+amendment becomes effective; or (iii) 60 days after the Participant is issued
+written notice by the Administrator. No amendment to the Plan (including a
+change in the actuarial basis for determining optional or early retirement
+benefits) shall be effective to the extent that it has the effect of decreasing
+a Participant's accrued benefit. For purposes of this paragraph, a Plan
+amendment that has the effect of (1) eliminating or reducing an early retirement
+benefit or a retirement-type subsidy, or (2) eliminating an optional form of
+benefit, with respect to benefits attributable to service before the amendment
+shall be treated as reducing accrued benefits. In the case of a retirement-type
+subsidy, the preceding sentence shall apply only with respect to a Participant
+who satisfies (either before or after the amendment) the pre-amendment
+conditions for the subsidy. Notwithstanding the preceding sentences, a
+Participant's accrued benefit, early retirement benefit, retirement-type
+subsidy, or optional form of benefit may be reduced to the extent permitted
+under Code § 412(c)(8) (for Plan Years beginning on or before December 31, 2007)
+or Code § 412(d)(2) (for Plan Years beginning after December 31, 2007), or to
+the extent permitted under Regulation §§ 1.411(d)-3 and 1.411(d)-4. For purposes
+of this paragraph, a retirement-type subsidy is the excess, if any, of the
+actuarial present value of a retirement-type benefit over the actuarial present
+value of the accrued benefit commencing at Normal Retirement Age or at actual
+commencement date, if later, with both such actuarial present values determined
+as of the date the retirement-type benefit commences. 12.3 Right of the Employer
+to Terminate Plan XII-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens060.jpg]
+The Company intends and expects that from year to year it will be able to and
+will deem it advisable to continue this Plan in effect and to make contributions
+as herein provided. The Company reserves the right, however, to terminate the
+Plan at any time which termination shall be evidenced by an instrument in
+writing signed by an authorized officer of the Company delivered to the
+Administrator and the Trustee. 12.4 Effect of Partial or Complete Termination
+Determination of Date of Complete or Partial Termination. The date of complete
+or partial termination shall be established by the Administrator in accordance
+with the directions of the Company in accordance with applicable law. Effect of
+Termination. (a) As of the date of a partial termination of the Plan: (i) The
+accrued benefit of each affected Participant who is then an Employee, to the
+extent funded, shall become nonforfeitable; (ii) No affected Participant shall
+be granted Credited Service based on Years of Service after such date; and (iii)
+Compensation paid to affected Participants after such date shall not be taken
+into account. (b) As of the date of the complete termination of the Plan: (i)
+The accrued benefit of each Participant who is then an Employee, to the extent
+funded, shall become non-forfeitable; (ii) No Participant shall be granted
+Credited Service based on Years of Service after such date; (iii) Compensation
+paid after such date shall not be taken into account; (iv) No Eligible Employee
+shall become a Participant after such date; and (v) Except as may otherwise be
+required by applicable law, all Employer obligations to fund the Plan shall
+terminate. 12.5 Allocation of Assets At any time as the Company determines to
+distribute the Trust, the Trust shall be applied to the payment of or provision
+for benefits in accordance with the priority classes established by ERISA §
+4044. The respective amounts allocated to such priority classes shall be
+distributed to or set aside for the benefit of the persons entitled thereto in
+such manner as is determined by the Administrator. 12.6 Residual Assets XII-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens061.jpg]
+Any amounts remaining in the Trust after the satisfaction of all liabilities of
+the Trust with respect to all Participants and their Beneficiaries shall revert
+to the Employer. 12.7 Limitations Applicable to Certain Highly Paid Participants
+Notwithstanding any provision in the Plan to the contrary, in any Plan Year the
+annual payments to a Participant who is among the 25 "highly compensated
+employees" (as defined in Code § 414(q)) with the greatest Compensation for the
+Plan Year shall not exceed the amount which would be payable to such Participant
+in the form of a single life annuity which is the Actuarial Equivalent of the
+sum of the Participant's accrued benefit and other Plan benefits, unless: (a)
+After payment of all Plan benefits to such Participant, the value of the Plan's
+assets equals or exceeds 110% of the value of the Plan's "current liabilities"
+(as defined in Code § 412(1)(7)); or (b) The value of such Participant's Plan
+benefits is less than 1% of the value of the Plan's current liabilities. XII-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens062.jpg]
+ARTICLE XIII MISCELLANEOUS PROVISIONS 13.1 Exclusive Benefit of Participants The
+Trust shall be held for the benefit of all persons who shall be entitled to
+receive payments under the Plan. It shall be prohibited at any time for any part
+of the Trust (other than such part as is required to pay expenses) to be used
+for, or diverted to, purposes other than for the exclusive benefit of
+Participants or their Beneficiaries. 13.2 Plan Not a Contract of Employment The
+Plan is not a contract of Employment, and the terms of Employment of any
+Employee shall not be affected in any way by the Plan or related instruments
+except as specifically provided therein. 13.3 Source of Benefits Benefits under
+the Plan shall be paid or provided for solely from the Trust, and neither the
+Company, an Employer, the Administrator, Trustee or Investment Manager shall
+assume any liability therefor. 13.4 Benefits Not Assignable Benefits provided
+under the Plan may not be assigned or alienated, either voluntarily or
+involuntarily. The preceding sentence shall also apply to the creation,
+assignment or recognition of a right to any benefit payable with respect to a
+Participant pursuant to a "domestic relations order" (as defined in Code §
+4-14(p)) unless such order is determined by the Administrator to be a "qualified
+domestic relations order" (as defined in Code § 414(p)) or, in the case of a
+"domestic relations order" entered before January 1, 1985, if either payment of
+benefits pursuant to the order has commenced as of that date or the
+Administrator decides to treat such order as a "qualified domestic relations
+order" within the meaning of Code § 414(p) even if it does not otherwise qualify
+as such. Exception for Certain Judgments on or after August 5, 1997: Effective
+as of August 5, 1997, the Plan will recognize and comply with an order,
+judgment, decree, or settlement agreement that satisfies the requirements of
+Code § 401(a)(13) (relating to crimes involving the plan or certain civil
+actions relating to breaches of fiduciary duty under ERISA.) 13.5 Domestic
+Relations Orders Any other provision of the Plan to the contrary
+notwithstanding, the Administrator shall have all powers necessary with respect
+to the Plan for the proper operation of Code § 414(p) with respect to "qualified
+domestic relations orders" (or "domestic relations orders" treated as such)
+referred to in Section 13.4, including, but not limited to, the power to
+establish all necessary or appropriate procedures, to authorize the
+establishment of new accounts with such assets and subject to such restrictions
+as the Administrator may deem appropriate, and the Administrator may decide upon
+and direct appropriate distributions therefrom. A domestic relations order that
+otherwise satisfies the requirements for a qualified domestic relations order
+(QDRO) will not fail to be a QDRO: (i) solely because the order is issued after,
+or XIII-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens063.jpg]
+revises, another domestic relations order or QDRO; or (ii) solely because of the
+time at which the order is issued, including issuance after the annuity starting
+date or after the Participant's death. 13.6 Benefits Payable to Minors,
+Incompetents and Others In the event any benefit is payable to a minor or an
+incompetent or to a person otherwise under a legal disability, or who, in the
+sole discretion of the Administrator, is by reason of advanced age, illness or
+other physical or mental incapacity incapable of handling and disposing of his
+property, or otherwise is in such position or condition that the Administrator
+believes that he could not utilize the benefit for his support or welfare, the
+Administrator shall have discretion to apply the whole or any part of such
+benefit directly to the care, comfort, maintenance, support, education or use of
+such person, or pay the whole or any part of such benefit to the parent of such
+person, the guardian, committee, conservator or other legal representative,
+wherever appointed, of such person, the person with whom such person is
+residing, or to any other person having the care and control of such person. The
+receipt by any such person to whom any such payment on behalf of any Participant
+or Beneficiary is made shall be a sufficient discharge therefor. 13.7 Merger or
+Transfer of Assets The merger or consolidation of the Company with any other
+person, or the transfer of the assets of the Company to any other person, shall
+not constitute a termination of the Plan, if provision is made for the
+continuation of the Plan. The Plan may not merge or consolidate with, or
+transfer any assets or liabilities to, any other plan, unless each Participant
+would (if the Plan then terminated) receive a benefit immediately after the
+merger, consolidation or transfer which is equal to or greater than the benefit
+he would have been entitled to receive immediately before the merger,
+consolidation or transfer (if the Plan had then terminated). The Liberty
+National Life Insurance Company Pension Plan and the Liberty National Life
+Insurance Company Pension Plan for Non-Commissioned Employees were merged with
+and into the Plan, effective as of January 1, 2004 pursuant to Section 13.7 of
+the Plan. 13.8 Participation in the Plan by an Affiliate Section 13.8 was
+amended effective January 1, 2012 to read as follows: Subject to the approval of
+the Board of Directors of the Company, an Affiliate, by duly authorized action
+of its board of directors, may adopt the Plan and determine the classes of its
+Employees who shall be Eligible Employees. Such Affiliate shall make such
+contributions to the Plan on behalf of such Employees as is determined by the
+Company. If no such action is taken, the Eligible Employees and the amount of
+Retirement Benefit shall be determined in accordance with the Plan provisions
+applicable to an Employer. By duly authorized action of its board of directors,
+an Affiliate may terminate its participation in the Plan or withdraw from the
+Plan and the Trust. An Employer other than the Company shall have no power with
+respect to the Plan except as specifically provided by this Section 13.8. XIII-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens064.jpg]
+13.9 Action by Employer Any action required to be taken by an Employer pursuant
+to the terms of the Plan shall be taken by the Board of Directors of the
+Employer or any person or persons duly empowered to exercise the powers of the
+Employer with respect to the Plan. 13.10 Provision of Information For purposes
+of the Plan, each Employee shall execute such forms as may be reasonably
+required by the Administrator and the Employee shall make available to the
+Administrator and the Trustee any information they may reasonably request in
+this regard. 13.11 Controlling Law The Plan is intended to qualify under Code §
+401(a) and to comply with ERISA, and its terms shall be interpreted accordingly.
+Otherwise, to the extent not preempted by ERISA, the laws of the State of
+Alabama shall control the interpretation and performance of the terms of the
+Plan. 13.12 Conditional Restatement Anything in the foregoing to the contrary
+notwithstanding, the Plan has been restated on the express condition that it
+will be considered by the Internal Revenue Service as qualifying under the
+provisions of Code § 401(a) and the Trust qualifying for exemption from taxation
+under Code § 501(a). If the Internal Revenue Service determines that the Plan or
+Trust does not so qualify, the Plan shall be amended or terminated as decided by
+the Company. 13.13 Rules of Construction Masculine pronouns used herein shall
+refer to men or women or both and nouns and pronouns when stated in the singular
+shall include the plural and when stated in the plural shall include the
+singular, unless qualified by the context. Titles of Articles and Sections of
+the Plan are for convenience of reference only and are to be disregarded in
+applying the provisions of the Plan. Any reference in this Plan to an Article or
+Section is to the Article or Section so specified of the Plan. 13.14 USERRA
+Notwithstanding any provisions of the Plan to the contrary, contributions,
+benefits, and service credit with respect to qualified military service will be
+provided in accordance with Code §414(u). In the case of a death or disability
+occurring on or after January 1, 2007, if a Participant dies while performing
+qualified military service (as defined in Code § 414(u)), the survivors of the
+Participant are entitled to any additional benefits (other than benefit accruals
+relating to the period of qualified military service) provided under the Plan as
+if the Participant had resumed and then terminated Employment on account of
+death. An individual receiving a differential wage payment, as defined by Code §
+3401(h)(2), shall be treated as an Employee of the Employer making the payment,
+the differential wage payment shall be treated as compensation, and the Plan
+shall not be treated as failing to meet the requirements of any provision
+described in Code § 414(u)(1)(C) by reason of any contribution or benefit which
+is based on the differential wage payment. XIII-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens065.jpg]
+XIII-4
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens066.jpg]
+ARTICLE XIV MINIMUM RETIREMENT INCOME 14.1 Prior Plans In no case, shall the
+monthly Retirement Benefit for any Participant who was a Participant in either
+the Retirement Plan for Employees of Globe Life and Accident Insurance Company
+and Its Affiliates or the Retirement Plan for Employees of United American
+Insurance Company ("the Prior Plans") whichever is applicable, on December 31,
+1982, be less than (a) below or (b) plus (c), whichever is greater, where: (a)
+Is the monthly normal retirement income which had accrued to such Participant on
+December 31, 1982, under the applicable Prior Plan, which shall be: For the
+prior Globe Retirement Plan, an amount equal to 1/12 of (i) times .0115 times
+(ii) plus (iii) times ((ii) - $5,520) where: (i) Is the Participant's number of
+years of credited service (as defined in such Prior Plan) (with a maximum of
+35); (ii) Is average salary (5 years of highest salary out of last 10 years with
+a maximum of $35,000); (iii) Is the Participant's number of years of credited
+service as defined in such Prior Plan times .02, with a maximum of .3. For the
+prior United American Plan, an amount equal to 1/12 of (i) plus (ii), where: (i)
+Is an amount equal to the number of years of credited service as defined in such
+prior plan (up to 30) multiplied by 1 '/2% of average annual compensation during
+the five consecutive calendar years (of the last 10) of highest average
+compensation; and (ii) Is an amount equal to the number of years of credited
+service after age 40 (up to 18 years) times 1 '/2% of that portion of average
+annual compensation, during the five consecutive calendar years (of the last 10
+calendar years) of highest average compensation, which is in excess of the
+maximum Social Security wage base. (b) Is the normal retirement income accrued
+to the Participants under such Prior Plans on December 31, 1982 pursuant to (a)
+above. (c) Is the additional normal retirement income such Participants could
+have accrued up to December 31, 1988 under either of such Prior Plans, whichever
+is applicable, if such Prior Plans had continued in effect without amendment
+until December 31, 1988. For Participants who were participating in the Liberty
+National Life Insurance Company Pension Plan on April 5, 1982, the amount of
+annual Retirement Benefit commencing on the Normal Retirement Date of any such
+Participant retiring under this Plan after April 5, 1982, shall not be less than
+the amount calculated in (a) or (b) below, (whichever is greater), where: (a) Is
+(i) plus (ii) less (iii), where: XIV-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens067.jpg]
+(i) Applies only to Participants with less than 30 years of Credited Service on
+the anniversary of Employment immediately preceding April 5, 1982, and is 1/12
+of .02 times Final Average Compensation times the number of complete months of
+service for benefit accrual purposes for an Employer participating in this Plan
+from March 6, 1982, through the earlier of the 30th Year of Service for benefit
+accrual purposes, or the date of separation from service; (ii) Is 1/12 of .01
+times Final Average Compensation times the number of complete months of service
+for benefit accrual purposes for an Employer participating in this Plan from
+March 6, 1982, or the 30th Year of Service for benefit accrual purposes, through
+the earlier of the date of separation from service or the 40th Year of Service
+for benefit accrual purposes; (iii) Applies only to Participants with less than
+30 years of Credited Service on the anniversary of Employment immediately
+preceding April 5, 1982, and is the smaller of (x) 1/12 of the Social Security
+Offset Percentage times the Participant's Special Average Earnings times the
+number of complete months of service for benefit accrual purposes for an
+Employer participating in this Plan from March 6, 1982, through the earlier of
+the 35th Year of Service for benefit accrual purposes, or the date of separation
+from service or (y) 50% of the sum of the amounts in (a)(i) plus (a)(ii) but
+substituting Special Average Earnings for Final Average Compensation in those
+formulas. (b) Is (i) plus (ii) less (iii), where: (i) Is 1/12 of .02 times Final
+Average Compensation times the number of complete months of service for benefit
+accrual purposes for an Employer participating in this Plan from April 5, 1982,
+through April 4, 1987; (ii) Is 1/12 of .015 times Final Average Compensation
+times the number of complete months of service for benefit accrual purposes for
+an Employer participating in this Plan from April 5, 1987, through April 4,
+1992; (iii) Is the amount calculated in (a)(iii), above. Any benefit provided
+under this Section 14.1.2 shall be based solely on Credited Service for benefit
+accrual purposes for an Employer participating in this Plan. XIV-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens068.jpg]
+ARTICLE XV TOP-HEAVY PROVISIONS 15.1 Definitions As used in this Article XV,
+each of the following terms shall have the meanings for that term set forth
+below: (a) Defined Benefit Plan means, a plan of the type defined in Code §
+414(j) maintained by the Company or an Affiliate, as applicable. (b) Defined
+Contribution Plan means, a plan of the type defined in Code § 414(i) maintained
+by the Company or an Affiliate, as applicable. (c) Determination Date means, for
+any Plan Year subsequent to the first Plan Year, the last day of the preceding
+Plan Year. For the first Plan Year of the Plan, Determination Date means the
+last day of that year. (d) Determination Period means the Plan Year containing
+the Determination Date and the four preceding Plan Years. (e) Key Employee means
+any Employee or former Employee (including deceased Employee) who at any time
+during the Plan Year that includes the Determination Date was an officer of the
+Employer having annual compensation greater than $130,000 (as adjusted under
+Code § 416(i)(1)), a five-percent owner of the Employer, or a one-percent owner
+of the Employer having an annual compensation of more than $150,000. For this
+purpose, annual compensation means compensation within the meaning of Code §
+415(c)(3). The determination of who is a Key Employee will be made in accordance
+with Code § 416(i)(1) and the applicable Regulations and other guidance of
+general applicability issued thereunder. (f) Limitation Compensation means, for
+an Employee, the Employee's earned income, wages, salaries, fees for
+professional services and other amounts received for personal services actually
+rendered in the course of Employment (including, but not limited to, commissions
+paid salesmen, compensation for services on the basis of a percentage of
+profits, commissions on insurance premiums, tips and bonuses); amounts described
+in Code §§ 104(a)(3), 105(a) and 105(h) to the extent includable in the
+Employee's gross income; amounts described in Code § 105(d) whether or not
+excludable from the Employee's gross income; reimbursed non-deductible moving
+expenses; the value of nonqualified stock options to the extent includable in
+the Employee's gross income in the year of grant; the amount includable in the
+Employee's gross income pursuant to an election under Code § 83(b);
+distributions from an unfunded, non-qualified plan of deferred compensation; and
+excluding the following: (i) Contributions to a plan of deferred compensation
+which are not includible in the Employee's gross income for the taxable year in
+which contributed, or contributions under a "simplified employee pension"
+(within the meaning of Code § 408(k)) to the extent such contributions are
+deductible by the Employee, or any distributions from a plan of deferred
+compensation (other than an unfunded non-qualified plan); XV-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens069.jpg]
+(ii) Amounts realized from the exercise of a non-qualified stock option, or when
+restricted stock (or other property) held by the Employee either becomes freely
+"transferable" or is no longer subject to a "substantial risk of forfeiture"
+(both quoted terms within the meaning of Code § 83(a)); (iii) Amounts realized
+from the sale, exchange or other disposition of stock acquired under a qualified
+stock option; and (iv) Other amounts which received special tax benefits, or
+contributions made (whether or not under a salary reduction agreement) towards
+the purchase of an annuity described in Code § 403(b) (whether or not the
+amounts are actually excludable from the gross income of the Employee).
+Notwithstanding the above provisions, a Participant's Limitation Compensation
+will include any elective deferrals (as defined in Code §402(e)(3)), any amount
+which is contributed or deferred at the election of the Participant and which is
+not includable in the gross income of the Participant by reason of Code §125 or
+Code §457, and a Participant's elective deductions for "qualified transportation
+fringes" under Code §132(0(4). (g) Non-Key Employee means any Employee who is
+not a Key Employee. (h) Permissive Aggregation Group means the Required
+Aggregation Group of plans plus any other plan or plans of the Company or an
+Affiliate which, when considered as a group with the Required Aggregation Group,
+would continue to satisfy the requirements of Code §§ 401(a)(4) and 410. (i)
+Required Aggregation Group means (i) each qualified plan of an Employer in which
+at least one Key Employee participates, and (ii) any other qualified plan of an
+Employer which enables a plan described in clause (i) to meet the requirements
+of Code §§ 401(a)(4) and 410. (j) Super Top-Heavy Plan means the Plan, if any
+Top-Heavy Ratio as determined under the definition of Top-Heavy Plan exceeds
+90%. (k) Top-Heavy Plan means the Plan, if any of the following conditions
+exists: (i) If the Top-Heavy Ratio for the Plan exceeds 60% and the Plan is not
+part of any Required Aggregation Group or Permissive Aggregation Group of plans.
+(ii) If the Plan is a part of a Required Aggregation Group of plans but not part
+of a Permissive Aggregation Group and the Top-Heavy Ratio for the Required
+Aggregation Group of plans exceeds 60%. (iii) If the Plan is a part of a
+Required Aggregation Group and part of a Permissive Aggregation Group of plans
+and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%. (l)
+Top-Heavy Ratio means: (i) If the Company or an Affiliate maintains one or more
+Defined Benefit Plans and the Company or an Affiliate has never maintained any
+defined contribution Plan (including XV-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens070.jpg]
+any "simplified employee pension" within the meaning of Code § 408(k)) which
+during the five-year period ending on the Determination Date has or has had
+account balances, the Top-Heavy Ratio for the Plan alone or for the Required or
+Permissive Aggregation Group, as appropriate, is a fraction, the numerator of
+which is the sum of the present values of accrued benefits under the aggregated
+Defined Benefit Plans of all Key Employees as of the respective Determination
+Date for each plan (including any part of any accrued benefit distributed in the
+five-year period ending on the Determination Date), and the denominator of which
+is the sum of the present values of all accrued benefits under the aggregated
+Defined Benefit Plans as of the respective Determination Date for each plan
+(including any part of any accrued benefit distributed in the five-year period
+ending on the Determination Date) determined in accordance with Code § 416. (ii)
+If the Company or an Affiliate maintains one or more Defined Benefit Plans and
+the Company or an Affiliate maintains or has maintained one or more Defined
+Contribution Plans (including any "simplified employee pension" within the
+meaning of Code § 408(k)) which during the five-year period ending on the
+Determination Date has or has had any account balances, the Top-Heavy Ratio for
+any Required or Permissive Aggregation Group, as appropriate, is a fraction, the
+numerator of which is the sum of the present value of accrued benefits under the
+aggregated Defined Benefit Plans for all Key Employees, determined in accordance
+with (i) above, plus the sum of account balances under the aggregated Defined
+Contribution Plans for all Key Employees as of the respective Determination Date
+for each plan, and the denominator of which is the sum of the present value of
+all accrued benefits under the aggregated Defined Benefit Plans, determined in
+accordance with (i) above, plus the sum of all account balances under the
+aggregated Defined Contribution Plans for all Participants as of the respective
+Determination Date for each plan, all determined in accordance with Code § 416.
+The present values of accrued benefits of an Employee as of the determination
+date shall be increased by the distributions made with respect to the Employee
+under the Plan and any plan aggregated with the Plan under Code § 416(g)(2)
+during the one-year period ending on the Determination Date. The preceding
+sentence shall also apply to distributions under a terminated plan which, had it
+not been terminated, would have been aggregated with the Plan under Code §
+416(g)(2)(A)(i). In the case of a distribution made for a reason other than
+severance from Employment, death, or Disability, this provision shall be applied
+by substituting "five-year period" for "one-year period." (iii) For purposes of
+(i) and (ii) above, the value of account balances and the present value of
+accrued benefits will be determined as of the most recent Valuation Date that
+falls within or ends with the 12-month period ending on the Determination Date,
+except as provided in Code § 416 for the first and second plan year of a Defined
+Benefit Plan. The account balances and accrued benefits of a Participant (1) who
+is a Non-Key Employee but who was a Key Employee in a prior year, or (2) who has
+not been credited with at least one Hour of Service with any Employer at any
+time during the one-year period ending on the Determination Date will be
+disregarded. The calculation of the Top-Heavy Ratio, and the extent to which
+distributions, rollovers, and transfers are taken into account will be made in
+accordance with Code § 416. Deductible employee contributions will not be taken
+into account for purposes of computing the Top-Heavy Ratio. When aggregating
+plans, the value of account balances and accrued benefits will be calculated
+with reference to the respective Determination Dates for the aggregated plans
+that fall within the same calendar year. (iv) Solely for the purpose of
+determining if the Plan, or any other plan included in a Required Aggregation
+Group of which this Plan is a part, is Top-Heavy (within the XV-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens071.jpg]
+meaning of Code § 416(g)) such determination shall be made under (1) the method,
+if any, that uniformly applies for accrual purposes under all plans maintained
+by the Employer, or (2) if there is no such method, as if such benefit accrued
+not more rapidly than the slowest accrual rate permitted under the fractional
+accrual rate of Code § 411(b)(1)(C). (m) Valuation Date means, the date as of
+which account balances, or accrued benefits are valued for purposes of
+calculating the Top-Heavy Ratio. 15.2 Top Heavy Rules If the Plan is determined
+to be a Top-Heavy Plan or a Super Top-Heavy Plan as of any Determination Date,
+then it shall be subject to the rules set forth in this Article XV, beginning
+with the first Plan Year commencing after such Determination Date. Even if, as
+of a subsequent Determination Date, the Plan is determined to no longer be a
+Top-Heavy Plan or a Super Top-Heavy Plan, the rules set forth in these Sections
+will continue to apply. 15.3 Compensation If the Plan is a Top-Heavy Plan or a
+Super Top-Heavy Plan, Compensation for the purpose of this Plan shall be limited
+to the first $150,000 (or such larger amounts as may be prescribed for the Plan
+Year involved pursuant to Code § 416(d)(2)) of the amount that would otherwise
+have been Compensation. 15.4 Benefit Except as provided in subparagraphs (a) and
+(b) below, for any Plan Year in or after which the Plan is a Top-Heavy Plan,
+each Participant who is a Non-Key Employee and has completed one Year of Service
+will accrue a Retirement Benefit (to be provided solely by Employer
+contributions) and expressed as a single life annuity commencing at normal
+retirement age (within the meaning of Code § 411(a)(8)) of not less than 2% of
+his or her average Limitation Compensation for the five consecutive years for
+which the Participant had the highest Limitation Compensation. The aggregate
+Limitation Compensation for the years during such five-year period in which the
+Participant was credited with one Year of Service will be divided by the number
+of such years in order to determine average Limitation Compensation. The minimum
+accrual is determined without regard to any Social Security contribution. The
+minimum accrual applies even though under other Plan provisions the Participant
+would not otherwise be entitled to receive an accrual, or would have received a
+lesser accrual for the Plan Year. The suspension of benefits provisions of this
+Plan shall not apply to the minimum benefits hereunder. (a) No additional
+benefit accruals shall be provided pursuant to 15.4 above to the extent that the
+total accruals on behalf of the Participant attributable to Employer
+contributions will provide a Retirement Benefit expressed as a single life
+annuity commencing at normal retirement age (within the meaning of Code §
+411(a)(8)) that equals or exceeds 20% of the Participant's highest average
+Limitation Compensation for the five consecutive years for which the Participant
+had the highest Limitation Compensation. All accruals of Employer derived
+benefits, whether or not attributable to years for which the Plan is a Top-Heavy
+Plan, may be used in computing whether the minimum accrual requirement of the
+preceding sentence is satisfied. XV-4
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens072.jpg]
+(b) The provision in 15.4 above shall not apply to any Participant to the extent
+that the Participant is covered under any other plan or plans of an Employer and
+the Employer has provided in that plan that the minimum allocation or benefit
+requirement applicable to this Top-Heavy Plan will be met in the other plan or
+plans. (c) For purposes of satisfying the minimum benefit requirements of Code §
+416(c)(1) and the Plan, in determining Years of Service with the Employer, any
+service with the Employer shall be disregarded to the extent that such service
+occurs during a Plan Year when the Plan benefits (within the meaning of Code §
+410(b)) no Key Employee or former Key Employee. 15.5 Vesting Beginning with the
+Plan Year in which this Plan is Top-Heavy, the following vesting schedule will
+apply: Completed Years of Vesting Service Vested Percentage 2 20% 3 40% 4 60% 5
+100% 15.6 Miscellaneous In the event that any provision of this Article XV is no
+longer required to qualify the Plan under the Code, then such provision shall
+thereupon be void without the necessity of further amendment of the Plan. XV-5
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens073.jpg]
+ARTICLE XVI BENEFIT RESTRICTIONS 16.1 Limitations Applicable If the Plan's
+Adjusted Funding Target Attainment Percentage Is Less Than 80 Percent or If the
+Plan Sponsor Is In Bankruptcy: (a) Limitations Applicable If the Plan's Adjusted
+Funding Target Attainment Percentage Is Less Than 80 Percent, But Not Less Than
+60 Percent: Notwithstanding any other provisions of the Plan, if the Plan's
+adjusted funding target attainment percentage for a Plan Year is less than 80
+percent (or would be less than 80 percent to the extent described in Section
+16.1(a)(ii)) but is not less than 60 percent, then the limitations set forth in
+Section 16.1(a)(i) apply. (i) 50 Percent Limitation on Single Sum Payments,
+Other Accelerated Forms of Distribution, and Other Prohibited Payments: A
+Participant or Beneficiary is not permitted to elect, and the Plan shall not
+pay, a single sum payment or other optional form of benefit that includes a
+prohibited payment with an annuity starting date on or after the applicable
+section 436 measurement date, and the Plan shall not make any payment for the
+purchase of an irrevocable commitment from an insurer to pay benefits or any
+other payment or transfer that is a prohibited payment, unless the present value
+of the portion of the benefit that is being paid in a prohibited payment does
+not exceed the lesser of: (1) 50 % of the present value of the benefit payable
+in the optional form of benefit that includes the prohibited payment; or (2) 100
+% of the PBGC maximum benefit guarantee amount (as defined in Regulation §
+1.436-1(d)(3)(iii)(C)). The limitation set forth in this Section 16.1(a)(i) does
+not apply to any payment of a benefit which under Code § 411(a)(11) may be
+immediately distributed without the consent of the Participant. If an optional
+form of benefit that is otherwise available under the terms of the Plan is not
+available to a Participant or Beneficiary as of the annuity starting date
+because of the application of the requirements of this Section 16.1(a)(i), the
+Participant or Beneficiary is permitted to elect to bifurcate the benefit into
+unrestricted and restricted portions (as described in Regulation §
+1.436-1(d)(3)(iii)(D)). The Participant or Beneficiary may also elect any other
+optional form of benefit otherwise available under the Plan at that annuity
+starting date that would satisfy the 50 percent/PBGC maximum benefit guarantee
+amount limitation described in this Section 16.1(a)(i), or may elect to defer
+the benefit in accordance with any general right to defer commencement of
+benefits under the Plan. During a period when Section 16.1(a)(i) applies to the
+Plan, Participants and beneficiaries are permitted to elect payment in any
+optional form of benefit otherwise available under the Plan that provides for
+the current payment of the unrestricted portion of the benefit (as described in
+Regulation § 1.436-1(d)(3)(iii)(D)), with a delayed commencement for the
+restricted portion of the benefit (subject to other applicable qualification
+requirements, such as Code §§ 411(a)(11) and 401(a)(9)). (ii) Plan Amendments
+Increasing Liability for Benefits: No amendment to the Plan that has the effect
+of increasing liabilities of the Plan by reason of increases in benefits,
+establishment of new benefits, changing the rate of benefit accrual, or changing
+the rate at which benefits become nonforfeitable shall take effect in a Plan
+Year if the adjusted funding target attainment percentage for the Plan Year is:
+XVI-1
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens074.jpg]
+(1) Less than 80 %; or (2) 80 % or more, but would be less than 80 percent if
+the benefits attributable to the amendment were taken into account in
+determining the adjusted funding target attainment percentage. The limitation
+set forth in this Section 16.1(a)(ii) does not apply to any amendment to the
+Plan that provides a benefit increase under a Plan formula that is not based on
+compensation, provided that the rate of such increase does not exceed the
+contemporaneous rate of increase in the average wages of Participants covered by
+the amendment. (b) Less Than 60 Percent: Notwithstanding any other provisions of
+the Plan, if the Plan's adjusted funding target attainment percentage for a Plan
+Year is less than 60 percent (or would be less than 60 percent to the extent
+described in Section 16.1(b)(ii)), then the limitations in Section 16.1(b)(i)
+apply. (i) Single Sums, Other Accelerated Forms of Distribution, and Other
+Prohibited Payments Not Permitted: A Participant or Beneficiary is not permitted
+to elect, and the Plan shall not pay, a single sum payment or other optional
+form of benefit that includes a prohibited payment with an annuity starting date
+on or after the applicable section 436 measurement date, and the Plan shall not
+make any payment for the purchase of an irrevocable commitment from an insurer
+to pay benefits or any other payment or transfer that is a prohibited payment.
+The limitation set forth in this Section 16.1(b)(i) does not apply to any
+payment of a benefit which under Code § 411(a)(11) may be immediately
+distributed without the consent of the Participant. (ii) Shutdown Benefits and
+Other Unpredictable Contingent Event Benefits Not Permitted to Be Paid: An
+unpredictable contingent event benefit with respect to an unpredictable
+contingent event occurring during a Plan Year shall not be paid if the adjusted
+funding target attainment percentage for the Plan Year is: (1) Less than 60 %;
+or (2) 60 % or more, but would be less than 60 % if the adjusted funding target
+attainment percentage were redetermined applying an actuarial assumption that
+the likelihood of occurrence of the unpredictable contingent event during the
+Plan Year is 100 %. (iii) Benefit Accruals Frozen: Benefit accruals under the
+Plan shall cease as of the applicable section 436 measurement date. In addition,
+if the Plan is required to cease benefit accruals under this Section
+16.1(b)(iii), then the Plan is not permitted to be amended in a manner that
+would increase the liabilities of the Plan by reason of an increase in benefits
+or establishment of new benefits. (c) Limitations Applicable If the Plan Sponsor
+Is In Bankruptcy: Notwithstanding any other provisions of the Plan, a
+Participant or Beneficiary is not permitted to elect, and the Plan shall not
+pay, a single sum payment or other optional form of benefit that includes a
+prohibited payment with an annuity starting date that occurs during any period
+in which the Plan sponsor is a debtor in a case under title 11, United States
+Code, or similar Federal or State law, except for payments made within a Plan
+Year with an annuity starting date that occurs on or after the date on which the
+Plan's enrolled actuary certifies that the Plan's adjusted funding target
+attainment percentage for that Plan XVI-2
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens075.jpg]
+Year is not less than 100 percent. In addition, during such period in which the
+Plan sponsor is a debtor, the Plan shall not make any payment for the purchase
+of an irrevocable commitment from an insurer to pay benefits or any other
+payment or transfer that is a prohibited payment, except for payments that occur
+on a date within a Plan Year that is on or after the date on which the Plan's
+enrolled actuary certifies that the Plan's adjusted funding target attainment
+percentage for that Plan Year is not less than 100 percent. The limitation set
+forth in this Section 16.1(c) does not apply to any payment of a benefit which
+under Code § 411(a)(11) may be immediately distributed without the consent of
+the Participant. 16.2 Provisions Applicable After Limitations Cease to Apply:
+(a) Resumption of Prohibited Payments: If a limitation on prohibited payments
+under Section 16.1(a)(i), Section 16.1(b)(i), or Section 16.1(c) applied to the
+Plan as of a section 436 measurement date, but that limit no longer applies to
+the Plan as of a later section 436 measurement date, then that limitation does
+not apply to benefits with annuity starting dates that are on or after that
+later section 436 measurement date. In addition, after the section 436
+measurement date on which the limitation on prohibited payments under Section
+16.1(a)(i) ceases to apply to the Plan, any Participant or Beneficiary who had
+an annuity starting date within the period during which that limitation applied
+to the Plan is permitted to make a new election (within 90 days after the
+section 436 measurement date on which the limit ceases to apply or, if later, 30
+days after receiving notice of the right to make such election) under which the
+form of benefit previously elected is modified at a new annuity starting date to
+be changed to a single sum payment for the remaining value of the Participant or
+Beneficiary's benefit under the Plan, subject to the other rules in this Article
+XVI and applicable requirements of Code § 401(a), including spousal consent. In
+addition, after the section 436 measurement date on which the limitation on
+prohibited payments under Section 16.1(b)(i) ceases to apply to the Plan, any
+Participant or Beneficiary who had an annuity starting date within the period
+during which that limitation applied to the Plan is permitted to make a new
+election (within 90 days after the section 436 measurement date on which the
+limit ceases to apply or, if later, 30 days after receiving notice of the right
+to make such election) under which the form of benefit previously elected is
+modified at a new annuity starting date to be changed to a single sum payment
+for the remaining value of the Participant's or Beneficiary's benefit under the
+Plan, subject to the other rules in this Article XVI (including Section
+16.1(a)(i)) and applicable requirements of Code § 401(a), including spousal
+consent. (iv) Special Rules Relating to Unpredictable Contingent Event Benefits
+and Plan Amendments Increasing Benefit Liability: During any period in which
+none of the presumptions under Section 16.5(a) apply to the Plan and the Plan's
+enrolled actuary has not yet issued a certification of the Plan's adjusted
+funding target attainment percentage for the Plan Year, the limitations under
+Section 16.1(a)(ii) and Section 16.1(b)(ii) shall be based on the inclusive
+presumed adjusted funding target attainment percentage for the Plan, calculated
+in accordance with the rules of Regulation § 1.436- 1(g)(2)(iii). (c) Special
+Rules Under PRA 2010: (i) Payments Under Social Security Leveling Options: For
+purposes of determining whether the limitations under Section 16.1(a)(i) or
+16.1(b)(i) apply to payments under a social security leveling option, within the
+meaning of Code § 436(j)(3)(C)(i), the adjusted funding XVI-3
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens076.jpg]
+target attainment percentage for a Plan Year shall be determined in accordance
+with the "Special Rule for Certain Years" under Code § 436(j)(3) and any
+Regulation or other published guidance thereunder issued by the Internal Revenue
+Service. (ii) Limitation on Benefit Accruals: For purposes of determining
+whether the accrual limitation under Section 16.1(b)(iii) applies to the Plan,
+the adjusted funding target attainment percentage for a Plan Year shall be
+determined in accordance with the "Special Rule for Certain Years" under Code §
+436(j)(3) (except as provided under section 203(b) of the Preservation of Access
+to Care for Medicare Beneficiaries and Pension Relief Act of 2010, if
+applicable). (d) Interpretation of Provisions: The limitations imposed by this
+section of the Plan shall be interpreted and administered in accordance with
+Code § 436 and Regulation § 1.436-1. 16.6 Definitions: The definitions in the
+following Regulations apply for purposes of Sections 16.1 through 16.5: §
+1.436-1(j)(1) defining adjusted funding target attainment percentage; §
+1.436-1(j)(2) defining annuity starting date; § 1.436-1(j)(6) defining
+prohibited payment; § 1.436- 1(j)(8) defining section 436 measurement date; and
+§ 1.436-1(j)(9) defining an unpredictable contingent event and an unpredictable
+contingent event benefit. 16.7 Effective Date: The rules in Sections 16.1
+through 16.6 are effective for Plan Years beginning after December 31, 2007.
+XVI-4
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[amendedandrestatedglpens077.jpg]
+IN WITNESS WHEREOF, GLOBE LIFE INC. has caused this Plan to be amended and
+restated, on this the 4th day of November, 2020, effective generally as of
+January 1, 2020 (except as otherwise provided herein). GLOBE LIFE INC. By: /s/
+Frank M. Svoboda Its: EVP and Chief Financial Officer Attest: By: /s/
+Christopher T. Moore Its: Corporate SVP, Associate Counsel and Corporate
+Secretary
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+Exhibit 10.3
+
+Execution Version
+
+AMENDED AND RESTATED
+
+LIMITED PARTNERSHIP AGREEMENT
+
+OF
+
+NREF OP I, L.P.
+
+a Delaware limited partnership
+
+ 
+
+ 
+
+THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
+ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY
+STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE
+OF SUCH REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE PARTNERSHIP AN
+OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE PARTNERSHIP, TO
+THE EFFECT THAT THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED
+WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE
+SECURITIES OR “BLUE SKY” LAWS.
+
+ 
+
+AMENDED AND RESTATED AS OF FEBRUARY 11, 2020
+
+ 
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+ 
+
+Page
+
+ 
+
+ARTICLE 1. DEFINED TERMS
+
+ 
+
+1
+
+ARTICLE 2. ORGANIZATIONAL MATTERS
+
+ 
+
+12
+
+ 
+
+Section 2.1. Continuation
+
+ 
+
+12
+
+ 
+
+Section 2.2. Name
+
+ 
+
+12
+
+ 
+
+Section 2.3. Registered Office and Agent; Principal Office
+
+ 
+
+13
+
+ 
+
+Section 2.4. Power of Attorney
+
+ 
+
+13
+
+ 
+
+Section 2.5. Term
+
+ 
+
+14
+
+ 
+
+Section 2.6. Admission of Partners
+
+ 
+
+14
+
+ARTICLE 3. PURPOSE
+
+ 
+
+15
+
+ 
+
+Section 3.1. Purpose and Business
+
+ 
+
+15
+
+ 
+
+Section 3.2. Powers
+
+ 
+
+15
+
+ 
+
+Section 3.3. Representations and Warranties by the Parties
+
+ 
+
+15
+
+ 
+
+Section 3.4. Not Publicly Traded
+
+ 
+
+17
+
+ARTICLE 4. CAPITAL CONTRIBUTIONS
+
+ 
+
+18
+
+ 
+
+Section 4.1. Capital Contributions of the Partners
+
+ 
+
+18
+
+ 
+
+Section 4.2. Issuances of Additional Partnership Interests
+
+ 
+
+18
+
+ 
+
+Section 4.3. Additional Funds
+
+ 
+
+18
+
+ 
+
+Section 4.4. Preemptive Rights
+
+ 
+
+19
+
+ 
+
+Section 4.5. No Interest
+
+ 
+
+19
+
+ARTICLE 5. DISTRIBUTIONS
+
+ 
+
+20
+
+ 
+
+Section 5.1. Requirement and Characterization of Distributions
+
+ 
+
+20
+
+ 
+
+Section 5.2. Amounts Withheld
+
+ 
+
+20
+
+ 
+
+Section 5.3. Distributions Upon Liquidation
+
+ 
+
+20
+
+ 
+
+Section 5.4. Restricted Distributions
+
+ 
+
+20
+
+ 
+
+Section 5.5. Compliance with REIT Requirements
+
+ 
+
+20
+
+ARTICLE 6. ALLOCATIONS
+
+ 
+
+21
+
+ 
+
+Section 6.1. Allocations For Capital Account Purposes
+
+ 
+
+21
+
+ARTICLE 7. MANAGEMENT AND OPERATIONS OF BUSINESS
+
+ 
+
+22
+
+ 
+
+Section 7.1. Management
+
+ 
+
+22
+
+ 
+
+Section 7.2. Certificate of Limited Partnership
+
+ 
+
+25
+
+ 
+
+Section 7.3. Restrictions on General Partner Authority
+
+ 
+
+26
+
+ 
+
+Section 7.4. Reimbursement of the General Partner and the Company
+
+ 
+
+26
+
+ 
+
+Section 7.5. Outside Activities of the General Partner
+
+ 
+
+26
+
+ 
+
+Section 7.6. Contracts with Affiliates
+
+ 
+
+27
+
+ 
+
+Section 7.7. Indemnification
+
+ 
+
+27
+
+ 
+
+Section 7.8. Liability of the General Partner
+
+ 
+
+29
+
+i
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+(continued)
+
+Page
+
+ 
+
+Section 7.9. Other Matters Concerning the General Partner
+
+ 
+
+30
+
+ 
+
+Section 7.10. Title to Partnership Assets
+
+ 
+
+30
+
+ 
+
+Section 7.11. Reliance by Third Parties
+
+ 
+
+31
+
+ARTICLE 8. RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
+
+ 
+
+31
+
+ 
+
+Section 8.1. Limitation of Liability
+
+ 
+
+31
+
+ 
+
+Section 8.2. Management of Business
+
+ 
+
+32
+
+ 
+
+Section 8.3. Outside Activities of Limited Partners
+
+ 
+
+32
+
+ 
+
+Section 8.4. Return of Capital
+
+ 
+
+32
+
+ 
+
+Section 8.5. Rights of Limited Partners Relating to the Partnership
+
+ 
+
+33
+
+ 
+
+Section 8.6. Redemption Right
+
+ 
+
+34
+
+ARTICLE 9. BOOKS, RECORDS, ACCOUNTING AND REPORTS
+
+ 
+
+36
+
+ 
+
+Section 9.1. Records and Accounting
+
+ 
+
+36
+
+ 
+
+Section 9.2. Fiscal Year
+
+ 
+
+36
+
+ 
+
+Section 9.3. Reports
+
+ 
+
+36
+
+ARTICLE 10.   TAX MATTERS
+
+ 
+
+37
+
+ 
+
+Section 10.1. Preparation of Tax Returns
+
+ 
+
+37
+
+ 
+
+Section 10.2. Tax Elections
+
+ 
+
+37
+
+ 
+
+Section 10.3. Partnership Representative
+
+ 
+
+38
+
+ 
+
+Section 10.4. Withholding
+
+ 
+
+39
+
+ARTICLE 11. TRANSFERS AND WITHDRAWALS
+
+ 
+
+40
+
+ 
+
+Section 11.1. Transfer
+
+ 
+
+40
+
+ 
+
+Section 11.2. Transfer of General Partner Interest
+
+ 
+
+40
+
+ 
+
+Section 11.3. Limited Partners’ Rights to Transfer
+
+ 
+
+41
+
+ 
+
+Section 11.4. Substituted Limited Partners
+
+ 
+
+43
+
+ 
+
+Section 11.5. Assignees
+
+ 
+
+43
+
+ 
+
+Section 11.6. Drag-Along Rights
+
+ 
+
+44
+
+ 
+
+Section 11.7. General Provisions
+
+ 
+
+45
+
+ARTICLE 12. ADMISSION OF PARTNERS
+
+ 
+
+46
+
+ 
+
+Section 12.1. Admission of Successor General Partner
+
+ 
+
+46
+
+ 
+
+Section 12.2. Admission of Additional Limited Partners
+
+ 
+
+46
+
+ 
+
+Section 12.3. Amendment of Agreement and Certificate of Limited Partnership
+
+ 
+
+47
+
+ARTICLE 13. DISSOLUTION, LIQUIDATION AND TERMINATION
+
+ 
+
+47
+
+ 
+
+Section 13.1. Dissolution
+
+ 
+
+47
+
+ 
+
+Section 13.2. Winding Up
+
+ 
+
+48
+
+ 
+
+Section 13.3. Deficit Capital Account Restoration Obligation
+
+ 
+
+49
+
+ 
+
+Section 13.4. Deemed Contribution and Distribution
+
+ 
+
+50
+
+ 
+
+Section 13.5. Rights of Limited Partners
+
+ 
+
+50
+
+ 
+
+Section 13.6. Notice of Dissolution
+
+ 
+
+50
+
+ii
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+(continued)
+
+Page
+
+ 
+
+Section 13.7. Termination of Partnership and Cancellation of Certificate of
+Limited Partnership
+
+ 
+
+50
+
+ 
+
+Section 13.8. Reasonable Time for Winding Up
+
+ 
+
+50
+
+ 
+
+Section 13.9. Waiver of Partition
+
+ 
+
+51
+
+ARTICLE 14. AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
+
+ 
+
+51
+
+ 
+
+Section 14.1. Amendment of Partnership Agreement
+
+ 
+
+51
+
+ 
+
+Section 14.2. Meetings of the Partners
+
+ 
+
+51
+
+ARTICLE 15. GENERAL PROVISIONS
+
+ 
+
+52
+
+ 
+
+Section 15.1. Addresses and Notice
+
+ 
+
+52
+
+ 
+
+Section 15.2. Titles and Captions
+
+ 
+
+52
+
+ 
+
+Section 15.3. Pronouns and Plurals
+
+ 
+
+53
+
+ 
+
+Section 15.4. Further Action
+
+ 
+
+53
+
+ 
+
+Section 15.5. Binding Effect
+
+ 
+
+53
+
+ 
+
+Section 15.6. Creditors
+
+ 
+
+53
+
+ 
+
+Section 15.7. Waiver
+
+ 
+
+53
+
+ 
+
+Section 15.8. Counterparts
+
+ 
+
+54
+
+ 
+
+Section 15.9. Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial
+
+ 
+
+54
+
+ 
+
+Section 15.10. Invalidity of Provisions
+
+ 
+
+54
+
+ 
+
+Section 15.11. Entire Agreement
+
+ 
+
+54
+
+ 
+
+Section 15.12. Legal Counsel Relationships
+
+ 
+
+55
+
+ 
+
+Exhibit A
+
+–
+
+Partners’ Contributions and Partnership Interests  
+
+ 
+
+A-1
+
+Exhibit B
+
+–
+
+Capital Account Maintenance  
+
+ 
+
+B-1
+
+Exhibit C
+
+–
+
+Special Allocation Rules  
+
+ 
+
+C-1
+
+Exhibit D
+
+–
+
+Notice of Redemption  
+
+ 
+
+D-1
+
+Exhibit E
+
+–
+
+Constructive Ownership Definition  
+
+ 
+
+E-1
+
+Exhibit F
+
+–
+
+Schedule of Partner’s Ownership with Respect to Tenants  
+
+ 
+
+F-1
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+iii
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+AMENDED AND RESTATED
+
+LIMITED PARTNERSHIP AGREEMENT
+OF
+NREF OP I, L.P.
+
+THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF NREF OP I, L.P. (as
+now or hereafter amended, restated, modified, supplemented, or replaced, this
+“Agreement”), dated as of February 11, 2020, is entered into by and among
+NexPoint Real Estate Finance Operating Partnership, L.P., a Delaware limited
+partnership (the “General Partner”), the Persons (as defined below) whose names
+are from time to time set forth on Exhibit A attached hereto (as it may be
+amended from time to time), and the parties to the original agreement of limited
+partnership of NREF OP I, L.P. dated as of October 8, 2019 (the “Prior
+Agreement”).
+
+WHEREAS, the limited partnership was formed on October 8, 2019 and the Prior
+Agreement was entered into between Brian Mitts, as general partner (the “Initial
+General Partner”), and Matthew McGraner, as the sole limited partner (the
+“Initial Limited Partner”); and
+
+WHEREAS, the General Partner and the Persons (as defined below) that are party
+hereto from time to time and whose names are set forth on Exhibit A attached
+hereto (as it may be amended from time to time) desire to: (a) enter into this
+Amended and Restated Limited Partnership Agreement of NREF OP I, L.P. (the
+“Partnership”); (b) effect the withdrawal of Brian Mitts as the general partner
+of the Partnership and Matthew McGraner as a limited partner of the Partnership;
+(c) effect the admission of the General Partner as the general partner of the
+Partnership; (d) effect the admission of the Persons whose names are set forth
+on Exhibit A attached hereto as Limited Partners of the Partnership; (e)
+continue the Partnership on the terms set forth herein; and (f) continue the
+operation of the Partnership under the name NREF OP I, L.P.
+
+NOW THEREFORE, in consideration of the mutual covenants herein contained, and
+other valuable consideration, the receipt and sufficiency of which is hereby
+acknowledged, the parties hereto hereby agree as follows:
+
+ARTICLE 1.
+
+DEFINED TERMS
+
+The following definitions shall be for all purposes, unless otherwise clearly
+indicated to the contrary, applied to the terms used in this Agreement.
+
+“704(c) Value” of any Contributed Property means the fair market value of such
+property or other consideration at the time of contribution, as determined by
+the General Partner, following the direction and approval of the Board of
+Directors, using such reasonable method of valuation as it may adopt.  Subject
+to Exhibit B hereof, the General Partner shall, following the direction and
+approval of the Board of Directors, use such method as it deems reasonable and
+appropriate to allocate the aggregate of the 704(c) Values of Contributed
+Properties in a single or integrated transaction among the separate properties
+on a basis proportional to their respective fair market values.
+
+1
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Act” means the Delaware Revised Uniform Limited Partnership Act, 6 Del. C.
+§17-101, et seq., as it may be amended from time to time, and any successor to
+such statute.
+
+“Additional Funds” has the meaning set forth in Section 4.3(A).
+
+“Additional Limited Partner” means a Person admitted to the Partnership as a
+Limited Partner pursuant to Section 12.2 hereof and who is shown as such on the
+books and records of the Partnership.
+
+“Adjusted Capital Account” means the Capital Account maintained for each Partner
+as of the end of each Partnership taxable year (i) increased by any amounts
+which such Partner is obligated to restore pursuant to any provision of this
+Agreement or is deemed to be obligated to restore pursuant to the penultimate
+sentences of Regulations Sections 1.704-2(g)(1) and 1.704‑2(i)(5) and (ii)
+decreased by the items described in Regulations Sections
+1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
+1.704-1(b)(2)(ii)(d)(6).  The foregoing definition of Adjusted Capital Account
+is intended to comply with the provisions of Regulations Section
+1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
+
+“Adjusted Capital Account Deficit” means, with respect to any Partner, the
+deficit balance, if any, in such Partner’s Adjusted Capital Account as of the
+end of the relevant Partnership taxable year.
+
+“Adjusted Property” means any property, the Carrying Value of which has been
+adjusted pursuant to Exhibit B hereof.
+
+“Adjustment Event” has the meaning set forth in Section 4.6(A)(1) hereof.
+
+“Affiliate” means, with respect to any Person, any Person directly or indirectly
+controlling, controlled by or under common control with such Person. For
+purposes of this definition, “control” when used with respect to any Person
+means the possession, directly or indirectly, of the power to direct or cause
+the direction of the management and policies of such Person, whether through the
+ownership of voting securities, by contract or otherwise, and the terms
+“controlling” and “controlled” have meanings correlative to the foregoing.
+
+“Agreed Value” means (i) in the case of any Contributed Property as of the time
+of its contribution to the Partnership, the 704(c) Value of such property,
+reduced by any liabilities either assumed by the Partnership upon such
+contribution or to which such property is subject when contributed, and (ii) in
+the case of any property distributed to a Partner by the Partnership, the
+Partnership’s Carrying Value of such property at the time such property is
+distributed, reduced by any indebtedness either assumed by such Partner upon
+such distribution or to which such property is subject at the time of
+distribution as determined under Section 752 of the Code and the Regulations
+thereunder.
+
+“Agreement” has the meaning set forth in the recitals hereto.
+
+“Aggregate Consideration” has the meaning set forth in Section 11.6(C).
+
+“Approved Sale” means a Sale of the Partnership which is approved by the
+Partners holding, collectively, more than 50% of the issued and outstanding
+Partnership Interests, subject to the direction and approval of the Board of
+Directors.
+
+2
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Approving Partners” has the meaning set forth in Section 11.6(A).
+
+“Assignee” means a Person to whom all or a portion of a Partnership Interest has
+been transferred in a manner permitted under this Agreement, but who has not
+become a Substituted Limited Partner, and who has the rights set forth in
+Section 11.5.
+
+“Available Cash” means, with respect to any period for which such calculation is
+being made, all cash balances of the Partnership net of the Partnership’s
+working capital needs, anticipated capital expenditures, operating expenses,
+debt service requirements and other necessary reserves including with respect to
+contingencies or commitments, each as determined by the General Partner,
+following the direction and approval of the Board of Directors.
+
+“Bankruptcy Event” shall mean, with respect to any Person, such Person (a) is
+insolvent, or is generally unable to pay its debts as they become due, or admits
+in writing its inability to pay its debts as they become due, or makes a general
+assignment for the benefit of its creditors or (b) becomes the subject of a
+bankruptcy or insolvency proceeding, or has had a receiver, conservator,
+trustee, administrator, custodian, assignee for the benefit of creditors or
+similar person charged with the reorganization or liquidation of its business
+appointed for it, or has taken any action in furtherance of, or indicating its
+consent to, approval of, or acquiescence in, any such proceeding or appointment.
+
+“Board of Directors” means the Board of Directors of the Company.
+
+“Book-Tax Disparities” means, with respect to any item of Contributed Property
+or Adjusted Property, as of the date of any determination, the difference
+between the Carrying Value of such Contributed Property or Adjusted Property and
+the adjusted basis thereof for federal income tax purposes as of such date.  A
+Partner’s share of the Partnership’s Book-Tax Disparities in all of its
+Contributed Property and Adjusted Property will be reflected by the difference
+between such Partner’s Capital Account balance as maintained pursuant to Exhibit
+B and the hypothetical balance of such Partner’s Capital Account computed as if
+it had been maintained strictly in accordance with federal income tax accounting
+principles.
+
+“Business Day” means any day except a Saturday, Sunday or other day on which
+commercial banks in New York, New York are authorized or required by law to
+close.
+
+“Capital Account” means the Capital Account maintained for a Partner pursuant to
+Exhibit B hereof.
+
+“Capital Contribution” means, with respect to any Partner, any cash, cash
+equivalents or the Agreed Value of Contributed Property which such Partner
+contributes or is deemed to contribute to the Partnership.
+
+“Carrying Value” means (i) with respect to a Contributed Property or Adjusted
+Property, the 704(c) Value of such property, reduced (but not below zero) by all
+Depreciation with respect to such property charged to the Partners’ Capital
+Accounts following the contribution of or adjustment with respect to such
+property; and (ii) with respect to any other Partnership property, the adjusted
+basis of such property for federal income tax purposes, all as of the time of
+determination.  The Carrying Value of any property shall be adjusted from time
+to time in accordance with Exhibit B hereof, and to reflect changes, additions
+or other adjustments to the Carrying Value for dispositions and acquisitions of
+Partnership properties, as deemed appropriate by the General Partner, following
+the direction and approval of the Board of Directors.
+
+3
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Cash Amount” means an amount of cash equal to the Value on the Valuation Date
+of the OP Unit Amount.
+
+“Certificate” means the Certificate of Limited Partnership of the Partnership as
+filed in the office of the Delaware Secretary of State on October 8, 2019, as
+amended, restated and/or supplemented from time to time in accordance with the
+terms hereof and the Act.
+
+“Charter” means the Articles of Amendment and Restatement of the Company filed
+with the State Department of Assessments and Taxation of the State of Maryland
+on February 3, 2020, as amended, restated and/or supplemented from time to time.
+
+“Code” means the Internal Revenue Code of 1986, as amended and in effect from
+time to time, as interpreted by the applicable regulations thereunder.  Any
+reference herein to a specific section or sections of the Code shall be deemed
+to include a reference to any corresponding provision of future law.
+
+“Common Units” means the Partnership Units, other than any other series of units
+of Limited Partner Interest issued in the future and designated as preferred or
+otherwise different from the Common Units, such difference including, but not
+limited to, with respect to the payment of distributions, including
+distributions upon liquidation.
+
+“Company” means NexPoint Real Estate Finance, Inc., a Maryland corporation.
+
+“Company Common Unit Economic Balance” means (i) the Economic Capital Account
+Balance of the Company but only to the extent attributable to the Company’s
+ownership of Common Units and computed on a hypothetical basis after taking into
+account all allocations through the date on which any allocation is made under
+Section 1(H) of Exhibit C divided by (ii) the number of the Company’s Common
+Units.
+
+“Constructive Ownership” or “Constructively Own” means ownership under the
+constructive ownership rules described in Exhibit E.
+
+“Contributed Property” means each property or other asset, in such form as may
+be permitted by the Act (but excluding cash), contributed or deemed contributed
+to the Partnership.  Once the Carrying Value of a Contributed Property is
+adjusted pursuant to Exhibit B hereof, such property shall no longer constitute
+a Contributed Property for purposes of Exhibit B hereof, but shall be deemed an
+Adjusted Property for such purposes.
+
+“Conversion Factor” means 1.0, subject to adjustment as follows:  (i) in case
+the Company shall (A) make a distribution on the outstanding REIT Shares in REIT
+Shares, (B) subdivide or reclassify the outstanding REIT Shares into a greater
+number of REIT Shares, or (C) combine or reclassify the outstanding REIT Shares
+into a smaller number of REIT Shares, the Conversion Factor in effect at the
+opening of business on the day following the date fixed for the determination of
+shareholders entitled to receive such distribution or subject to such
+subdivision, combination or reclassification shall be proportionately adjusted
+so that a holder of OP Units shall be entitled to receive, upon exchange
+thereof, the number of REIT Shares which the holder would have owned at the
+opening of business on the day following the date fixed for such determination
+had such OP Units been exchanged in accordance with the limited partnership
+agreement of the Operating Partnership immediately prior to such determination;
+(ii) in case the Operating Partnership shall subdivide or reclassify its
+outstanding OP Units into a
+
+4
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+greater number of OP Units, the Conversion Factor in effect at the opening of
+business on the day following the date fixed for the determination of holders of
+OP Units subject to such subdivision or reclassification shall be
+proportionately adjusted so that a holder of OP Units shall be entitled to
+receive, upon exchange thereof, the number of REIT Shares which the holder would
+have owned at the opening of business on the day following the date fixed for
+such determination had such OP Units been exchanged in accordance with the
+limited partnership agreement of the Operating Partnership immediately prior to
+such determination; (iii) in case the Company (A) shall issue rights or warrants
+to all holders of REIT Shares entitling them to subscribe for or purchase REIT
+Shares at a price per share less than the daily market price per REIT Share on
+the date fixed for the determination of shareholders entitled to receive such
+rights or warrants, (B) shall not issue similar rights or warrants to all
+holders of OP Units of the Operating Partnership entitling them to subscribe for
+or purchase REIT Shares or OP Units at a comparable price (determined, in the
+case of OP Units, by reference to the Conversion Factor), and (C) cannot issue
+such rights or warrants to a Redeeming Partner, then the Conversion Factor in
+effect at the opening of business on the day following the date fixed for such
+determination shall be increased by multiplying such Conversion Factor by a
+fraction of which the numerator shall be the number of REIT Shares outstanding
+at the close of business on the date fixed for such determination plus the
+number of REIT Shares so offered for subscription or purchase, and of which the
+denominator shall be the number of REIT Shares outstanding at the close of
+business on the date fixed for such determination plus the number of REIT Shares
+which the aggregate offering price of the total number of REIT Shares so offered
+for subscription would purchase at such daily market price per share, such
+increase to the Conversion Factor to become effective immediately after the
+opening of business on the day following the date fixed for such determination;
+and (iv) in case the Company shall, by distribution or otherwise, distribute to
+all holders of its REIT Shares, (A) capital shares of any class other than its
+REIT Shares, (B) evidence of its indebtedness or (C) assets (excluding any
+rights or warrants referred to in clause (iii) above, any cash distribution
+lawfully paid under the laws of the state of organization of the Company, and
+any distribution referred to in clause (i) above) and shall not cause a
+corresponding distribution to be made to all holders of OP Units, the Conversion
+Factor shall be adjusted so that the same shall equal the ratio determined by
+multiplying the Conversion Factor in effect immediately prior to the close of
+business on the date fixed for the determination of shareholders entitled to
+receive such distribution by a fraction of which the numerator shall be the
+daily market price per REIT Share on the date fixed for such determination, and
+of which the denominator shall be such daily market price per REIT Share less
+the fair market value (as determined by the Board of Directors, whose
+determination shall be conclusive and described in a resolution of the Board of
+Directors certified by the Secretary of the Company and delivered to the holders
+of OP Units) of the portion of the capital shares or evidences of indebtedness
+or assets so distributed applicable to one REIT Share, such adjustment to become
+effective immediately prior to the opening of business on the day following the
+date fixed for the determination of shareholders entitled to receive such
+distribution.
+
+“Conversion Notice” has the meaning set forth in Section 4.7(B) hereof.
+
+5
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Conversion Right” has the meaning set forth in Section 4.7(A) hereof.
+
+“Covered Person” has the meaning set forth in Section 7.8(A).
+
+“Debt” means, as to any Person, as of any date of determination, (i) all
+indebtedness of such Person for borrowed money or for the deferred purchase
+price of property or services, (ii) all amounts owed by such Person to banks or
+other Persons in respect of reimbursement obligations under letters of credit,
+surety bonds and other similar instruments guaranteeing payment or other
+performance of obligations by such Person, (iii) all indebtedness for borrowed
+money or for the deferred purchase price of property or services secured by any
+lien on any property owned by such Person, to the extent attributable to such
+Person’s interest in such property, even though such Person has not assumed or
+become liable for the payment thereof, and (iv) obligations of such Person
+incurred in connection with entering into a lease which, in accordance with
+GAAP, should be capitalized.
+
+“Delaware Courts” has the meaning set forth in Section 15.10(B) hereof.
+
+“Depreciation” means, for each taxable year, an amount equal to the federal
+income tax depreciation, amortization, or other cost recovery deduction
+allowable with respect to an asset for such year, except that if the Carrying
+Value of an asset differs from its adjusted basis for federal income tax
+purposes at the beginning of such year or other period, Depreciation shall be an
+amount which bears the same ratio to such beginning Carrying Value as the
+federal income tax depreciation, amortization, or other cost recovery deduction
+for such year bears to such beginning adjusted tax basis; provided, however,
+that if the federal income tax depreciation, amortization, or other cost
+recovery deduction for such year is zero, Depreciation shall be determined with
+reference to such beginning Carrying Value using any reasonable method selected
+by the General Partner.
+
+“Economic Capital Account Balance”, with respect to a Partner, means an amount
+equal to such Partner’s Capital Account balance, plus the amount of its share of
+any Partner Minimum Gain and Partnership Minimum Gain.
+
+“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
+and in effect from time to time, as interpreted by the applicable regulations
+thereunder.  Any reference herein to a specific section or Title of ERISA shall
+be deemed to include a reference to any corresponding provision of future law.
+
+“Exchange Act” means the Securities Exchange Act of 1934, as amended.
+
+“flow through entity” has the meaning set forth in Section 3.3(D)(3) hereof.
+
+“GAAP” means U.S. generally accepted accounting principles, applied on a
+consistent basis.
+
+“General Partner” has the meaning set forth in the recitals hereto.
+
+“General Partner Interest” means a Partnership Interest held by the General
+Partner, in its capacity as general partner of the Partnership.  A General
+Partner Interest may be (but is not required to be) expressed as a number of
+Partnership Units.
+
+6
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Incapacity” or “Incapacitated” means, (i) as to any individual Partner, death,
+total physical disability or entry by a court of competent jurisdiction
+adjudicating him incompetent to manage his Person or his estate; (ii) as to any
+corporation which is a Partner, the filing of a certificate of dissolution, or
+its equivalent, for the corporation or the revocation of its charter; (iii) as
+to any partnership or limited liability company which is a Partner, the
+dissolution and commencement of winding up of the partnership or limited
+liability company; (iv) as to any estate which is a Partner, the distribution by
+the fiduciary of the estate’s entire interest in the Partnership; (v) as to any
+trustee of a trust which is a Partner, the termination of the trust (but not the
+substitution of a new trustee); or (vi) as to any Partner, the bankruptcy of
+such Partner.  For purposes of this definition, bankruptcy of a Partner shall be
+deemed to have occurred when (a) the Partner commences a voluntary proceeding
+seeking liquidation, reorganization or other relief under any bankruptcy,
+insolvency or other similar law now or hereafter in effect; (b) the Partner is
+adjudged as bankrupt or insolvent, or a final and non-appealable order for
+relief under any bankruptcy, insolvency or similar law now or hereafter in
+effect has been entered against the Partner; (c) the Partner executes and
+delivers a general assignment for the benefit of the Partner’s creditors; (d)
+the Partner files an answer or other pleading admitting or failing to contest
+the material allegations of a petition filed against the Partner in any
+proceeding of the nature described in clause (b) above; (e) the Partner seeks,
+consents to or acquiesces in the appointment of a trustee, receiver or
+liquidator for the Partner or for all or any substantial part of the Partner’s
+properties; (f) any proceeding seeking liquidation, reorganization or other
+relief of or against such Partner under any bankruptcy, insolvency or other
+similar law now or hereafter in effect has not been dismissed within 120 days
+after the commencement thereof; (g) the appointment without the Partner’s
+consent or acquiescence of a trustee, receiver or liquidator has not been
+vacated or stayed within 90 days of such appointment; or (h) an appointment
+referred to in clause (g) which has been stayed is not vacated within 90 days
+after the expiration of any such stay.
+
+“Indemnitee” means (i) any Person made a party to a proceeding by reason of (A)
+his or its status as the General Partner, or as a trustee, director, officer,
+shareholder, partner, member, employee, representative or agent of the General
+Partner or as an officer, employee, representative or agent of the Partnership
+or as the Partnership Representative, or (B) his, her or its liabilities,
+pursuant to a loan guarantee or otherwise, for any indebtedness of the
+Partnership or any Subsidiary of the Partnership (including, without limitation,
+any indebtedness which the Partnership or any Subsidiary of the Partnership has
+assumed or taken assets subject to); and (ii) such other Persons (including
+Affiliates of the General Partner or the Partnership) as the General Partner may
+designate from time to time (whether before or after the event giving rise to
+potential liability) following the direction and approval of the Board of
+Directors.
+
+“Initial Limited Partner” has the meaning set forth in the recitals hereto.
+
+“Initial General Partner” has the meaning set forth in the recitals hereto.
+
+7
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Limited Partner” means any Person named as a limited partner of the Partnership
+in Exhibit A attached hereto, as such Exhibit may be amended from time to time,
+or any Substituted Limited Partner or Additional Limited Partner, in such
+Person’s capacity as a limited partner of the Partnership.  For purposes of this
+Agreement and the Act, the Limited Partners shall constitute a single class or
+group of limited partners.
+
+“Limited Partner Interest” means a Partnership Interest of a Limited Partner in
+the Partnership representing a fractional part of the Partnership Interests of
+all Partners and includes any and all benefits to which the holder of such a
+Partnership Interest may be entitled, as provided in this Agreement, together
+with all obligations of such Person to comply with the terms and provisions of
+this Agreement.  A Limited Partner Interest may be (but is not required to be)
+expressed as a number of Partnership Units.
+
+“Liquidating Event” has the meaning set forth in Section 13.1.
+
+“Liquidating Gains” means any net gain realized in connection with the actual or
+hypothetical sale of all or substantially all of the assets of the Partnership
+(including upon the occurrence of any event of liquidation of the Partnership),
+including but not limited to the net gain realized in connection with an
+adjustment to the Carrying Value of Partnership assets under Section 1.D of
+Exhibit B attached hereto.
+
+“Liquidating Losses” means any net loss realized in connection with the actual
+or hypothetical sale of all or substantially all of the assets of the
+Partnership (including upon the occurrence of any event of liquidation of the
+Partnership), including but not limited to the net loss realized in connection
+with an adjustment to the Carrying Value of Partnership assets under Section 1.D
+of Exhibit B attached hereto.
+
+“Liquidator” has the meaning set forth in Section 13.2.
+
+“Net Income” means, for any taxable period, the excess, if any, of the
+Partnership’s items of income and gain for such taxable period over the
+Partnership’s items of loss and deduction for such taxable period.  The items
+included in the calculation of Net Income shall be determined in accordance with
+U.S. federal income tax accounting principles, subject to the specific
+adjustments provided for in Section 1.B of Exhibit B.
+
+“Net Loss” means, for any taxable period, the excess, if any, of the
+Partnership’s items of loss and deduction for such taxable period over the
+Partnership’s items of income and gain for such taxable period.  The items
+included in the calculation of Net Loss shall be determined in accordance with
+federal income tax accounting principles, subject to the specific adjustments
+provided for in Section 1.B of Exhibit B.
+
+“Non-Approving Partners” has the meaning set forth in Section 11.6(A).
+
+“Nonrecourse Deductions” has the meaning set forth in Regulations Section
+1.704-2(b)(1), and the amount of Nonrecourse Deductions for a Partnership
+taxable year shall be determined in accordance with the rules of Regulations
+Section 1.704-2(c).
+
+“Nonrecourse Liability” has the meaning set forth in Regulations Section
+1.752-1(a)(2).
+
+“Notice of Redemption” means the Notice of Redemption substantially in the form
+of Exhibit D to this Agreement.
+
+8
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Operating Partnership” means NexPoint Real Estate Finance Operating
+Partnership, L.P.
+
+“OP Units” means common partnership units of the Operating Partnership.
+
+“OP Unit Amount” means a number of OP Units equal to the product of (i) the
+number of Partnership Units offered for redemption by a Redeeming Partner, and
+(ii) the Conversion Factor; provided, that in the event the Operating
+Partnership issues to all holders of OP Units rights, options, warrants or
+convertible or exchangeable securities entitling the holders of OP Units to
+subscribe for or purchase OP Units, or any other securities or property
+(collectively, the “rights”), and the Operating Partnership can issue such
+rights to the Redeeming Partner, then the OP Unit Amount shall also include such
+rights that a holder of that number of OP Units would be entitled to receive.
+
+“Partner” means a General Partner or a Limited Partner, and “Partners” means the
+General Partner and the Limited Partners collectively.
+
+“Partner Minimum Gain” means an amount, with respect to each Partner Nonrecourse
+Debt, equal to the Partnership Minimum Gain that would result if such Partner
+Nonrecourse Debt were treated as a Nonrecourse Liability, determined in
+accordance with Regulations Section 1.704-2(i)(3).
+
+“Partner Nonrecourse Debt” has the meaning set forth in Regulations Section
+1.704-2(b)(4).
+
+“Partner Nonrecourse Deductions” has the meaning set forth in Regulations
+Section 1.704-2(i)(2), and the amount of Partner Nonrecourse Deductions with
+respect to a Partner Nonrecourse Debt for a Partnership taxable year shall be
+determined in accordance with the rules of Regulations Section 1.704-2(i)(2).
+
+“Partnership” has the meaning set forth in the recitals hereto.
+
+“Partnership Interest” means an ownership interest in the Partnership held by a
+Partner and includes any and all benefits to which the holder of such a
+partnership interest may be entitled as provided in this Agreement, together
+with all obligations of such Person to comply with the terms and provisions of
+this Agreement.  A Partnership Interest may be (but is not required to be)
+expressed as a number of Partnership Units.
+
+“Partnership Minimum Gain” has the meaning set forth in Regulations Section
+1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as any net
+increase or decrease in a Partnership Minimum Gain, for a Partnership taxable
+year shall be determined in accordance with the rules of Regulations Section
+1.704-2(d).
+
+“Partnership Record Date” means the record date established by the General
+Partner for the distribution of Available Cash pursuant to Section 5.1 hereof,
+which record date shall be the same as the record date established by the
+Company for a distribution to its shareholders of some or all of its portion of
+such distribution.
+
+“Partnership Representative” has the meaning set forth in Section 10.3(A).
+
+9
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Partnership Unit” means a fractional, undivided share of the Partnership
+Interests of all Partners issued pursuant to Sections 4.1 and 4.2 and any other
+classes or series of Partnership Units established after the date hereof.  The
+number of Partnership Units outstanding and the Percentage Interest in the
+Partnership represented by such Partnership Units are set forth in Exhibit A
+attached hereto, as such Exhibit may be amended, restated and/or supplemented
+from time to time.
+
+“Partnership Year” means the fiscal year of the Partnership, which shall be the
+calendar year.
+
+“Percentage Interest” means, as to a Partner, its interest in the Partnership as
+determined by dividing the Partnership Units owned by such Partner by the total
+number of Partnership Units then outstanding and as specified in Exhibit A
+attached hereto, as such Exhibit may be amended from time to time.
+
+“Person” means an individual or a real estate investment trust, corporation,
+partnership, limited liability company, trust, estate, unincorporated
+organization, association or other entity.
+
+“Prior Agreement” has the meaning set forth in the recitals hereto.
+
+“Qualified REIT Subsidiary” means a qualified REIT subsidiary of the Company
+within the meaning of Section 856(i)(2) of the Code.
+
+“Recapture Income” means any gain recognized by the Partnership upon the
+disposition of any property or asset of the Partnership, which gain is
+characterized as ordinary income because it represents the recapture of
+deductions previously taken with respect to such property or asset.
+
+“Redeeming Partner” has the meaning set forth in Section 8.6(A).
+
+“Redemption Right” shall have the meaning set forth in Section 8.6(A).
+
+“Regulations” means the Income Tax Regulations promulgated under the Code, as
+such regulations may be amended from time to time (including corresponding
+provisions of succeeding regulations).
+
+“REIT” means a real estate investment trust under Section 856 of the Code.
+
+“REIT Shares” means shares of common stock, $0.01 par value per share, of the
+Company.
+
+“Residual Gain” or “Residual Loss” means any item of gain or loss, as the case
+may be, of the Partnership recognized for federal income tax purposes resulting
+from a sale, exchange or other disposition of Contributed Property or Adjusted
+Property, to the extent such item of gain or loss is not allocated pursuant to
+Section 2(B)(1)(a) or 2(B)(2)(a) of Exhibit C to eliminate Book-Tax Disparities.
+
+10
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Sale of the Partnership” means (a) a sale or other disposition of all or
+substantially all of the assets of the Partnership or a related series of
+transactions that taken together, result in the sale or other disposition of all
+or substantially all of the assets of the Partnership, (b) a transaction or
+series of related transactions in which a Person, or group of related Persons,
+acquires more than 50% of the outstanding Partnership Units, or (c) the merger
+or consolidation of the Partnership with or into another Person that is not (i)
+an Affiliate of the Partnership or (ii) a Partner, in each case in clauses (b)
+and (c) above, under circumstances in which the holders of a majority of
+Partnership Units, immediately prior to such transaction, own less than a
+majority in voting power of the surviving or resulting Person immediately
+following such transaction.
+
+“Securities Act” means the Securities Act of 1933, as amended.
+
+“Specified Redemption Date” means the 10th Business Day after receipt by the
+Partnership of a Notice of Redemption; provided, that if the Operating
+Partnership combines its outstanding OP Units, no Specified Redemption Date
+shall occur after the record date of such combination of OP Units and prior to
+the effective date of such combination.
+
+“Subsidiary” means, with respect to any Person, any real estate investment
+trust, corporation, partnership, limited liability company or other entity of
+which (a) a majority of (i) the voting power of the voting equity securities; or
+(ii) the outstanding equity interests, is owned, directly or indirectly, by such
+Person or (b) such Person acts as the general partner, sole member or sole
+manager.
+
+“Substituted Limited Partner” means a Person who is admitted as a Limited
+Partner to the Partnership pursuant to Section 11.4.
+
+“Target Balance” has the meaning set forth in Section 1(H)(1) of Exhibit C
+attached hereto.
+
+“Tenant” means any tenant from which the Company derives rent either directly or
+indirectly through partnerships or limited liability companies, including the
+Partnership.
+
+“Trading Days” means days on which the primary trading market for REIT Shares,
+if any, is open for trading.
+
+“Transaction” has the meaning set forth in Section 15.12.
+
+“transfer”, when used in this Article 11, has the meaning set forth in Section
+11.1(A).
+
+“Unrealized Gain” attributable to any item of Partnership property means, as of
+any date of determination, the excess, if any, of (i) the fair market value of
+such property (as determined under Exhibit B hereof) as of such date; over (ii)
+the Carrying Value of such property (prior to any adjustment to be made pursuant
+to Exhibit B hereof) as of such date.
+
+“Unrealized Loss” attributable to any item of Partnership property means, as of
+any date of determination, the excess, if any, of (i) the Carrying Value of such
+property (prior to any adjustment to be made pursuant to Exhibit B hereof) as of
+such date; over (ii) the fair market value of such property (as determined under
+Exhibit B hereof) as of such date.
+
+11
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+“Valuation Date” means the date of receipt by the General Partner of a Notice of
+Redemption or, if such date is not a Business Day, the first Business Day
+thereafter.
+
+“Value” means, with respect to an OP Unit, the greater of (i) the Company’s most
+recent net asset value as determined by the Board of Directors and (ii) if the
+REIT Shares are listed or admitted to trading on any national securities
+exchange, the volume weighted average price for the 10 consecutive Trading Days
+immediately preceding the Valuation Date.  If the REIT Shares are not listed or
+admitted to trading on any national securities exchange, the volume weighted
+average price with respect to a REIT Share will be the volume weighted average
+price on such day or, if no sale takes place on such day, the average of the
+closing bid and asked prices on such day, as reported by a reliable quotation
+source designated by the General Partner or if no such closing bid and asked
+prices are available, the average of the reported high bid and low asked prices
+on such day, as reported by a reliable quotation source designated by the
+General Partner, or if there shall be no bid and asked prices on such day, the
+average of the high bid and low asked prices, as so reported, on the most recent
+day (not more than 10 days prior to the date in question) for which prices have
+been so reported; provided, that if there are no bid and asked prices reported
+during the 10 days prior to the date in question, the Value of the REIT Shares
+shall be determined by the General Partner acting in good faith on the basis of
+such quotations and other information as it considers, in its reasonable
+judgment, appropriate.  In the event the OP Unit Amount includes rights that a
+holder of OP Units would be entitled to receive, then the Value of such rights
+shall be determined by the General Partner acting in good faith on the basis of
+such quotations and other information as it considers, in its reasonable
+judgment, appropriate.
+
+ARTICLE 2.
+
+ORGANIZATIONAL MATTERS
+
+Section 2.1.  Continuation
+
+The Partners hereby continue the Partnership as a limited partnership under and
+pursuant to the Act.  Except as expressly provided herein to the contrary, the
+rights and obligations of the Partners and the administration and termination of
+the Partnership shall be governed by the Act.  The Partnership Interest of each
+Partner shall be personal property for all purposes.
+
+Section 2.2.  Name
+
+The name of the Partnership heretofore formed and continued hereby shall be NREF
+OP I, L.P. The Partnership’s business may be conducted under any other name or
+names deemed advisable by the General Partner following the direction and
+approval of the Board of Directors.  The words “Limited Partnership,” “L.P.,”
+“Ltd.” or similar words or letters shall be included in the Partnership’s name
+where necessary for the purposes of complying with the laws of any jurisdiction
+that so requires.  The General Partner, following the direction and approval of
+the Board of Directors, may change the name of the Partnership at any time and
+from time to time and shall notify the Limited Partners of such change in the
+next regular communication to the Limited Partners.
+
+12
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+Section 2.3.  Registered Office and Agent; Principal Office
+
+The address of the registered office of the Partnership in the State of Delaware
+is 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801 and the
+registered agent for service of process on the Partnership in the State of
+Delaware shall be The Corporation Trust Company.  The principal office of the
+Partnership shall be 300 Crescent Court, Suite 700, Dallas, Texas 75201 or such
+other place as the General Partner, following the direction and approval of the
+Board of Directors, may from time to time designate by notice to the Limited
+Partners.  The Partnership may maintain offices at such other place or places
+within or outside the State of Delaware as the General Partner and the Board of
+Directors deems advisable.
+
+Section 2.4.  Power of Attorney
+
+A.Each Limited Partner and each Assignee hereby constitutes and appoints the
+General Partner, any Liquidator, and authorized officers and attorneys-in-fact
+of each, and each of those acting singly, in each case with full power of
+substitution, as its true and lawful agent and attorney-in-fact, with full power
+and authority in its name, place and stead to execute, swear to, acknowledge,
+deliver, file and record in the appropriate public offices (a) all certificates,
+documents and other instruments (including, without limitation, this Agreement
+and the Certificate and all amendments or restatements thereof) that the General
+Partner or the Liquidator deems appropriate or necessary to form, qualify or
+continue the existence or qualification of the Partnership as a limited
+partnership (or a partnership in which the Limited Partners have limited
+liability) in the State of Delaware and in all other jurisdictions in which the
+Partnership may or plans to conduct business or own property; (b) all
+instruments that the General Partner deems appropriate or necessary to reflect
+any amendment, change, modification or restatement of this Agreement in
+accordance with its terms; (c) all conveyances and other instruments or
+documents that the General Partner or the Liquidator deems appropriate or
+necessary to reflect the dissolution and winding up of the Partnership pursuant
+to the terms of this Agreement, including, without limitation, a certificate of
+cancellation; (d) all instruments relating to the admission, withdrawal, removal
+or substitution of any Partner pursuant to Articles 11, 12 or 13 hereof or the
+Capital Contribution of any Partner; and (e) all conveyances and other
+instruments or documents that the General Partner or the Liquidator deems
+appropriate or necessary to reflect the distribution or exchange of assets of
+the Partnership pursuant to the terms of this Agreement. Nothing contained
+herein shall be construed as authorizing the General Partner or any Liquidator
+to amend this Agreement except in accordance with Article 14 hereof or as may be
+otherwise expressly provided for in this Agreement.
+
+13
+
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+
+ 
+
+B.The foregoing power of attorney is hereby declared to be irrevocable and a
+power coupled with an interest, in recognition of the fact that each of the
+Partners will be relying upon the power of the General Partner and any
+Liquidator to act as contemplated by this Agreement in any filing or other
+action by it on behalf of the Partnership, and it shall survive and not be
+affected by the subsequent Incapacity of any Limited Partner or Assignee and the
+transfer of all or any portion of such Limited Partner’s or Assignee’s
+Partnership Units and shall extend to such Limited Partner’s or Assignee’s
+heirs, successors, assigns and personal representatives. Each such Limited
+Partner or Assignee hereby agrees to be bound by any representation made by the
+General Partner or any Liquidator, acting in good faith pursuant to such power
+of attorney, and each such Limited Partner or Assignee hereby waives any and all
+defenses which may be available to contest, negate or disaffirm the action of
+the General Partner or any Liquidator, taken in good faith under such power of
+attorney.  Each Limited Partner or Assignee shall execute and deliver to the
+General Partner or the Liquidator, within 15 days after receipt of the General
+Partner’s or Liquidator’s request therefor, such further designation, powers of
+attorney and other instruments as the General Partner or the Liquidator, as the
+case may be, deems necessary to effectuate this Agreement and the purposes of
+the Partnership.
+
+C.Notwithstanding anything in this Section 2.4, no General Partner, Liquidator,
+or authorized officer or attorney-in-fact of either, may exercise the power and
+authority under this Section 2.4 without the prior approval of the Board of
+Directors.
+
+Section 2.5.  Term
+
+The term of the Partnership commenced on the date that the Certificate was filed
+with the Secretary of State of the State of Delaware and shall continue until
+dissolved pursuant to the provisions of Article 13 or as otherwise provided by
+law.
+
+Section 2.6.  Admission of Partners
+
+On the date hereof, and upon its execution and delivery of a counterpart to this
+Agreement, (a) each of the Persons identified as a limited partner of the
+Partnership on Exhibit A to this Agreement is upon its delivery to the
+Partnership of its initial Capital Contribution, such initial Capital
+Contribution specified on Exhibit A of this Agreement pursuant to Section 4.1,
+hereby admitted to the Partnership as a limited partner of the Partnership, and
+(b) the General Partner is hereby admitted to the Partnership as general partner
+of the Partnership. Immediately following the admission of the General Partner
+as the general partner, the Initial General Partner, by its execution and
+delivery of a counterpart of this Agreement, shall withdraw and be deemed
+withdrawn from the Partnership and shall have no further or continuing interest
+in the Partnership. By execution and delivery of a counterpart of this
+Agreement, the Initial Limited Partner’s Partnership Units shall be redeemed and
+the Initial Limited Partner shall have no further or continuing interest in the
+Partnership. Each Limited Partner being admitted to the Partnership from time to
+time after the date hereof shall be deemed admitted to the Partnership as a
+limited partner of the Partnership upon such Limited Partner’s execution and
+delivery of a counterpart to this Agreement and delivery to the Partnership of
+its initial Capital Contribution, such initial Capital Contribution specified on
+Exhibit A of this Agreement pursuant to Section 4.1.
+
+14
+
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+
+ 
+
+ARTICLE 3.
+
+PURPOSE
+
+Section 3.1.  Purpose and Business
+
+The purpose and nature of the business to be conducted by the Partnership is (i)
+to conduct any business that may be lawfully conducted by a limited partnership
+formed pursuant to the Act; provided, however, that such business shall be
+limited to and conducted in such a manner as to permit the Company at all times
+to qualify as a REIT, unless the Company ceases to qualify as a REIT for reasons
+other than as a result of the conduct of the business of the Partnership or
+voluntarily revokes its election to be a REIT; (ii) to enter into any
+partnership, joint venture or other similar arrangement to engage in any of the
+foregoing or to own interests in any entity engaged in any of the foregoing; and
+(iii) to do anything necessary, convenient or incidental to the foregoing. In
+connection with the foregoing, and without limiting the Company’s right, in its
+sole discretion, to cease qualifying as a REIT, the Partners acknowledge that
+the Company’s current status as a REIT inures to the benefit of all of the
+Partners and not solely to the General Partner, the Company or their Affiliates.
+
+Section 3.2.  Powers
+
+The Partnership shall be empowered to do any and all acts and things necessary,
+appropriate, proper, advisable, incidental to or convenient for the furtherance
+and accomplishment of the purposes and business described herein and for the
+protection and benefit of the Partnership, and shall have, without limitation,
+any and all of the powers that may be exercised on behalf of the Partnership by
+the General Partner pursuant to and according to the terms of this Agreement;
+provided, however, that the Partnership may not, without the General Partner’s
+consent, following the direction and approval of the Board of Directors, take,
+or refrain from taking, any action which, in the judgment of the General
+Partner, following the direction and approval of the Board of Directors,
+(i) could adversely affect the ability of the Company to qualify and to continue
+to qualify as a REIT; (ii) could subject the Company to any additional taxes
+under Section 857 or Section 4981 of the Code or any other related or successor
+provision of the Code; or (iii) could violate any law or regulation of any
+governmental body or agency having jurisdiction over the Company, its securities
+or the Partnership, unless such action (or inaction) under clause (i), clause
+(ii) or clause (iii) above shall have been specifically consented to by the
+Company in writing.
+
+Section 3.3.  Representations and Warranties by the Parties
+
+A.Each Partner that is an individual represents and warrants to each other
+Partner that (i) such Partner has the legal capacity to enter into this
+Agreement and perform such Partner’s obligations hereunder, (ii) the
+consummation of the transactions contemplated by this Agreement to be performed
+by such Partner will not result in a breach or violation of, or a default under,
+any agreement by which such Partner or any of such Partner’s property is or are
+bound, or any statute, regulation, order or other law to which such Partner is
+subject, (iii) such Partner is a “United States person” within the meaning of
+Section 7701(a)(30) of the Code, and (iv) this Agreement is binding upon, and
+enforceable against, such Partner in accordance with its terms.
+
+15
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+
+ 
+
+B.Each Partner that is not an individual represents and warrants to each other
+Partner that (i) its execution and delivery of this Agreement and all
+transactions contemplated by this Agreement to be performed by it have been duly
+authorized by all necessary action, including without limitation, that of its
+general partner(s), committee(s), trustee(s), beneficiaries, director(s) and/or
+shareholder(s), as the case may be, as required, (ii) the consummation of such
+transactions shall not result in a breach or violation of, or a default under,
+its certificate of limited partnership, partnership agreement, trust agreement,
+limited liability company operating agreement, declaration of trust, charter or
+bylaws, as the case may be, any agreement by which such Partner or any of such
+Partner’s properties or any of its partners, beneficiaries, trustees or
+shareholders, as the case may be, is or are bound, or any statute, regulation,
+order or other law to which such Partner or any of its partners, trustees,
+beneficiaries or shareholders, as the case may be, is or are subject, (iii) such
+Partner is a “United States person” within the meaning of Section 7701(a)(30) of
+the Code and (iv) this Agreement is binding upon, and enforceable against, such
+Partner in accordance with its terms.
+
+C.Each Partner represents, warrants and agrees that it has acquired and
+continues to hold its interest in the Partnership for its own account for
+investment only and not for the purpose of, or with a view toward, the resale or
+distribution of all or any part thereof, nor with a view toward selling or
+otherwise distributing such interest or any part thereof at any particular time
+or under any predetermined circumstances.  Each Partner further represents and
+warrants that it is a sophisticated investor, able and accustomed to handling
+sophisticated financial matters for itself, particularly real estate
+investments, and that it has a sufficiently high net worth that it does not
+anticipate a need for the funds it has invested in the Partnership in what it
+understands to be a highly speculative and illiquid investment.
+
+D.Each Partner further represents, warrants, covenants and agrees as follows:
+
+(1)Except as provided in Exhibit F hereto, at any time such Partner actually or
+Constructively Owns a 25% or greater capital interest or profits interest in the
+Partnership, it does not and will not, without the approval of the Board of
+Directors, actually own or Constructively Own (a) with respect to any Tenant
+that is a corporation, any stock of such Tenant, and (b) with respect to any
+Tenant that is not a corporation, any interest in either the assets or net
+profits of such Tenant.
+
+(2)Upon request of the General Partner, it will promptly disclose to the General
+Partner and the Company the amount of REIT Shares or other capital shares of the
+Company that it actually owns or Constructively Owns.
+
+(3)Without the approval of the Board of Directors, no Partner shall take any
+action that would cause the Partnership at any time to have more than 100
+partners (including as partners those Persons indirectly owning an interest in
+the Partnership through a partnership, limited liability company, S corporation
+or grantor trust (such entity, a “flow through entity”), but only if
+substantially all of the value of such person’s interest in the flow through
+entity is attributable to the flow through entity’s interest (direct or
+indirect) in the Partnership).
+
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+
+ 
+
+E.The representations and warranties contained in this Section 3.3 shall survive
+the execution and delivery of this Agreement by each Partner and the dissolution
+and winding up of the Partnership.
+
+F.Each Partner hereby acknowledges that no representations as to potential
+profit, cash flows, funds from operations or yield, if any, in respect of the
+Partnership or the Company have been made by any Partner or any employee or
+representative or Affiliate of any Partner, and that projections and any other
+information, including, without limitation, financial and descriptive
+information and documentation, which may have been in any manner submitted to
+such Partner shall not constitute any representation or warranty of any kind or
+nature, express or implied.
+
+G.Each Partner understands that if, for any reason, (a) the representations,
+warranties or agreements set forth in this Section 3.3 are violated, or (b) the
+Partnership’s actual or Constructive Ownership of REIT Shares or other capital
+shares of the Company violates the limitations set forth in the Charter, then
+(x) some or all of the Redemption Rights of the Partners may become
+non-exercisable, and (y) some or all of the REIT Shares owned by the Partners
+may be automatically transferred to a trust for the benefit of a charitable
+beneficiary, as provided in the Charter.
+
+Section 3.4.  Not Publicly Traded
+
+The Partners intend for the Partnership to be treated as a partnership for
+United States federal income tax purposes and no election to the contrary shall
+be made.  The General Partner, on behalf of the Partnership, shall use its best
+efforts not to take any action which would result in the Partnership being a
+publicly traded partnership within the meaning of either Section 469(k)(2) or
+7704(b) of the Code.  Subject to this Section 3.4, it is expressly acknowledged
+and agreed by the Partners that the General Partner may, following the direction
+and approval of the Board of Directors, waive or otherwise modify the
+application with respect to any Partner(s) or Assignee(s) of any provision
+herein restricting, prohibiting or otherwise relating to (i) the transfer of a
+Limited Partner Interest or the Partnership Units evidencing the same, (ii) the
+admission of any Limited Partners and (iii) the Redemption Rights of such
+Partners, and that such waivers or modifications may be made by the General
+Partner at any time or from time to time, including, without limitation,
+concurrently with the issuance of any Partnership Units pursuant to the terms of
+this Agreement.
+
+17
+
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+
+ 
+
+ARTICLE 4.
+
+CAPITAL CONTRIBUTIONS
+
+Section 4.1.  Capital Contributions of the Partners
+
+At the time of their respective execution of this Agreement, the Partners shall
+make or shall have made Capital Contributions as set forth in Exhibit A to this
+Agreement.  The Partners shall own Partnership Units of the class or series and
+in the amounts set forth in Exhibit A and shall have a Percentage Interest in
+the Partnership as set forth in Exhibit A, which Percentage Interest shall be
+adjusted in Exhibit A from time to time by the General Partner to the extent
+necessary to reflect accurately exchanges, redemptions, additional Capital
+Contributions, the issuance of additional Partnership Units (pursuant to any
+merger or otherwise), or similar events having an effect on any Partner’s
+Percentage Interest.  Except as provided in Section 4.2, Section 4.3, and
+Section 10.4, the Partners shall have no obligation to make any additional
+Capital Contributions or loans to the Partnership.  Each Limited Partner that
+contributes any Contributed Property shall promptly provide the General Partner
+and the Board of Directors, upon either of their request, with any information
+regarding such Contributed Property, including for Partnership tax return
+reporting purposes.
+
+Section 4.2.  Issuances of Additional Partnership Interests
+
+The General Partner is hereby authorized, following the direction and approval
+of the Board of Directors, to cause the Partnership from time to time to issue
+to any existing Partner (including the General Partner and the Company) or to
+any other Person, and to admit such Person as a limited partner in the
+Partnership, Partnership Units (including, without limitation, Common Units and
+preferred Partnership Units) or other Partnership Interests, in each case in
+exchange for the contribution by such Person of property or other assets, in one
+or more classes, or one or more series of any of such classes, or otherwise with
+such designations, preferences, redemption and conversion rights and relative,
+participating, optional or other special rights, powers and duties, including
+rights, powers and duties senior to Limited Partner Interests, all as shall be
+determined by the General Partner (following the direction and approval of the
+Board of Directors) subject to Delaware law, including, without limitation, (i)
+the allocations of items of Partnership income, gain, loss, deduction and credit
+to each such class or series of Partnership Interests; (ii) the right of each
+such class or series of Partnership Interests to share in Partnership
+distributions; and (iii) the rights of each such class or series of Partnership
+Interests upon dissolution and liquidation of the Partnership.
+
+Section 4.3.  Additional Funds
+
+A.The General Partner may, following the direction and approval of the Board of
+Directors, reasonably determine from time to time that the Partnership requires
+additional funds (“Additional Funds”) for the acquisition of additional assets,
+for the redemption of Partnership Units or for other reasonable
+purposes.  Subject to Section 7.1, Additional Funds may be obtained by the
+Partnership, at the election of the General Partner (following the direction and
+approval of the Board of Directors), in any manner provided in, and in
+accordance with, the terms of this Section 4.3, without the approval of any
+Limited Partner (unless such approval is required under the terms of this
+Agreement).
+
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+
+ 
+
+B.Subject to the approval of the Board of Directors contemplated by Section
+4.3(A) and the limitations set forth in Section 7.1, the General Partner, on
+behalf of the Partnership, may obtain any Additional Funds by accepting Capital
+Contributions from any Partners or other Persons.  In connection with any such
+Capital Contribution, the General Partner is hereby authorized to cause the
+Partnership from time to time to issue additional Partnership Units (as set
+forth in Section 4.2 above) in consideration therefor, and the Percentage
+Interests of the Partners shall be adjusted to reflect the issuance of such
+additional Partnership Units.
+
+C.Subject to the approval of the Board of Directors contemplated by Section
+4.3(A) and the limitations set forth in Section 7.1, the General Partner, on
+behalf of the Partnership, may obtain any Additional Funds by causing the
+Partnership to incur Debt upon such terms as the General Partner determines
+appropriate (following the direction and approval of the Board of Directors of
+such terms), including making such Debt convertible, redeemable or exchangeable
+for Partnership Units, OP Units or REIT Shares; provided, however, that the
+Partnership shall not incur any such Debt if such Debt is recourse to any
+Partner (unless the Partner otherwise agrees).
+
+D.Following the direction and approval of the Board of Directors and subject to
+the limitations set forth in Section 7.1, the General Partner, on behalf of the
+Partnership, may obtain any Additional Funds by causing the Partnership to incur
+Debt with the Company; provided, however, that the Partnership shall not incur
+any such Debt if (a) a breach, violation or default of such Debt would be deemed
+to occur by virtue of the transfer of any Partnership Interest, or (b) such Debt
+is recourse to any Partner (unless the Partner otherwise agrees).
+
+Section 4.4.  Preemptive Rights
+
+No Person shall have any preemptive, preferential or other similar right with
+respect to (i) additional Capital Contributions or loans to the Partnership; or
+(ii) the issuance or sale of any Partnership Units or other Partnership
+Interests.
+
+Section 4.5. No Interest
+
+No Partner shall be entitled to interest on its Capital Contribution or on such
+Partner’s Capital Account unless determined by the General Partner following the
+direction and approval of the Board of Directors.
+
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+
+ 
+
+ARTICLE 5.
+
+DISTRIBUTIONS
+
+Section 5.1.  Requirement and Characterization of Distributions
+
+The General Partner shall distribute at least quarterly a portion of Available
+Cash generated by the Partnership during such quarter or shorter period, such
+portion as determined by the General Partner following the direction and
+approval of the Board of Directors, to the Partners that are Partners on the
+Partnership Record Date with respect to such quarter or shorter period in
+accordance with their Percentage Interests; provided, that in no event may a
+Partner receive a distribution of Available Cash with respect to a Partnership
+if such Partner is entitled to receive a distribution out of such Available Cash
+with respect to an OP Unit or a REIT Share for which such Partnership Unit has
+been exchanged, and any such distribution shall be made to the Operating
+Partnership or the Company.
+
+Section 5.2.  Amounts Withheld
+
+All amounts withheld pursuant to the Code or any provisions of any state, local
+or non-U.S. tax law and Section 10.4 hereof with respect to any allocation,
+payment or distribution to any Partner or Assignee shall be treated as amounts
+distributed to such Partner or Assignee pursuant to Section 5.1 for all purposes
+under this Agreement.
+
+Section 5.3.  Distributions Upon Liquidation
+
+Proceeds from a Sale of the Partnership and any other cash received or
+reductions in reserves made after commencement of the liquidation of the
+Partnership shall be distributed to the Partners in accordance with Section
+13.2.
+
+Section 5.4.  Restricted Distributions
+
+Notwithstanding any provision to the contrary contained in this Agreement, the
+Partnership, and the General Partner on behalf of the Partnership, shall not
+make a distribution to any Partner on account of its interest in the Partnership
+if such distribution would violate Section 17-607 of the Act or other applicable
+law.
+
+Section 5.5.  Compliance with REIT Requirements
+
+The General Partner shall make such reasonable efforts, following the direction
+and approval of the Board of Directors and consistent with the Company’s
+qualification as a REIT, to cause the Partnership to distribute sufficient
+amounts to enable the Company, for so long as the Company has determined to
+qualify as a REIT, to pay stockholder dividends that will (a) satisfy the
+requirements for qualifying as a REIT under the Code and Regulations (the “REIT
+Requirements”) and (b) except to the extent otherwise determined by the Company,
+eliminate any federal income or excise tax liability of the Company.
+
+ 
+
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+
+ 
+
+ARTICLE 6.
+
+ALLOCATIONS
+
+Section 6.1.  Allocations For Capital Account Purposes
+
+A.After giving effect to the special allocations set forth in Section 1 of
+Exhibit C attached hereto for the applicable taxable year or other allocation
+period, and subject to Section 4 of Exhibit B attached hereto, Net Income for
+each taxable year or other allocation period shall be allocated to the Partners’
+Capital Accounts in the following order of priority:
+
+(1)First, to the General Partner until the cumulative Net Income allocated to
+the General Partner under this Section 6.1(A)(1) equals the cumulative Net Loss
+allocated to the General Partner under Section 6.1(B)(2);
+
+(2)Next, to the holders of Common Units until the cumulative Net Income
+allocated to such holders under this Section 6.1(A)(2) equals the cumulative Net
+Loss allocated to such holders under Section 6.1(B)(1) (pro rata in accordance
+with the excess of such Net Loss over such Net Income for each such holder); and
+
+(3)Thereafter, to the holders of Common Units pro rata in accordance with their
+respective Percentage Interests.
+
+B.After giving effect to the special allocations set forth in Section 1 of
+Exhibit C attached hereto for the applicable taxable year or other allocation
+period, and subject to Section 4 of Exhibit B attached hereto, Net Loss for each
+taxable year or other allocation period shall be allocated to the Partners’
+Capital Accounts in the following order of priority.
+
+(1)First, to the holders of Common Units with positive balances in their
+Economic Capital Account Balances in accordance with such balances until their
+Economic Capital Account Balances are reduced to zero; and
+
+(2)Thereafter, to the General Partner.
+
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+
+ 
+
+ARTICLE 7.
+
+MANAGEMENT AND OPERATIONS OF BUSINESS
+
+Section 7.1.  Management
+
+A.Except as otherwise expressly provided in this Agreement, all management
+powers over the business and affairs of the Partnership are and shall be
+exclusively vested in the General Partner, and no Limited Partner or other
+Person shall have any right to participate in or exercise control or management
+power over the business and affairs of the Partnership.  The General Partner may
+be removed, with or without cause by the holders of a majority of the Common
+Units outstanding, subject to the approval of the Board of Directors. In
+addition to the powers now or hereafter granted to a general partner of a
+limited partnership under applicable law or which are granted to the General
+Partner under any other provision of this Agreement, the General Partner,
+subject to the terms of this Agreement, shall have full power and authority to
+do all things deemed necessary, desirable or convenient by it to conduct the
+business of the Partnership, to exercise all powers set forth in Section 3.2
+hereof and to effectuate the purposes set forth in Section 3.1 hereof.
+Notwithstanding the foregoing, the General Partner shall not do any of the
+following without the prior approval of the Board of Directors:
+
+(1)the making of any expenditures, the lending or borrowing of money (including,
+without limitation, making prepayments on loans and borrowing money to permit
+the Partnership to make distributions to its Partners in such amounts as will
+permit the Company (so long as the Company desires to maintain its qualification
+as a REIT) to avoid the payment of any U.S. federal income tax (including, for
+this purpose, any excise tax pursuant to Section 4981 of the Code) and to make
+distributions to its shareholders in amounts sufficient to permit the Company to
+maintain its REIT status), the assumption or guarantee of, or other contracting
+for, indebtedness and other liabilities, the issuance of evidence of
+indebtedness (including the securing of the same by deed, mortgage, deed of
+trust or other lien or encumbrance on the Partnership’s assets or any assets of
+its Subsidiaries) and the incurring of any obligations it deems necessary for
+the conduct of the activities of the Partnership;
+
+(2)the making of tax, regulatory and other filings or elections, or rendering of
+periodic or other reports to governmental or other agencies having jurisdiction
+over the business or assets of the Partnership;
+
+(3)the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or
+exchange of any assets of the Partnership (including the exercise or grant of
+any conversion, option, privilege, or subscription right or other right
+available in connection with any assets at any time held by the Partnership) or
+the merger or other combination of the Partnership with or into another entity
+(all of the foregoing subject to any prior approval only to the extent required
+by Section 7.3 hereof);
+
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+
+(4)the mortgage, pledge, encumbrance or hypothecation of any assets of the
+Partnership, the use of the assets of the Partnership (including, without
+limitation, cash on hand) for any purpose consistent with the terms of this
+Agreement and on any terms that it sees fit, including, without limitation, the
+financing of the conduct of the operations of the Partnership, the Company or
+any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to
+other Persons (including, without limitation, the Subsidiaries of the
+Partnership and/or the Company) and the repayment of obligations of the
+Partnership and its Subsidiaries and any other Person in which it has an equity
+investment, and the making of capital contributions to its Subsidiaries;
+
+(5)the negotiation, execution, delivery and performance of any contracts
+(including leases), conveyances or other instruments that the General Partner
+considers useful or necessary or convenient to the conduct of the Partnership’s
+operations or the implementation of the General Partner’s powers under this
+Agreement, including, without limitation, contracting with consultants,
+accountants, legal counsel, other professional advisors and other agents and the
+payment of their expenses and compensation out of the Partnership’s assets;
+
+(6)the distribution of Partnership cash or other Partnership assets in
+accordance with this Agreement;
+
+(7)holding, managing, investing and reinvesting cash and other assets of the
+Partnership;
+
+(8)the amending, restating and/or supplementing of this Agreement or the
+Certificate;
+
+(9)the establishment of one or more divisions of the Partnership, the selection
+and dismissal of employees of the Partnership (including, without limitation,
+employees who may be designated as officers with titles such as “president,”
+“vice president,” “secretary” and “treasurer” of the Partnership), and agents,
+outside attorneys, accountants, consultants and contractors of the Partnership,
+and the determination of their compensation and other terms of employment or
+hiring;
+
+(10)the formation of, or acquisition of an interest in, and the contribution of
+property to, any further limited or general partnerships, limited liability
+companies, real estate investment trusts, corporations, entities that are
+treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for
+federal income tax purposes, joint ventures or other relationships that it deems
+desirable (including, without limitation, the acquisition of interests in, and
+the contributions of property or the making of loans to, its or the Company’s
+Subsidiaries and any other Person in which it has an equity investment from time
+to time or the incurrence of indebtedness on behalf of such Persons or the
+guarantee of obligations of such Persons and the making of any tax, regulatory
+or other filing or election with respect to any of the foregoing Persons);
+provided, that as long as the Company has determined to continue to qualify as a
+REIT, the Partnership may not engage in any such formation, acquisition or
+contribution that would cause the Company to fail to qualify as a REIT;
+
+23
+
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+
+ 
+
+(11)the control of any matters affecting the rights and obligations of the
+Partnership, including the settlement, compromise, submission to arbitration or
+any other form of dispute resolution, or abandonment of, any claim, cause of
+action, liability, Debt or damages, due or owing to or from the Partnership, the
+commencement or defense of suits, legal proceedings, administrative proceedings,
+arbitrations or other forms of dispute resolution, and the representation of the
+Partnership in all suits or legal proceedings, administrative proceedings,
+arbitrations or other forms of dispute resolution, the incurrence of legal
+expense, and the indemnification of any Person against liabilities and
+contingencies to the extent permitted by law;
+
+(12)the undertaking of any action in connection with the Partnership’s direct or
+indirect investment in any Subsidiary or any other Person (including, without
+limitation, the contribution or loan of funds by the Partnership to such
+Persons);
+
+(13)the determination of the fair market value of any Partnership property
+distributed in kind using such reasonable method of valuation as the General
+Partner may adopt;
+
+(14)the enforcement of any rights against any Partner pursuant to
+representations, warranties, covenants and indemnities relating to such
+Partner’s contribution of property or assets to the Partnership;
+
+(15)the exercise, directly or indirectly, through any attorney-in-fact acting
+under a general or limited power of attorney, of any right, including the right
+to vote, appurtenant to any asset or investment held by the Partnership;
+
+(16)the exercise of any of the powers of the General Partner enumerated in this
+Agreement on behalf of or in connection with any Subsidiary of the Partnership
+or any other Person in which the Partnership has a direct or indirect interest,
+or jointly with any such Subsidiary or other Person;
+
+(17)the exercise of any of the powers of the General Partner enumerated in this
+Agreement on behalf of any Person in which the Partnership does not have an
+interest pursuant to contractual or other arrangements with such Person;
+
+(18)the making, execution, delivery and performance of any and all deeds,
+leases, notes, mortgages, deeds of trust, security agreements, conveyances,
+contracts, guarantees, warranties, indemnities, waivers, releases or legal
+instruments or agreements in writing necessary, appropriate or convenient, in
+the judgment of the General Partner, for the accomplishment of any of the powers
+of the General Partner enumerated in this Agreement;
+
+24
+
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+
+ 
+
+(19)the issuance of additional Partnership Units and other partnership interests
+to any Partners or other Persons;
+
+B.Subject to the rights of the Partners and the approval of the Board of
+Directors as set forth in this Agreement, including, but not limited to, Section
+7.1, each of the Limited Partners agrees that the General Partner is authorized
+to execute, deliver and perform the above-mentioned agreements and transactions
+on behalf of the Partnership, and otherwise to exercise any power of the General
+Partner under this Agreement or the Act, without any further act, approval or
+vote of the Partners, notwithstanding any other provision of this Agreement
+(except as provided in Section 7.3), the Act or any applicable law, rule or
+regulation, to the fullest extent permitted under the Act or other applicable
+law, rule or regulation.  The execution, delivery or performance by the General
+Partner or the Partnership of any agreement authorized or permitted under this
+Agreement shall not constitute a breach by the General Partner of any duty that
+the General Partner may owe the Partnership or the Limited Partners or any other
+Persons under this Agreement or of any duty stated or implied by law or equity.
+
+C.At all times from and after the date hereof, the General Partner, following
+the direction and approval of the Board of Directors, may cause the Partnership
+to establish and maintain at any and all times working capital accounts and
+other cash or similar balances in such amounts as the General Partner, following
+the direction and approval of the Board of Directors, deems appropriate and
+reasonable from time to time.
+
+D.In exercising its authority under this Agreement, the General Partner (solely
+to the extent directed by the Board of Directors, and in all cases in accordance
+with such direction from the Board of Directors) shall take into account the tax
+consequences to any Partner of any action taken (or not taken) by it.  The
+General Partner, the Board of Directors and the Partnership shall not be liable
+to a Limited Partner under any circumstances as a result of an income tax or
+other tax liability incurred by such Limited Partner as a result of an action
+(or inaction) by the General Partner taken pursuant to its authority under this
+Agreement or at the direction of the Board of Directors.
+
+Section 7.2.  Certificate of Limited Partnership
+
+The Initial General Partner filed the Certificate with the Secretary of State of
+the State of Delaware as required by the Act. The General Partner shall use all
+reasonable efforts to cause to be filed such other certificates or documents as
+may be reasonable and necessary or appropriate for the formation, continuation,
+qualification and operation of a limited partnership (or a partnership in which
+the limited partners have limited liability) in the State of Delaware and any
+other state, or the District of Columbia, in which the Partnership may elect to
+do business or own property.  To the extent that such action is determined by
+the General Partner to be reasonable and necessary or appropriate or convenient,
+the General Partner shall file amendments to and restatements of the Certificate
+and do all of the things to maintain the Partnership as a limited partnership
+(or a partnership in which the limited partners have limited liability) under
+the laws of the State of Delaware and each other state, or the District of
+Columbia, in which the Partnership may elect to do business or own
+property.  Subject to the terms of Section 8.5(A)(2) hereof, the General Partner
+shall not be required, before or after filing, to deliver or mail a copy of the
+Certificate or any amendment thereto or restatement thereof to any Limited
+Partner.
+
+25
+
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+
+ 
+
+Section 7.3.  Restrictions on General Partner Authority
+
+The General Partner may not take any action in contravention of an express
+prohibition or limitation of this Agreement without the written consent of
+Limited Partners holding a majority of the Percentage Interests held by Limited
+Partners, or such other percentage of the Limited Partners as may be
+specifically provided for under a provision of this Agreement.
+
+Section 7.4.  Reimbursement of the General Partner and the Company
+
+A.Except as provided in this Section 7.4 and elsewhere in this Agreement
+(including the provisions of Articles 5 and 6 regarding distributions, payments,
+and allocations to which it may be entitled), the General Partner shall not be
+compensated for its services as general partner of the Partnership.
+
+B.The Partnership shall be responsible for and shall pay all expenses relating
+to the Partnership’s and the General Partner’s organization and the ownership of
+each of their assets and operations. The General Partner shall be reimbursed on
+a monthly basis for all expenditures that it reasonably incurs relating to the
+ownership and operation of, or for the benefit of, the Partnership; provided,
+that the amount of any such reimbursement shall be reduced by any interest
+earned by the General Partner with respect to bank accounts or other instruments
+or accounts held by it on behalf of the Partnership; and provided, further, that
+the General Partner shall not be reimbursed for any (i) trustees’/directors’
+fees, (ii) income tax liabilities or (iii) filing or similar fees in connection
+with maintaining the General Partner’s continued existence that are incurred by
+the General Partner, but the Partners acknowledge that all other expenses of the
+General Partner is deemed to be for the benefit of the Partnership.  Such
+reimbursement shall be in addition to any reimbursement made as a result of
+indemnification pursuant to Section 7.7 hereof.  Included among the expenditures
+for which the General Partner shall be entitled to reimbursement hereunder shall
+be any payments of debt service made by the General Partner, in its capacity as
+General Partner, as guarantor or otherwise, with respect to indebtedness
+encumbering any property held by the Partnership.
+
+Section 7.5.  Outside Activities of the General Partner
+
+The General Partner and any Affiliates of the General Partner shall only conduct
+the activities contemplated by this Agreement. Notwithstanding the foregoing,
+the General Partner and any Affiliates of the General Partner may (a) acquire
+Limited Partner Interests and shall be entitled to exercise all rights of a
+Limited Partner relating to such Limited Partner Interests and (b) acquire less
+than 5% of the equity securities of any Person, which securities are listed on
+any national securities exchange and the General Partner or such Affiliate has
+no other business relationship, direct or indirect, with the issuer of such
+securities. For the avoidance of doubt, family members of Affiliates of the
+General Partner are permitted to own real estate for commercial purposes.
+
+26
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+
+ 
+
+Section 7.6.  Contracts with Affiliates
+
+A.The Partnership may lend or contribute funds or other assets to, and borrow
+funds from, its or the Company’s Subsidiaries or other Persons in which it or
+the Company has an equity or other interests and such Persons may borrow funds
+from, and lend or contribute funds or assets to, the Partnership, on terms and
+conditions established by the General Partner, following the direction and
+approval of the Board of Directors.  The foregoing authority shall not create
+any right or benefit in favor of any Subsidiary or any other Person.
+
+B.Except as provided in Section 7.5, the Partnership may transfer assets to
+joint ventures, other partnerships, limited liability companies, real estate
+investment trusts, corporations or other business entities in which it is or
+thereby becomes a participant upon such terms and subject to such conditions
+consistent with this Agreement and applicable law as the General Partner deems
+appropriate, following the direction and approval of the Board of Directors.
+
+C.Except as expressly permitted by this Agreement, neither the General Partner
+nor any of its Affiliates shall sell, transfer or convey any property to, or
+purchase any property from, the Partnership, directly or indirectly, except
+pursuant to transactions that are determined by the General Partner in good
+faith to be fair and reasonable following the direction and approval of the
+Board of Directors.
+
+Section 7.7.  Indemnification
+
+A.To the fullest extent permitted by Delaware law, the Partnership shall
+indemnify each Indemnitee from and against any and all losses, claims, damages,
+liabilities, joint or several, expenses (including, without limitation,
+attorneys’ fees and other legal fees and expenses), judgments, fines,
+settlements, and other amounts arising from any and all claims, demands,
+actions, suits or proceedings, civil, criminal, administrative or investigative,
+that relate to the operations of the Partnership or the Company as set forth in
+this Agreement, in which such Indemnitee may be involved, or is threatened to be
+involved, as a party or otherwise, except to the extent such Indemnitee acted in
+bad faith, or with gross negligence or willful misconduct.  Without limitation,
+the foregoing indemnity shall extend to any liability of any Indemnitee,
+pursuant to a loan guaranty or otherwise for any indebtedness of the Partnership
+or any Subsidiary of the Partnership (including without limitation, any
+indebtedness which the Partnership or any Subsidiary of the Partnership has
+assumed or taken subject to), and the General Partner is hereby authorized and
+empowered, on behalf of the Partnership, to enter into one or more indemnity
+agreements consistent with the provisions of this Section 7.7 in favor of any
+Indemnitee having or potentially having liability for any such
+indebtedness.  Any indemnification pursuant to this Section 7.7 shall be made
+only out of the assets of the Partnership, and neither the General Partner nor
+any Limited Partner shall have any obligation to contribute to the capital of
+the Partnership, or otherwise provide funds, to enable the Partnership to fund
+its obligations under this Section 7.7.
+
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+
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+
+ 
+
+B.Reasonable expenses incurred by an Indemnitee who is a party to a proceeding
+shall be paid or reimbursed by the Partnership in advance of the final
+disposition of the proceeding, upon receipt by the Partnership of an undertaking
+by or on behalf of the Indemnitee to repay such amount if it shall be determined
+that the Indemnitee is not entitled to be indemnified as authorized in Section
+7.7(A).
+
+C.The indemnification provided by this Section 7.7 shall be in addition to any
+other rights to which an Indemnitee or any other Person may be entitled under
+any agreement, pursuant to any vote of the Partners, as a matter of law or
+otherwise, and shall continue as to an Indemnitee who has ceased to serve in
+such capacity unless otherwise provided in a written agreement pursuant to which
+such Indemnitees are indemnified.
+
+D.The Partnership may purchase and maintain insurance, on behalf of the
+Indemnitees and such other Persons as the General Partner shall determine,
+against any liability that may be asserted against or expenses that may be
+incurred by such Person in connection with the Partnership’s activities,
+regardless of whether the Partnership would have the power to indemnify such
+Person against such liability under the provisions of this Agreement.
+
+E.For purposes of this Section 7.7, the Partnership shall be deemed to have
+requested an Indemnitee to serve as fiduciary of an employee benefit plan
+whenever the performance by it of its duties to the Partnership also imposes
+duties on, or otherwise involves services by, it to the plan or participants or
+beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect
+to an employee benefit plan pursuant to applicable law shall constitute fines
+within the meaning of this Section 7.7; and actions taken or omitted by the
+Indemnitee with respect to an employee benefit plan in the performance of its
+duties for a purpose reasonably believed by it to be in the interest of the
+participants and beneficiaries of the plan shall be deemed to be for a purpose
+which is not opposed to the best interests of the Partnership.
+
+F.In no event may an Indemnitee subject any of the Partners to personal
+liability by reason of the indemnification provisions set forth in this
+Agreement.
+
+G.An Indemnitee shall not be denied indemnification in whole or in part under
+this Section 7.7 because the Indemnitee had an interest in the transaction with
+respect to which the indemnification applies if the transaction was otherwise
+permitted by the terms of this Agreement.
+
+H.The provisions of this Section 7.7 are for the benefit of the Indemnitees,
+their heirs, successors, assigns and administrators and shall not be deemed to
+create any rights for the benefit of any other Persons.  Any amendment,
+modification or repeal of this Section 7.7 or any provision hereof shall be
+prospective only and shall not in any way affect the Partnership’s liability to
+any Indemnitee under this Section 7.7, as in effect immediately prior to such
+amendment, modification, or repeal with respect to claims arising from or
+relating to matters occurring, in whole or in part, prior to such amendment,
+modification or repeal, regardless of when such claims may arise or be asserted.
+
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+
+ 
+
+Section 7.8.  Liability of the General Partner
+
+A.Notwithstanding anything to the contrary set forth in this Agreement, none of
+the General Partner, its Affiliates, or any of their respective officers,
+trustees, directors, shareholders, partners, members, employees, representatives
+or agents or any officer, employee, representative or agent of the Partnership
+and its Affiliates (individually, a “Covered Person” and collectively, the
+“Covered Persons”) shall be liable for monetary damages to the Partnership, any
+Partners or any Assignees for losses sustained or liabilities incurred as a
+result of errors in judgment or of any act or omission if the Covered Person’s
+conduct did not constitute bad faith, gross negligence or willful misconduct.
+
+B.The Limited Partners expressly acknowledge that the General Partner is acting
+on behalf of the Partnership, the Limited Partners and the Company collectively,
+that the General Partner is under no obligation to consider the separate
+interests of the Limited Partners (except as otherwise provided herein) in
+deciding whether to cause the Partnership to take (or decline to take) any
+actions.  In the event of a conflict between the interests of the Company on the
+one hand and the Limited Partners on the other, the General Partner shall,
+consult with the Board of Directors, endeavor in good faith to resolve the
+conflict in a manner not adverse to either the Company or the Limited Partners;
+provided, however, that any such conflict that the General Partner in good faith
+determines cannot be resolved in a manner not adverse to either the Company or
+the Limited Partners shall be resolved in favor of the Company.  The General
+Partner shall not be liable for monetary damages for losses sustained,
+liabilities incurred, or benefits not derived by Limited Partners in connection
+with such decisions; provided, that the General Partner has acted in good faith.
+
+C.Subject to its obligations and duties as General Partner set forth in Section
+7.1(A) hereof, the General Partner may exercise any of the powers granted to it
+by this Agreement and perform any of the duties imposed upon it hereunder either
+directly or by or through its employees and agents.
+
+D.Any amendment, modification or repeal of this Section 7.8 or any provision
+hereof shall be prospective only and shall not in any way affect the limitations
+on the Covered Person’s liability to the Partnership and the Limited Partners
+under this Section 7.8 as in effect immediately prior to such amendment,
+modification or repeal with respect to claims arising from or relating to
+matters occurring, in whole or in part, prior to such amendment, modification or
+repeal, regardless of when such claims may arise or be asserted.
+
+E.To the extent that, at law or in equity, a Covered Person has duties
+(including fiduciary duties) and liabilities relating thereto to the Partnership
+or to the Partners, any Covered Person acting under this Agreement or otherwise
+shall not be liable to the Partnership or to any Partner for its good faith
+reliance on the provisions of this Agreement.  The provisions of this Agreement,
+to the extent that they restrict the duties and liabilities of a Covered Person
+otherwise existing at law or in equity, are agreed by the Partners to replace
+such other duties and liabilities of such Covered Person.
+
+29
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+
+ 
+
+Section 7.9.  Other Matters Concerning the General Partner
+
+A.The General Partner may rely and shall be protected in acting, or refraining
+from acting, upon any resolution, certificate, statement, instrument, opinion,
+report, notice, request, consent, order, bond, debenture, or other paper or
+document believed by it in good faith to be genuine and to have been signed or
+presented by the proper party or parties.
+
+B.The General Partner may consult with legal counsel, accountants, appraisers,
+management consultants, investment bankers, architects, engineers, environmental
+consultants and other consultants and advisers selected by it, following the
+direction and approval of the Board of Directors, and any act taken or omitted
+to be taken in reliance upon the opinion of such Persons as to matters which the
+General Partner reasonably believes to be within such Person’s professional or
+expert competence shall be conclusively presumed to have been done or omitted in
+good faith and in accordance with such opinion.
+
+C.The General Partner shall have the right, in respect of any of its powers or
+obligations hereunder, to act through any of its duly authorized officers and
+duly appointed attorneys-in-fact.  Each such attorney shall, to the extent
+provided by the General Partner in the power of attorney, have full power and
+authority to do and perform each and every act and duty which is permitted or
+required to be done by the General Partner hereunder.
+
+D.Notwithstanding any other provisions of this Agreement or the Act, any action
+of the General Partner on behalf of the Partnership or any decision of the
+General Partner to refrain from acting on behalf of the Partnership, undertaken
+in the good faith belief that such action or omission is necessary or advisable
+in order (i) to protect the ability of the Company to continue to qualify as a
+REIT; (ii) for the Company to otherwise satisfy the REIT Requirements; or (iii)
+to avoid the Company incurring any taxes under Section 337(d), 857, 1374 or 4981
+of the Code, is expressly authorized under this Agreement and is deemed approved
+by all of the Limited Partners.
+
+Section 7.10.  Title to Partnership Assets
+
+Title to Partnership assets, whether real, personal or mixed and whether
+tangible or intangible, shall be deemed to be owned by the Partnership as an
+entity, and no Partner, individually or collectively, shall have any ownership
+interest in such Partnership assets or any portion thereof.
+
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+
+ 
+
+Section 7.11.  Reliance by Third Parties
+
+Notwithstanding anything to the contrary in this Agreement, any Person dealing
+with the Partnership shall be entitled to assume that the General Partner has
+full power and authority, without consent or approval of any other Partner or
+Person (unless set forth herein), to encumber, sell or otherwise use in any
+manner any and all assets of the Partnership and to enter into any contracts on
+behalf of the Partnership, and take any and all actions on behalf of the
+Partnership and such Person shall be entitled to deal with the General Partner
+as if the General Partner were the Partnership’s sole party in interest, both
+legally and beneficially.  Each Limited Partner hereby waives any and all
+defenses or other remedies which may be available against such Person to
+contest, negate or disaffirm any action of the General Partner in connection
+with any such dealing.  In no event shall any Person dealing with the General
+Partner or its representatives be obligated to ascertain that the terms of this
+Agreement have been complied with or to inquire into the necessity or expedience
+of any act or action of the General Partner or its representatives.  Each and
+every certificate, document or other instrument executed on behalf of the
+Partnership by the General Partner or its representatives shall be conclusive
+evidence in favor of any and every Person relying thereon or claiming thereunder
+that (i) at the time of the execution and delivery of such certificate, document
+or instrument, this Agreement was in full force and effect; (ii) the Person
+executing and delivering such certificate, document or instrument was duly
+authorized and empowered to do so for and on behalf of the Partnership; and
+(iii) such certificate, document or instrument was duly executed and delivered
+in accordance with the terms and provisions of this Agreement and is binding
+upon the Partnership.
+
+ARTICLE 8.
+
+RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
+
+Section 8.1.  Limitation of Liability
+
+Each Limited Partner acting in its capacity as such shall have no liability
+under this Agreement except for liability resulting from: (a) an act or omission
+on the part of such Limited Partner that was committed in bad faith or was the
+result of active and deliberate dishonesty; (b) in the case of any criminal
+proceeding, an act or omission that such Limited Partner had reasonable cause to
+believe was unlawful; (c) any transaction for which such Limited Partner
+actually received an improper personal benefit in money, property or services in
+violation or breach of any provision of this Agreement; or (d) as expressly
+provided in this Agreement or under the Act.
+
+31
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+
+ 
+
+Section 8.2.  Management of Business
+
+No Limited Partner or Assignee (other than the General Partner, any of its
+Affiliates or any officer, trustee, director, member, employee or agent of the
+General Partner, the Partnership or any of their Affiliates, in their capacity
+as such) shall take part in the operation, management or control (within the
+meaning of the Act) of the Partnership’s business, transact any business in the
+Partnership’s name or have the power to sign documents for or otherwise bind the
+Partnership. The transaction of any such business by the General Partner, any of
+its Affiliates or any officer, trustee, director, member, employee or agent of
+the General Partner, the Partnership or any of their Affiliates, in their
+capacity as such, shall not affect, impair or eliminate the limitations on the
+liability of the Limited Partners or Assignees under this Agreement.
+
+Section 8.3.  Outside Activities of Limited Partners
+
+Subject to any agreements entered into by a Limited Partner or its Affiliates
+with the Partnership or any of its Subsidiaries, any Limited Partner (other than
+the Company) and any officer, trustee, director, member, employee, agent,
+trustee, Affiliate or shareholder of any such Limited Partner shall be entitled
+to and may have business interests and engage in business activities in addition
+to those relating to the Partnership, including business interests and
+activities that are in direct competition with the Partnership or that are
+enhanced by the activities of the Partnership.  Neither the Partnership nor any
+Partners shall have any rights by virtue of this Agreement in any business
+ventures of any Limited Partner or Assignee. None of the Limited Partners (other
+than the Company) nor any other Person shall have any rights by virtue of this
+Agreement or the Partnership relationship established hereby in any business
+ventures of any other Person and such Person shall have no obligation pursuant
+to this Agreement to offer any interest in any such business ventures to the
+Partnership, any Limited Partner or any such other Person, even if such
+opportunity is of a character which, if presented to the Partnership, any
+Limited Partner or such other Person, could be taken by such Person.
+
+Section 8.4.  Return of Capital
+
+Except pursuant to the right of redemption set forth in Section 8.6, no Limited
+Partner shall be entitled to the withdrawal or return of its Capital
+Contribution, except to the extent of distributions made pursuant to this
+Agreement or upon termination of the Partnership as provided herein.  Except to
+the extent provided by Exhibit C hereof or as otherwise expressly provided in
+this Agreement, no Limited Partner or Assignee shall have priority over any
+other Limited Partner or Assignee, either as to the return of Capital
+Contributions or as to profits, losses or distributions.
+
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+
+ 
+
+Section 8.5.  Rights of Limited Partners Relating to the Partnership
+
+A.In addition to the other rights provided by this Agreement or by the Act, and
+except as limited by Section 8.5(C), each Limited Partner shall have the right,
+for a purpose reasonably related to such Limited Partner’s interest as a limited
+partner in the Partnership, upon written demand with a statement of the purpose
+of such demand and at such Limited Partner’s own expense (including such copying
+and administrative charges as the General Partner may establish from time to
+time):
+
+(1)to obtain a copy of the Partnership’s federal, state and local income tax
+returns for each Partnership Year;
+
+(2)to obtain a copy of this Agreement and the Certificate and all amendments
+thereto, together with executed copies of all powers of attorney pursuant to
+which this Agreement, the Certificate and all amendments thereto have been
+executed; and
+
+(3)to obtain true and full information regarding the amount of cash and a
+description and statement of any other property or services contributed by each
+Partner and which each Partner has agreed to contribute in the future, and the
+date on which each became a Partner.
+
+B.The Partnership shall notify each Limited Partner, upon request, of the then
+current Conversion Factor.
+
+C.Notwithstanding any other provision of this Section 8.5, the General Partner
+may keep confidential from the Limited Partners for such period of time as the
+General Partner determines, following the direction and approval of the Board of
+Directors to be reasonable, any information that (i) the General Partner
+reasonably believes to be in the nature of trade secrets or other information,
+the disclosure of which the General Partner in good faith believes is not in the
+best interests of the Partnership or could damage the Partnership or its
+business; or (ii) the Partnership is required by law or by agreements with an
+unaffiliated third party to keep confidential.
+
+Upon written request by any Limited Partner, the General Partner shall cause the
+ownership of Partnership Interests by such Limited Partner to be evidenced by a
+certificate in such form as the General Partner may determine with respect to
+any class of Partnership Interests issued from time to time under this
+Agreement. The General Partner may direct a new certificate or certificates to
+be issued in place of any certificate or certificates theretofore issued by the
+Partnership alleged to have been lost, destroyed, stolen or mutilated, upon the
+making of an affidavit of that fact by the person claiming the certificate to be
+lost, destroyed, stolen or mutilated. Unless otherwise determined by the General
+Partner, the owner of such lost, destroyed, stolen or mutilated certificate or
+certificates, or his or her legal representative, shall be required, as a
+condition precedent to the issuance of a new certificate or certificates, to
+give the Partnership a bond in such sum as the General Partner may direct as
+indemnity against any claim that may be made against the Partnership.
+
+33
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+
+Section 8.6.  Redemption Right
+
+A.Subject to Sections 8.6(B) and 8.6(C) hereof and at any time on or after such
+date as expressly provided for in any agreement entered into between the
+Partnership and any Limited Partner, each holder of a Common Unit (if other than
+the General Partner) shall have the right (the “Redemption Right”) to require
+the Partnership to redeem on a Specified Redemption Date all or a portion of the
+Partnership Units (provided that such Partnership Units constitute Common Units)
+held by such holder at a redemption price equal to and in the form of the Cash
+Amount to be paid by the Partnership; provided that the Partnership Units shall
+have been outstanding for at least one year; provided, further, that the General
+Partner, following the direction and approval of the Board of Directors, may
+allow a holder to exercise its Redemption Right prior to the Common Units being
+outstanding for one year in its discretion.  The Redemption Right shall be
+exercised pursuant to a Notice of Redemption delivered to the Partnership (with
+a copy to the General Partner) by the holder who is exercising the redemption
+right (the “Redeeming Partner”); provided, however, that the Partnership shall
+not be obligated to satisfy such Redemption Right if the Operating Partnership
+elects to purchase the Partnership Units subject to the Notice of Redemption
+pursuant to Section 8.6(B).  A holder under this Section 8.6(A) may not exercise
+the Redemption Right for less than 1,000 Partnership Units at any one time or,
+if such holder holds less than 1,000 Partnership Units, all of the Partnership
+Units held by such Partner.  The Redeeming Partner shall have no right, with
+respect to any Partnership Units so redeemed, to receive any distributions paid
+on or after the Specified Redemption Date.  The Assignee of any holder herein
+may exercise the rights of such Limited Partner pursuant to this Section 8.6(A),
+and such Limited Partner shall be deemed to have assigned such rights to such
+Assignee and shall be bound by the exercise of such rights by such Assignee.  In
+connection with any exercise of such rights by an Assignee on behalf of a holder
+in this Section 8.6(A), the Cash Amount shall be paid by the Partnership
+directly to such Assignee and not to such holder.  Any Partnership Units
+redeemed by the Partnership pursuant to this Section 8.6(A) shall be cancelled
+upon such redemption.
+
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+
+B.Notwithstanding the provisions of Section 8.6(A), a Limited Partner that
+exercises the Redemption Right shall be deemed to have offered to sell the
+Partnership Units described in the Notice of Redemption to the Operating
+Partnership, and the Operating Partnership may, in its sole and absolute
+discretion, elect to purchase directly and acquire such Partnership Units by
+paying to the Redeeming Partner either the Cash Amount or the OP Unit Amount, as
+elected by the Operating Partnership in its sole and absolute discretion, on the
+Specified Redemption Date, whereupon the Operating Partnership shall acquire the
+Partnership Units offered for redemption by the Redeeming Partner and shall be
+treated for all purposes of this Agreement as the owner of such Partnership
+Units.  If the Operating Partnership shall elect to exercise its right to
+purchase Partnership Units under this Section 8.6(B) with respect to a Notice of
+Redemption, it shall so notify the Redeeming Partner within five Business Days
+after the receipt by it of such Notice of Redemption.  Unless the Operating
+Partnership (in its sole and absolute discretion) shall exercise its right to
+purchase Partnership Units from the Redeeming Partner pursuant to this Section
+8.6(B), the Operating Partnership shall not have any obligation to the Redeeming
+Partner or the Partnership with respect to the Redeeming Partner’s exercise of
+the Redemption Right.  In the event the Operating Partnership shall exercise its
+right to purchase Partnership Units with respect to the exercise of a Redemption
+Right in the manner described in the first sentence of this Section 8.6(B), the
+Partnership shall have no obligation to pay any amount to the Redeeming Partner
+with respect to such Redeeming Partner’s exercise of such Redemption Right, and
+each of the Redeeming Partner, the Partnership and the Operating Partnership
+shall treat the transaction between the Operating Partnership and the Redeeming
+Partner, for federal income tax purposes, as a sale of the Redeeming Partner’s
+Partnership Units to the Operating Partnership.  Each Redeeming Partner agrees
+to execute such documents as the Operating Partnership may reasonably require in
+connection with the issuance of OP Units upon exercise of the Redemption
+Right.  In case of any reclassification of OP Units (including, but not limited
+to, any reclassification upon a consolidation or merger in which the Operating
+Partnership is the surviving entity) into securities other than OP Units, for
+purposes of this Section 8.6(B), the Operating Partnership (or its successor)
+may thereafter exercise its right to purchase Partnership Units for the kind and
+amount of shares of such securities receivable upon such reclassification by a
+holder of the number of OP Units for which such Partnership Units could be
+purchased pursuant to this Section immediately prior to such reclassification.
+
+C.Notwithstanding the provisions of Section 8.6(A) and Section 8.6(B), a Partner
+shall not be entitled to exercise the Redemption Right pursuant to Section
+8.6(A) to the extent that the delivery of OP Units to such Partner on the
+Specified Redemption Date by the Operating Partnership pursuant to Section
+8.6(B) (regardless of whether or not the Operating Partnership would in fact
+exercise its rights under Section 8.6(B)) would (i) be prohibited, as determined
+in the sole discretion of the Operating Partnership, by law or any other
+agreement applicable to the Operating Partnership or (ii) cause the acquisition
+of OP Units by such Partner to be “integrated” with any other distribution of OP
+Units for purposes of complying with the Securities Act.
+
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+
+D.Each Partner covenants and agrees that all Partnership Units delivered for
+redemption shall be delivered to the Partnership free and clear of all liens;
+and, notwithstanding anything contained herein to the contrary, the Partnership
+shall be under no obligation to acquire Partnership Units which are or may be
+subject to any liens. Each Partner further agrees that, if any state or local
+property transfer tax is payable as a result of the transfer of its Partnership
+Units to the Partnership, such Partner shall assume and pay such transfer tax.
+
+ARTICLE 9.
+
+BOOKS, RECORDS, ACCOUNTING AND REPORTS
+
+Section 9.1.  Records and Accounting
+
+The General Partner shall keep or cause to be kept at the principal office of
+the Partnership those records and documents required to be maintained by the Act
+and other books and records deemed by the General Partner to be appropriate with
+respect to the Partnership’s business, including, without limitation, all books
+and records necessary to provide to the Limited Partners any information, lists
+and copies of documents required to be provided pursuant to Section 9.3
+hereof.  The books of the Partnership shall be maintained, for financial and tax
+reporting purposes, on an accrual basis in accordance with GAAP, or such other
+basis as the General Partner determines to be necessary or appropriate following
+the direction and approval of the Board of Directors.
+
+Section 9.2.  Fiscal Year
+
+The fiscal year of the Partnership shall be the calendar year.
+
+Section 9.3.  Reports
+
+A.As soon as practicable, but in no event later than 105 days after the close of
+each Partnership Year, the General Partner shall cause to be mailed to each
+Limited Partner as of the close of the Partnership Year, an annual report
+containing financial statements of the Partnership, or of the Company if such
+statements are prepared solely on a consolidated basis with the Company, for
+such Partnership Year, presented in accordance with GAAP, such statements to be
+audited by a nationally recognized firm of independent public accountants
+selected by the Company; provided, that if such financial statements of the
+Company are available on the Securities and Exchange Commission’s website, then
+this obligation shall be satisfied.
+
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+
+B.As soon as practicable, but in no event later than 105 days after the close of
+each calendar quarter (except the last calendar quarter of each year), the
+General Partner shall cause to be mailed to each Limited Partner as of the last
+day of the calendar quarter, a report containing unaudited financial statements
+of the Partnership, or of the Company, if such statements are prepared solely on
+a consolidated basis with the Company, and such other information as may be
+required by applicable law or regulation, or as the General Partner determines
+to be appropriate; provided that if such financial statements of the Company are
+available on the Securities and Exchange Commission’s website, then this
+obligation shall be satisfied.
+
+C.The Partnership shall also cause to be promptly prepared such reports and/or
+information as are necessary for the Company to determine its qualification as a
+REIT and its compliance with the requirements for REITs pursuant to the Code and
+Regulations.
+
+ARTICLE 10.
+
+TAX MATTERS
+
+Section 10.1.  Preparation of Tax Returns
+
+The General Partner, following the direction and approval of the Board of
+Directors, shall arrange for the preparation and timely filing of all returns of
+Partnership income, gains, deductions, losses and other items required of the
+Partnership for federal and state income tax purposes and shall furnish by July
+31 of the year immediately following each taxable year, or as soon as reasonably
+practicable thereafter, the tax information reasonably required by Limited
+Partners for federal and state income tax reporting purposes.
+
+Section 10.2.  Tax Elections
+
+Except as otherwise provided herein, the General Partner, following the
+direction and approval of the Board of Directors, shall determine whether to
+make any available election pursuant to the Code.  Notwithstanding the above, in
+making any such tax election the General Partner and the Board of Directors may,
+but shall be under no obligation to, take into account the tax consequences to
+the Limited Partners resulting from any such election.
+
+The General Partner can, following the direction and approval of the Board of
+Directors, elect to use any method permitted by Section 704(c) of the Code and
+the Regulations thereunder to take into account any variation between the
+adjusted basis of any property contributed (or deemed contributed) to the
+Partnership by any Partner after the date hereof and such property’s initial
+Carrying Value.  The General Partner shall have the right, following the
+direction and approval of the Board of Directors, regarding the exercise of that
+right, to seek to revoke any tax election it makes (including, without
+limitation, an election under Section 754 of the Code) upon the General
+Partner’s determination, following the direction and approval of the Board of
+Directors, that such revocation is in the best interests of the Partners.
+
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+
+Section 10.3.  Partnership Representative
+
+A.The General Partner, or such Person as may alternatively be designated by the
+General Partner, following the direction and approval of the Board of Directors,
+shall be the “partnership representative” (within the meaning of Section 6223 of
+the Code) (the “Partnership Representative”).  The taking of any action and the
+incurring of any expense by the Partnership Representative in connection with
+any such proceeding, except to the extent required by law, is a matter of the
+Partnership Representative, following the direction and approval of the Board of
+Directors, and the provisions relating to indemnification provisions set forth
+in Section 7.7 of this Agreement shall be fully applicable to the Partnership
+Representative in its capacity as such.  Each Partner hereby agrees to cooperate
+with, and to take all reasonable actions requested by the Partnership
+Representative and the Partnership, to avoid or reduce any tax imposed under
+Section 6225 of the Code, including (i) taking such actions as may be required
+to effect the General Partner’s designation as the Partnership Representative,
+and on behalf of the Partnership, the General Partner’s (or its designee’s)
+appointment of any “designated individual,” (ii) providing any information or
+taking such other actions as may be reasonably requested by the Partnership
+Representative in order to determine whether any “imputed underpayment” (within
+the meaning of Section 6225 of the Code) may be modified pursuant to Section
+6225(c) of the Code, (iii) providing any information or taking such other
+actions as may be reasonably requested by the Partnership Representative in
+connection with any election made by the Partnership Representative pursuant to
+Section 6226 of the Code, and (iv) upon the request of the Partnership
+Representative, filing any amended U.S. federal income tax return or comply with
+the alternative procedure described in Section 6225(c)(2)(B) of the Code, and
+paying any tax due in connection with such tax return in accordance with Section
+6225(c)(2) of the Code or any corresponding provision of applicable state or
+local law. The provisions of this Section 10.3 and a Partner’s obligation to
+comply with this Section 10.3 shall survive any liquidation and dissolution of
+the Partnership and the transfer, assignment or liquidation of such Partner’s
+Partnership Interest (including for the avoidance of doubt through exercise of
+the Redemption Right).
+
+B.The Partnership Representative shall receive no compensation for its
+services.  All third party costs and expenses incurred by the Partnership
+Representative in performing its duties as such (including legal and accounting
+fees and expenses) shall be borne by the Partnership.  Nothing herein shall be
+construed to restrict the Partnership from engaging an accounting and/or law
+firm to assist the Partnership Representative in discharging its duties
+hereunder, so long as the compensation paid by the Partnership for such services
+is reasonable.
+
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+
+Section 10.4.  Withholding
+
+Each Limited Partner hereby authorizes the Partnership to withhold from, or pay
+on behalf of or with respect to, such Limited Partner any amount of federal,
+state, local, or foreign taxes that the General Partner, following the direction
+and approval of the Board of Directors determines that the Partnership is
+required to withhold or pay with respect to any amount distributable or
+allocable to such Limited Partner pursuant to this Agreement, including, without
+limitation, any taxes required to be withheld or paid by the Partnership
+pursuant to Section 1441, 1442, 1445, or 1446 of the Code, and any taxes paid by
+the Partnership with respect to an imputed underpayment.  Any amount paid on
+behalf of or with respect to a Limited Partner shall constitute a loan by the
+Partnership to such Limited Partner, which loan shall be repaid by such Limited
+Partner within 15 days after notice from the General Partner that such payment
+must be made unless (i) the Partnership withholds such payment from a
+distribution which would otherwise be made to the Limited Partner, or (ii) the
+General Partner determines, following the direction and approval of the Board of
+Directors, that such payment may be satisfied out of the available funds of the
+Partnership which would, but for such payment, be distributed to the Limited
+Partner.  Any amounts withheld pursuant to the foregoing clause (i) or (ii)
+shall be treated as having been distributed (or paid) to such Limited
+Partner.  In the event that a Limited Partner fails to pay any amounts owed to
+the Partnership pursuant to this Section 10.4 when due, the General Partner may,
+following the direction and approval of the Board of Directors, elect to make
+the payment to the Partnership on behalf of such defaulting Limited Partner, and
+in such event shall be deemed to have loaned such amount to such defaulting
+Limited Partner and shall succeed to all rights and remedies of the Partnership
+as against such defaulting Limited Partner.  Without limitation, in such event
+the General Partner shall have the right to receive distributions that would
+otherwise be distributable to such defaulting Limited Partner until such time as
+such loan, together with all interest thereon, has been paid in full, and any
+such distributions so received by the General Partner shall be treated as having
+been distributed to the defaulting Limited Partner and immediately paid by the
+defaulting Limited Partner to the General Partner in repayment of such
+loan.  Any amounts payable by a Limited Partner hereunder shall bear interest at
+the lesser of (A) the base rate on corporate loans at large United States money
+center commercial banks, as published from time to time in The Wall Street
+Journal, plus four percentage points, or (B) the maximum lawful rate of interest
+on such obligation, such interest to accrue from the date such amount is due
+(i.e., 15 days after demand) until such amount is paid in full.  Each Limited
+Partner shall take such actions as the Partnership or the General Partner shall
+request in order to perfect or enforce the security interest created
+hereunder.  Upon a Limited Partner’s complete withdrawal from the Partnership,
+such Limited Partner shall be required to restore funds to the Partnership to
+the extent that the cumulative amount of taxes withheld from or paid on behalf
+of, or with respect to, such Limited Partner exceeds the sum of such amounts (i)
+repaid to the Partnership by such Limited Partner, (ii) withheld from
+distributions to such Limited Partner and (iii) paid by the General Partner on
+behalf of such Limited Partner.
+
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+
+ARTICLE 11.
+
+TRANSFERS AND WITHDRAWALS
+
+Section 11.1.  Transfer
+
+A.The term “transfer,” when used in this Article 11 with respect to a
+Partnership Unit, shall be deemed to refer to a transaction by which the General
+Partner purports to assign all or any part of its General Partner Interest to
+another Person or by which a Limited Partner purports to assign all or any part
+of its Limited Partner Interest to another Person, and includes a sale,
+assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any
+other disposition by law or otherwise.  The term “transfer” when used in this
+Article 11 does not include (i) any redemption of Partnership Interests by the
+Partnership from a Limited Partner, (ii) any acquisition of Partnership Units
+from a Limited Partner by the Operating Partnership pursuant to Section 8.6, or
+(iii) any distribution of Partnership Units by a Limited Partner to its
+beneficial owners.
+
+B.No Partnership Interest shall be transferred, in whole or in part, except in
+accordance with the terms and conditions set forth in this Article 11.  Any
+transfer or purported transfer of a Partnership Interest not made in accordance
+with this Article 11 shall be null and void.
+
+C.Notwithstanding the other provisions of this Article 11, the Partnership
+Interests of the Company may be transferred, in whole or in part, at any time or
+from time to time, to any Person that is, at the time of such transfer, a
+Qualified REIT Subsidiary.  Upon any transfer permitted by this Section 11.1(C),
+the Company shall be relieved of all its obligations under this Agreement.  The
+provisions of Sections 11.2(B), 11.3, 11.4(A) and 11.5 hereof shall not apply to
+any transfer permitted by this Section 11.1(C).
+
+Section 11.2.  Transfer of General Partner Interest
+
+A.The General Partner may not transfer any of its General Partner Interest or
+withdraw as General Partner, or transfer any of its Limited Partner Interest,
+except as provided in Section 11.2(B) or Section 11.2(C) hereof.
+
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+
+B.Except as set forth in Section 11.2(C), the General Partner shall not withdraw
+from the Partnership and shall not transfer all or any portion of its Partner
+Interests in the Partnership (whether by sale, disposition, statutory merger or
+consolidation, liquidation or otherwise) unless approved by the Board of
+Directors.  Upon any transfer of the General Partner’s Partnership Interest in
+accordance with the provisions of this Section 11.2(B), the transferee shall
+become a successor General Partner for all purposes herein, and shall be vested
+with the powers and rights of the transferor General Partner, and shall be
+liable for all obligations and responsible for all duties of the General
+Partner, once such transferee has executed such instruments as may be necessary
+to effectuate such admission and to confirm the agreement of such transferee to
+be bound by all the terms and provisions of this Agreement with respect to the
+Partnership Interest so acquired.  It is a condition to any transfer by the
+General Partner otherwise permitted hereunder that the transferee assumes, by
+operation of law or express agreement, all of the obligations of the transferor
+General Partner under this Agreement with respect to such transferred
+Partnership Interest; provided, such transfer shall not relieve the transferor
+General Partner of its obligations under this Agreement without the approval of
+the Board of Directors.  In the event that the General Partner withdraws from
+the Partnership, in violation of this Agreement or otherwise, the remaining
+Partners may agree in writing to continue the business of the Partnership by
+selecting a successor General Partner in accordance with the Act.
+
+C.In the event a Bankruptcy Event occurs with respect to the General Partner,
+the General Partner shall automatically withdraw from the Partnership, in its
+role as the General Partner, without any action on the part of the General
+Partner or any other Person, and shall transfer all of its General Partner
+Interest in the Partnership to the successor general partner selected by the
+Board of Directors.
+
+Section 11.3.  Limited Partners’ Rights to Transfer
+
+A.Except as provided in Section 11.3(B), no Limited Partner shall transfer all
+or any portion of its Partnership Interest to any transferee without the
+approval of the Board of Directors; provided, however, that if a Limited Partner
+is subject to Incapacity, such Incapacitated Limited Partner may transfer all or
+any portion of its Partnership Interest.
+
+B.Notwithstanding any other provision of this Article 11, a Limited Partner may
+transfer all or any portion of its Partnership Interest to any of its Affiliates
+and such transferee shall be admitted as a Substituted Limited Partner, all
+without obtaining the approval of the Board of Directors, unless such Affiliate
+does not qualify as an “accredited investor” as such term is defined in Rule
+501(a) of Regulation D.
+
+C.If a Limited Partner is subject to Incapacity, the executor, administrator,
+trustee, committee, guardian, conservator or receiver of such Limited Partner’s
+estate shall have all of the rights of a Limited Partner, but not more rights
+than those enjoyed by other Limited Partners, for the purpose of settling or
+managing the estate and such power as the Incapacitated Limited Partner
+possessed to transfer all or any part of his or its interest in the
+Partnership.  The Incapacity of a Limited Partner, in and of itself, shall not
+dissolve or terminate the Partnership.
+
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+
+D.Without limiting the generality of Section 11.3(B) hereof, the Board of
+Directors may prohibit any transfer by a Limited Partner of its Partnership
+Interest if, in the opinion of legal counsel to the Partnership or the Company,
+such transfer would require filing of a registration statement under the
+Securities Act or would otherwise violate any federal or state securities laws
+or regulations applicable to the Partnership or the Partnership Units.
+
+E.No transfer by a Limited Partner of its Partnership Units may be made to any
+Person if (i) in the opinion of legal counsel for the Partnership or the Company
+it could result in the Partnership being treated as an association taxable as a
+corporation or a publicly traded partnership within the meaning of either
+Section 469(k)(2) or Section 7704(b) of the Code; (ii) such transfer could be
+treated as effectuated through an “established securities market” or a
+“secondary market (or the substantial equivalent thereof)” within the meaning of
+Section 7704 of the Code; (iii) such transfer could cause the Partnership to
+become, with respect to any employee benefit plan subject to Title I of ERISA or
+to Section 4975 of the Code, a “party-in-interest” (as defined in Section 3(14)
+of ERISA) or a “disqualified person” (as defined in Section 4975(c) of the
+Code); (iv) such transfer could, in the opinion of legal counsel for the
+Partnership or the Company, cause any portion of the assets of the Partnership
+to constitute assets of any employee benefit plan pursuant to Department of
+Labor Regulations Section 2510.3-101; or (v) such transfer could subject the
+Partnership to be regulated under the Investment Company Act of 1940, as
+amended, the Investment Advisers Act of 1940, as amended, or the fiduciary
+responsibility provisions of ERISA.
+
+F.No transfer of any Partnership Units may be made to a lender to the
+Partnership or any Person who is related (within the meaning of Section
+1.752-4(b) of the Regulations) to any lender to the Partnership whose loan
+constitutes a Nonrecourse Liability, without the approval of the Board of
+Directors.
+
+G.The General Partner shall keep a register for the Partnership on which the
+transfer, pledge or release of Partnership Units shall be shown and pursuant to
+which entries shall be made to effect all transfers, pledges or releases as
+required by the applicable sections of Article 8 of the Uniform Commercial Code,
+as amended, in effect in the State of Delaware.  The General Partner shall (i)
+place proper entries in such register clearly showing each transfer and each
+pledge and grant of security interest and the transfer and assignment pursuant
+thereto, such entries to be endorsed by the General Partner, and (ii) maintain
+the register and make the register available for inspection by all of the
+Partners and their pledgees at all times during the term of this
+Agreement.  Nothing herein shall be deemed a consent to any pledge or transfer
+otherwise prohibited under this Agreement.
+
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+
+Section 11.4.  Substituted Limited Partners
+
+A.No Limited Partner shall have the right to substitute a transferee as a
+Limited Partner in his or its place except upon approval of the Board of
+Directors.  Following such approval of the Board of Directors, the transferee of
+the interest of such Limited Partner shall be admitted pursuant to this Section
+11.4 as a Substituted Limited Partner.  The Board of Directors’ failure or
+refusal to permit a transferee of any such interests to become a Substituted
+Limited Partner shall not give rise to any cause of action against the
+Partnership, any Partner, or the Board of Directors.  A Person shall be admitted
+to the Partnership as a Substituted Limited Partner only upon the aforementioned
+consent of the Board of Directors and the furnishing to the Partnership of (i)
+evidence of acceptance in form satisfactory to the General Partner of all of the
+terms and conditions of this Agreement, including, without limitation, the power
+of attorney granted in Section 2.4 hereof and (ii) such other documents to
+effect such Person’s admission as a Substituted Limited Partner.  The admission
+of any Person as a Substituted Limited Partner shall become effective on the
+date upon which the name of such Person is recorded on the books and records of
+the Partnership, following the consent of the Board of Directors to such
+admission.
+
+B.A transferee who has been admitted as a Substituted Limited Partner in
+accordance with this Article 11 shall have all the rights and powers and be
+subject to all the restrictions and liabilities of a Limited Partner under this
+Agreement.
+
+C.Upon the admission of a Substituted Limited Partner, the General Partner shall
+amend Exhibit A to reflect the name, address, number of Partnership Units and
+Percentage Interest (as applicable) of such Substituted Limited Partner and to
+eliminate or adjust, if necessary, the name, address and interest of the
+predecessor of such Substituted Limited Partner.
+
+Section 11.5.  Assignees
+
+If the Board of Directors does not consent to the admission of any permitted
+transferee as a Substituted Limited Partner, as described in Section 11.4, such
+transferee shall be considered an Assignee for purposes of this Agreement.  An
+Assignee shall be deemed to have had assigned to it, and shall be entitled to
+receive distributions from the Partnership and the share of Net Income, Net
+Losses, Recapture Income, and any other items, gain, loss, deduction and credit
+of the Partnership attributable to the Partnership Interest assigned to such
+transferee, but shall not be deemed to be a holder of a Partnership Interest for
+any other purpose under this Agreement, and shall not be entitled to vote such
+Partnership Interest in any matter presented to the Limited Partners for a vote
+(such Partnership Interest being deemed to have been voted on such matter in the
+same proportion as all other Partnership Interest held by Limited Partners are
+voted).  In the event any such transferee desires to make a further assignment
+of any such Partnership Interest, such transferee shall be subject to all of the
+provisions of this Article 11 to the same extent and in the same manner as any
+Limited Partner desiring to make an assignment of his or its Partnership
+Interest.
+
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+
+Section 11.6.  Drag-Along Rights
+
+A.In the event of an Approved Sale, the Partners who approved the Approved Sale
+(the “Approving Partners”) have the right to require each other Partner (the
+“Non-Approving Partners”) to transfer all Partnership Units then held by such
+Non-Approving Partner, free and clear of all liens, security interests or other
+restrictions of any kind, in accordance with this Section 11.6.
+
+B.In the event of an Approved Sale, the General Partner shall notify each
+Non-Approving Partner no more than 10 Business Days after the execution and
+delivery by all of the parties thereto of the definitive agreement entered into
+with respect to the Approved Sale and, in any event, no later than 20 Business
+Days prior to the closing date of such Approved Sale, and each Non-Approving
+Partner will, subject to satisfaction of the conditions in Section 11.6(C), (i)
+if such transaction requires approval by the Partners, with respect to all
+Partnership Units that such Partner owns or over which such Partner otherwise
+exercises voting power, to vote (in person, by proxy or by action by written
+consent, as applicable) all such Partnership Units in favor of, and adopt, such
+Approved Sale, and to vote in opposition to any and all other proposals that
+could reasonably be expected to delay or impair the ability of the Partnership
+to consummate such Sale of the Partnership, (ii) refrain from exercising any
+dissenter’s rights or rights of appraisal under applicable law at any time with
+respect to such Approved Sale, and (iii) if the Approved Sale is structured as a
+sale of Partnership Units, each Non-Approving Partner will agree to sell the
+same proportion of Partnership Units beneficially held by such Partner as is
+being sold by the Approving Partners to the Person(s) to whom the Approving
+Partners propose to sell their Partnership Units, on the same terms and
+conditions as the Approving Partners.  
+
+C.The obligations of the Partners pursuant to this Section 11.6 with respect to
+an Approved Sale are subject to the following conditions: (i) the aggregate
+consideration payable upon consummation of such Approved Sale to all of the
+Partners (the “Aggregate Consideration”) shall be allocated among the Partners
+as set forth in Section 5.3, (ii) upon the consummation of the Approved Sale,
+all of the Partners shall receive the same form of consideration per Partnership
+Unit of the same class or other equity interest, as allocated pursuant to
+subsection (i) hereof (except that a member of management may, with such
+Partner’s consent, receive securities pursuant to a management “rollover” which
+are not offered to all Partners), and (iii) that any indemnification, escrow,
+holdback and adjustment obligations undertaken by any Partner shall be pro rata
+among the Partners in proportion to the consideration to be received by the
+Partners in such Approved Sale; provided that indemnification obligations that
+relate solely to a particular Partner, such as indemnification with respect to
+representations and warranties made by a Partner with respect to such Partner
+(or such Partner’s ownership of Partnership Units) or covenants made by such
+Partner, shall be borne only by such Partner and shall not be deemed to reduce
+the Aggregate Consideration.
+
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+
+D.Subject to the foregoing, each Partner hereby agrees to execute and deliver
+all related documentation and take such other action in support of the Sale of
+the Partnership as shall reasonably be requested by the General Partner or the
+Approving Partners in order to carry out the terms and provision of
+this Section 11.6, including without limitation executing and delivering
+instruments of conveyance and transfer, and any purchase agreement, merger
+agreement, indemnity agreement, escrow agreement, consent, waiver, governmental
+filing, share certificates duly endorsed for transfer (free and clear of
+impermissible liens, claims and encumbrances) and any similar or related
+documents.  Subject to the satisfaction of the conditions in Section 11.6(C),
+for purposes each Partner (and their respective spouses, if residing in a
+community property state) hereby appoint the General Partner as their agent and
+attorney-in-fact to execute any and all documents related in connection with an
+Approved Sale (including documents granting customary indemnities to a buyer of
+assets or securities consistent with this Agreement) on their behalf and
+expressly bind themselves to such document by the General Partner’s execution of
+such document without further action on their part.
+
+Section 11.7. General Provisions
+
+A.No Limited Partner may withdraw from the Partnership other than as a result of
+a permitted transfer of all of such Limited Partner’s Partnership Interest in
+accordance with this Article 11, pursuant to redemption of all of its
+Partnership Units, or the acquisition thereof by the Company, under Section 8.6.
+
+B.Any Limited Partner who shall transfer all of its Partnership Interest in a
+transfer permitted pursuant to this Article 11 shall cease to be a Limited
+Partner upon the admission of all Assignees of such Partnership Interest as
+Substituted Limited Partners.  Similarly, any Limited Partner who shall transfer
+all of its Partnership Units pursuant to a redemption of all of its Partnership
+Units, or the acquisition thereof by the Company under Section 8.6 shall cease
+to be a Limited Partner.
+
+C.Transfers pursuant to this Article 11 may only be made on the first day of a
+fiscal quarter of the Partnership, unless the General Partner and the Board of
+Directors otherwise agrees.
+
+D.If any Partnership Interest is transferred or assigned during any quarterly
+segment of the Partnership’s fiscal year in compliance with the provisions of
+this Article 11 or redeemed or transferred pursuant to Section 8.6 on any day
+other than the first day of a Partnership Year, then Net Income, Net Losses,
+each item thereof and all other items attributable to such interest for such
+Partnership Year shall be divided and allocated between the transferor Partner
+and the transferee Partner by taking into account their varying interests during
+the Partnership Year in accordance with Section 706(d) of the Code, using the
+interim closing of the books method.  All distributions of Available Cash
+attributable to such Partnership Interest with respect to which the Partnership
+Record Date is before the date of such transfer, assignment, or redemption shall
+be made to the transferor Partner or the Redeeming Partner, as the case may be,
+and in the case of a transfer or assignment other than a redemption, all
+distributions of Available Cash thereafter attributable to such Partnership
+Interest shall be made to the transferee Partner.
+
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+
+ARTICLE 12.
+
+ADMISSION OF PARTNERS
+
+Section 12.1.  Admission of Successor General Partner
+
+A successor to all of the General Partner Interest pursuant to Section 11.2
+hereof who is proposed to be admitted as a successor General Partner shall be
+admitted to the Partnership as the General Partner, effective immediately prior
+to such transfer.  Any such transferee shall carry on the business of the
+Partnership without dissolution.  In each case, the admission shall be subject
+to the successor General Partner executing and delivering to the Partnership an
+acceptance of all of the terms and conditions of this Agreement and such other
+documents or instruments as may be required to effect the admission.  In the
+case of such admission on any day other than the first day of a Partnership
+Year, all items attributable to the General Partner Interest for such
+Partnership Year shall be allocated between the transferring General Partner and
+such successor as provided in Section 11.6(D) hereof.
+
+Section 12.2.  Admission of Additional Limited Partners
+
+A.A Person who makes a Capital Contribution to the Partnership in accordance
+with this Agreement shall be admitted to the Partnership as an Additional
+Limited Partner only upon furnishing to the General Partner (i) evidence of
+acceptance in form satisfactory to the General Partner of all of the terms and
+conditions of this Agreement, including, without limitation, the power of
+attorney granted in Section 2.4 hereof and (ii) such other documents or
+instruments as may be required in the discretion of the General Partner in order
+to effect such Person’s admission as an Additional Limited Partner, in each
+case, after approval of the Board of Directors.
+
+B.Notwithstanding anything to the contrary in this Section 12.2, no Person shall
+be admitted as an Additional Limited Partner without the approval of the Board
+of Directors.  The admission of any Person as an Additional Limited Partner
+shall become effective on the date upon which the name of such Person is
+recorded on the books and records of the Partnership, following the approval of
+the Board of Directors of such admission.
+
+C.If any Additional Limited Partner is admitted to the Partnership on any day
+other than the first day of a Partnership Year, then Net Income, Net Losses,
+each item thereof and all other items allocable among Partners and Assignees for
+such Partnership Year shall be allocated among such Additional Limited Partner
+and all other Partners and Assignees by taking into account their varying
+interests during the Partnership Year in accordance with Section 706(d) of the
+Code, using the interim closing of the books method.  All distributions of
+Available Cash with respect to which the Partnership Record Date is before the
+date of such admission shall be made solely to Partners and Assignees, other
+than such Additional Limited Partner, and all distributions of Available Cash
+thereafter shall be made to all of the Partners and Assignees, including such
+Additional Limited Partner.
+
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+
+Section 12.3.  Amendment of Agreement and Certificate of Limited Partnership
+
+For the admission to the Partnership of any Partner, the General Partner shall
+take all steps necessary and appropriate under the Act to amend the records of
+the Partnership and, if necessary, to prepare as soon as practical an amendment
+of this Agreement (including an amendment of Exhibit A) and, if required by law,
+shall prepare and file an amendment to the Certificate and may for this purpose
+exercise the power of attorney granted pursuant to Section 2.4 hereof.
+
+ARTICLE 13.
+
+DISSOLUTION, LIQUIDATION AND TERMINATION
+
+Section 13.1.  Dissolution
+
+The Partnership shall not be dissolved by the admission of Substituted Limited
+Partners or Additional Limited Partners or by the admission of a successor
+General Partner in accordance with the terms of this Agreement.  Upon the
+withdrawal of the General Partner, any successor General Partner shall continue
+the business of the Partnership without dissolution.  The Partnership shall
+dissolve, and its affairs shall be wound up, only upon the first to occur of any
+of the following (“Liquidating Events”):
+
+A.an election to dissolve the Partnership made by the General Partner following
+the direction and approval of the Board of Directors with the consent of
+Partners holding a majority of the Percentage Interests of the Limited Partners;
+
+B.entry of a decree of judicial dissolution of the Partnership pursuant to the
+provisions of the Act;
+
+C.at any time that there are no limited partners of the Partnership unless the
+business of the Partnership is continued in accordance with the Act;
+
+D.the sale of all or substantially all of the assets and properties of the
+Partnership; or
+
+E.any other event sufficient under the Act to cause the dissolution of the
+Partnership.
+
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+
+Section 13.2.  Winding Up
+
+A.Upon the occurrence of a Liquidating Event, the Partnership shall continue
+solely for the purposes of winding up its affairs in an orderly manner,
+liquidating its assets, and satisfying the claims of its creditors and
+Partners.  No Partner shall take any action that is inconsistent with, or not
+necessary to or appropriate for, the winding up of the Partnership’s business
+and affairs.  The General Partner, or, in the event there is no remaining
+General Partner, any Person elected by a majority of the Percentage Interests of
+the Limited Partners (the General Partner or such other Person being referred to
+herein as the “Liquidator”), shall be responsible for overseeing the winding up
+and dissolution of the Partnership and shall take full account of the
+Partnership’s liabilities and property and the Partnership property shall be
+liquidated as promptly as is consistent with obtaining the fair value thereof,
+and the proceeds therefrom (which may, to the extent determined by the
+Liquidator and approved by the Board of Directors, include OP Units of the
+Operating Partnership) shall be applied and distributed in the following order:
+
+(1)First, in satisfaction of all of the Partnership’s Debts and liabilities to
+creditors other than the Partners (whether by payment or the making of
+reasonable provision for payment thereof);
+
+(2)Second, to the payment and discharge of all of the Partnership’s Debts and
+liabilities to the General Partner (whether by payment or the making of
+reasonable provision for payment thereof), including, but not limited to,
+amounts due as reimbursements under Section 7.4;
+
+(3)Third, to the payment and discharge of all of the Partnership’s Debts and
+liabilities to the other Partners; and
+
+(4)The balance, if any, to the Partners in accordance with their Capital
+Accounts, after giving effect to all contributions, distributions, and
+allocations for all periods.
+
+The General Partner shall not receive any additional compensation for any
+services performed pursuant to this Article 13.
+
+B.Notwithstanding the provisions of Section 13.2(A) hereof which require
+liquidation of the assets of the Partnership, but subject to the order of
+priorities set forth therein, if prior to or upon dissolution of the Partnership
+the Liquidator, following the direction and approval of the Board of Directors,
+determines that an immediate sale of part or all of the Partnership’s assets
+would be impractical or would cause undue loss to the Partners, the Liquidator
+may defer for a reasonable time the liquidation of any assets except those
+necessary to satisfy liabilities of the Partnership (including to those Partners
+as creditors) and/or distribute to the Partners, in lieu of cash, as tenants in
+common and in accordance with the provisions of Section 13.2(A) hereof,
+undivided interests in such Partnership assets as the Liquidator deems not
+suitable for liquidation.  Any such distributions in kind shall be made only if,
+in the good faith judgment of the Liquidator, following the direction and
+approval of the Board of Directors, such distributions in kind are in the best
+interest of the Partners, and shall be subject to such conditions relating to
+the disposition and management of such properties as the Liquidator deems
+reasonable and equitable and to any agreements governing the operation of such
+properties at such time.  The Liquidator shall determine the fair market value
+of any property distributed in kind using such reasonable method of valuation as
+it may adopt.
+
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+
+C.In the discretion of the Liquidator, following the direction and approval of
+the Board of Directors, a pro rata portion of the distributions that would
+otherwise be made to the Partners pursuant to this Article 13 may be:
+
+(1)distributed to a trust established for the benefit of the General Partner and
+Limited Partners for the purposes of liquidating Partnership assets, collecting
+amounts owed to the Partnership, and paying any contingent or unforeseen
+liabilities or obligations of the Partnership or the General Partner arising out
+of or in connection with the Partnership. The assets of any such trust shall be
+distributed to the General Partner and Limited Partners from time to time, in
+the reasonable discretion of the Liquidator, following the direction and
+approval of the Board of Directors, in the same proportions as the amount
+distributed to such trust by the Partnership would otherwise have been
+distributed to the General Partner and Limited Partners pursuant to this
+Agreement; or
+
+(2)withheld or escrowed to provide a reasonable reserve for Partnership
+liabilities (contingent or otherwise) and to reflect the unrealized portion of
+any installment obligations owed to the Partnership; provided, that such
+withheld or escrowed amounts shall be distributed to the General Partner and
+Limited Partners in the manner and order of priority set forth in Section
+13.2(A) as soon as practicable.
+
+Section 13.3. Deficit Capital Account Restoration Obligation
+
+In the event the Partnership or the General Partner’s interest therein
+(including its interest if any as a Limited Partner) is “liquidated” within the
+meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made
+pursuant to this Article 13 to the General Partner and Limited Partners who have
+positive Capital Accounts in compliance with Regulations Section
+1.704-1(b)(2)(ii)(b)(3).  If any Partner has a deficit balance in its Capital
+Account (after giving effect to all contributions, distributions and allocations
+for all taxable years, including the year during which such liquidation occurs),
+such Partner, if such Partner is a Limited Partner, shall have no obligation to
+make any contribution to the capital of the Partnership with respect to such
+deficit, and such deficit shall not be considered a Debt owed to the Partnership
+or to any other Person for any purpose whatsoever, except to the extent
+otherwise expressly agreed to by such Limited Partner and the Partnership;
+provided, however, that such Partner, if such Partner is the General Partner,
+shall contribute to the capital of the Partnership the amount necessary to
+restore such deficit balance to zero in compliance with Regulations Section
+1.704-1(b)(2)(ii)(b)(3).
+
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+
+Section 13.4.  Deemed Contribution and Distribution
+
+Notwithstanding any other provision of this Article 13, in the event the
+Partnership is “liquidated” within the meaning of Regulations Section
+1.704-1(b)(2)(ii)(g), but no Liquidating Event has occurred, the Partnership’s
+property shall not be liquidated, the Partnership’s liabilities shall not be
+paid or discharged, and the Partnership’s affairs shall not be wound
+up.  Instead, for federal income tax purposes and for purposes of maintaining
+Capital Accounts pursuant to Exhibit B hereto, the Partnership shall be deemed
+to have contributed all Partnership property and liabilities to a new limited
+partnership in exchange for an interest in such new limited partnership and,
+immediately thereafter, the Partnership will be deemed to liquidate by
+distributing interests in the new limited partnership to the Partners.
+
+Section 13.5.  Rights of Limited Partners
+
+Except as otherwise provided in this Agreement, each Limited Partner shall look
+solely to the assets of the Partnership for the return of its Capital
+Contributions and shall have no right or power to demand or receive property
+other than cash from the Partnership.  Except as otherwise provided in this
+Agreement, no Limited Partner shall have priority over any other Partner as to
+the return of its Capital Contributions, distributions, or allocations.
+
+Section 13.6.  Notice of Dissolution
+
+In the event a Liquidating Event occurs, or an event occurs that would result in
+a dissolution of the Partnership, the General Partner shall, within 30 days
+thereafter, provide written notice thereof to each of the Partners.
+
+Section 13.7.  Termination of Partnership and Cancellation of Certificate of
+Limited Partnership
+
+Upon the completion of the winding up of the Partnership and liquidation of its
+assets, as provided in Section 13.2 hereof, the Partnership shall be terminated
+by filing a certificate of cancellation with the Secretary of State of the State
+of Delaware, canceling all qualifications of the Partnership as a foreign
+limited partnership in jurisdictions other than the State of Delaware and taking
+such other actions as may be necessary to terminate the Partnership.
+
+Section 13.8.  Reasonable Time for Winding Up
+
+A reasonable time shall be allowed for the orderly winding-up of the business
+and affairs of the Partnership and the liquidation of its assets pursuant to
+Section 13.2 hereof, in order to minimize any losses otherwise attendant upon
+such winding up, and the provisions of this Agreement shall remain in effect
+among the Partners during the period of liquidation.
+
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+
+Section 13.9.  Waiver of Partition
+
+No Partner nor any successor-in-interest to a Partner shall have the right while
+this Agreement remains in effect to have any property of the Partnership
+partitioned, or to file a complaint or institute any proceeding at law or in
+equity to have such property of the Partnership partitioned, and each Partner,
+on behalf of itself and its successors and assigns hereby waives any such right.
+It is the intention of the Partners that the rights of the parties hereto and
+their successors-in-interest to Partnership property, as among themselves, shall
+be governed by the terms of this Agreement, and that the rights of the Partners
+and their respective successors-in-interest shall be subject to the limitations
+and restrictions as set forth in this Agreement.
+
+ARTICLE 14.
+
+AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
+
+Section 14.1.  Amendment of Partnership Agreement
+
+A.A proposed amendment shall be adopted and be effective as an amendment hereto
+if it is approved by the General Partner following the direction and approval of
+the Board of Directors.
+
+B.Notwithstanding Section 14.1(A) hereof, this Agreement shall not be amended
+without the consent of each Partner materially adversely affected if such
+amendment would (i) convert a Limited Partner Interest in the Partnership into a
+General Partner Interest; (ii) modify the limited liability of a Limited Partner
+in a manner materially adverse to such Limited Partner; (iii) alter rights of
+such Partner to receive distributions pursuant to Article 5 or Article 13, or
+the allocations specified in Article 6 (except as permitted pursuant to Section
+4.2 hereof) in a manner materially adverse to such Partner; or (vi) amend this
+Section 14.1(B); provided, however, that the consent of each Partner materially
+adversely affected shall not be required for any amendment or action that
+affects all Partners holding the same class or series of Partnership Units on a
+uniform or pro rata basis.  Any amendment consented to by any Partner shall be
+effective as to that Partner, notwithstanding the absence of such consent by any
+other Partner.
+
+Section 14.2.  Meetings of the Partners
+
+A.Meetings of the Partners may be called by the General Partner and shall be
+called upon the receipt by the General Partner of a written request either by
+the Limited Partners holding 20% or more of the Partnership Interests or by the
+Board of Directors.  The request shall state the nature of the business to be
+transacted.  Notice of any such meeting shall be given to all Partners not less
+than seven days nor more than 30 days prior to the date of such
+meeting.  Partners may vote in person or by proxy at such meeting.  Except as
+otherwise expressly provided in this Agreement, the consent of holders of a
+majority of the Percentage Interests held by Limited Partners shall control.
+
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+
+B.Any action required or permitted to be taken at a meeting of the Partners may
+be taken without a meeting if a written consent setting forth the action so
+taken is signed by a majority of the Percentage Interests of the Partners (or
+such other percentage as is expressly required by this Agreement).  Such consent
+may be in one instrument or in several instruments, and shall have the same
+force and effect as a vote of a majority of the Percentage Interests of the
+Partners (or such other percentage as is expressly required by this
+Agreement).  Such consent shall be filed with the General Partner.  An action so
+taken shall be deemed to have been taken at a meeting held on the effective date
+so certified.
+
+C.Each Limited Partner may authorize any Person or Persons to act for him by
+proxy on all matters in which a Limited Partner is entitled to participate,
+including waiving notice of any meeting, or voting or participating at a
+meeting.  Every proxy must be signed by the Limited Partner or his or its
+attorney-in-fact.  No proxy shall be valid after the expiration of 11 months
+from the date thereof unless otherwise provided in the proxy.  Every proxy shall
+be revocable at the pleasure of the Limited Partner executing it, such
+revocation to be effective upon the Partnership’s receipt of written notice of
+such revocation from the Limited Partner executing such proxy.
+
+D.Each meeting of the Partners shall be conducted by the General Partner or such
+other Person as the General Partner may appoint pursuant to such rules for the
+conduct of the meeting as the General Partner or such other Person deems
+appropriate.  Without limitation, meetings of Partners may be conducted in the
+same manner as meetings of the shareholders of the Company and may be held at
+the same time, and as part of, meetings of the shareholders of the Company.
+
+ARTICLE 15.
+
+GENERAL PROVISIONS
+
+Section 15.1.  Addresses and Notice
+
+Any notice, demand, request or report required or permitted to be given or made
+to a Partner or Assignee under this Agreement shall be in writing and shall be
+deemed given or made when delivered in person or when sent by first class United
+States mail or by other means of written communication to such Partner or
+Assignee at the address set forth in Exhibit A or such other address of which
+such Partner shall notify the General Partner in writing.
+
+Section 15.2.  Titles and Captions
+
+All article or section titles or captions in this Agreement are for convenience
+only.  They shall not be deemed part of this Agreement and in no way define,
+limit, extend or describe the scope or intent of any provisions hereof.  Except
+as specifically provided otherwise, references to “Articles” and “Sections” are
+to Articles and Sections of this Agreement.
+
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+
+Section 15.3.  Pronouns and Plurals
+
+Whenever the context may require, any pronoun used in this Agreement shall
+include the corresponding masculine, feminine or neutral forms, and the singular
+form of nouns, pronouns and verbs shall include the plural and vice versa.
+
+Section 15.4.  Further Action
+
+The parties shall execute and deliver all documents, provide all information and
+take or refrain from taking action as may be necessary or appropriate to achieve
+the purposes of this Agreement.
+
+Section 15.5.  Binding Effect
+
+This Agreement shall be binding upon and inure to the benefit of the parties
+hereto and their heirs, executors, administrators, successors, legal
+representatives and permitted assigns.
+
+Section 15.6.  Creditors
+
+The provisions of this Agreement are solely for the purpose of defining the
+interests of the Partners, inter se; and no other Person (i.e., a party who is
+not a signatory hereto or a permitted successor to such signatory hereto) shall
+have any right, power, title or interest by way of subrogation or otherwise, in
+and to the rights, powers, title and provisions of this Agreement; provided,
+that Indemnitees are intended third-party beneficiaries of Section 7.7. No
+creditor or other third party having dealings with the Partnership shall have
+the right to enforce the right or obligation of any Partner to make Capital
+Contributions or loans to the Partnership or to pursue any other right or remedy
+hereunder or at law or in equity. None of the rights or obligations of the
+Partners herein set forth to make Capital Contributions or loans to the
+Partnership shall be deemed an asset of the Partnership for any purpose by any
+creditor or other third party, nor may any such rights or obligations be sold,
+transferred or assigned by the Partnership or pledged or encumbered by the
+Partnership to secure any Debt or other obligation of the Partnership or any of
+the Partners.
+
+Section 15.7.  Waiver
+
+No failure by any party to insist upon the strict performance of any covenant,
+duty, agreement or condition of this Agreement or to exercise any right or
+remedy consequent upon a breach thereof shall constitute a waiver of any such
+breach or any other covenant, duty, agreement or condition.
+
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+
+Section 15.8.  Counterparts
+
+This Agreement may be executed in counterparts, all of which together shall
+constitute one agreement binding on all of the parties hereto, notwithstanding
+that all such parties are not signatories to the original or the same
+counterpart.  Each party shall become bound by this Agreement immediately upon
+affixing his or its signature hereto.
+
+Section 15.9.  Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial
+
+This Agreement shall be construed and enforced in accordance with and governed
+by the laws of the State of Delaware, without regard to the principles of
+conflict of laws. In the event of a conflict between any provision of this
+Agreement and any non-mandatory provision of the Act, the provisions of this
+Agreement shall control and take precedence.
+
+Section 15.10.  Invalidity of Provisions
+
+A.If any provision of this Agreement is or becomes invalid, illegal or
+unenforceable in any respect, the validity, legality and enforceability of the
+remaining provisions contained herein shall not be affected thereby.
+
+B.Each Partner and Assignee hereby (i) submits to the exclusive jurisdiction of
+any state or federal court sitting in the State of Delaware (collectively, the
+“Delaware Courts”), with respect to any dispute arising out of this Agreement or
+any transaction contemplated hereby to the extent such courts would have subject
+matter jurisdiction with respect to such dispute, (ii) to the fullest extent
+permitted by law, irrevocably waives, and agrees not to assert by way of motion,
+defense, or otherwise, in any such action, any claim that it is not subject
+personally to the jurisdiction of any of the Delaware Courts, that its property
+is exempt or immune from attachment or execution, that the action is brought in
+an inconvenient forum, or that the venue of the action is improper, (iii) to the
+fullest extent permitted by law, agrees that notice or the service of process in
+any action, suit or proceeding arising out of or relating to this Agreement or
+the transactions contemplated hereby shall be properly served or delivered if
+delivered to such Partner or Assignee at such Partner’s or Assignee’s last known
+address as set forth in the Partnership’s books and records, and (iv) to the
+fullest extent permitted by law, irrevocably waives any and all right to trial
+by jury in any legal proceeding arising out of or related to this Agreement or
+the transactions contemplated hereby.
+
+Section 15.11.  Entire Agreement
+
+This Agreement contains the entire understanding and agreement among the
+Partners with respect to the subject matter hereof and supersedes the Prior
+Agreement and any other prior written or oral understandings or agreements among
+them with respect thereto.
+
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+
+Section 15.12.  Legal Counsel Relationships
+
+The Partners acknowledge and agree that Winston & Strawn LLP has only
+represented the Company in connection with this Agreement and the other
+transactions related hereto (the “Transactions”). Each Limited Partner is
+relying solely on his or its own tax and legal advisors, and not Winston &
+Strawn LLP, with respect to the tax and other legal aspects of his, her or its
+investment in the Partnership. Further, except for Winston & Strawn LLP’s
+representation of the Company with respect to the Transactions, or as may
+otherwise expressly be agreed in writing by Winston & Strawn LLP, in no event
+shall an attorney-client relationship exist between Winston & Strawn LLP on the
+one hand and any other Limited Partner and/or their Affiliates, on the other
+hand. The Limited Partners further agree and consent that Winston & Strawn LLP
+shall be permitted to render legal advice and to provide legal services to any
+Limited Partner or the Partnership from time to time, and each Limited Partner
+covenants and agrees that such representation of a Limited Partner or the
+Partnership by such firm from time to time shall not disqualify such firm from
+providing legal advice and legal services to their respective client Limited
+Partners or Affiliates in matters related or unrelated to this Agreement.
+
+ 
+
+ 
+
+55
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
+date first written above.
+
+GENERAL PARTNER:
+
+ 
+
+NexPoint Real Estate Finance
+
+Operating Partnership, L.P.
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+/s/ Brian Mitts
+
+ 
+
+ 
+
+Name:
+
+ 
+
+Brian Mitts
+
+ 
+
+ 
+
+Title:
+
+ 
+
+Chief Financial Officer, Executive
+
+ 
+
+ 
+
+ 
+
+ 
+
+VP- Finance, Secretary and Treasurer
+
+ 
+
+ 
+
+[Signature Page to Amended and Restated Limited Partnership Agreement of
+NREF OP I, L.P.]
+
+
+
+--------------------------------------------------------------------------------
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
+date first written above.
+
+ 
+
+LIMITED PARTNERS
+
+ 
+
+Highland Global Allocation Fund
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+/s/ Dustin Norris
+
+ 
+
+ 
+
+Name:
+
+ 
+
+Dustin Norris
+
+ 
+
+ 
+
+Title:
+
+ 
+
+Executive VP
+
+ 
+
+NexPoint Real Estate Strategies Fund
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+/s/ Brian Mitts
+
+ 
+
+ 
+
+Name:
+
+ 
+
+Brian Mitts
+
+ 
+
+ 
+
+Title:
+
+ 
+
+Chief Financial Officer, Executive VP, PFO, PAO
+
+ 
+
+NexPoint Strategic Opportunities Fund
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+/s/ Dustin Norris
+
+ 
+
+ 
+
+Name:
+
+ 
+
+Dustin Norris
+
+ 
+
+ 
+
+Title:
+
+ 
+
+Executive VP
+
+ 
+
+SFR WLIF, LLC, Series I
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+SFR WLIF Manager, LLC, its manager
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+/s/ Dana Sprong
+
+ 
+
+ 
+
+Name:
+
+ 
+
+Dana Sprong
+
+ 
+
+ 
+
+Title:
+
+ 
+
+Sole Member
+
+ 
+
+ 
+
+[Signature Page to Amended and Restated Limited Partnership Agreement of
+NREF OP I, L.P.]
+
+
+
+--------------------------------------------------------------------------------
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
+date first written above.
+
+ 
+
+PARTIES TO PRIOR AGREEMENT
+
+ 
+
+ 
+
+INITIAL GENERAL PARTNER:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+/s/ Brian Mitts
+
+Name:
+
+ 
+
+Brian Mitts
+
+ 
+
+INITIAL LIMITED PARTNER:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+/s/ Matthew McGraner
+
+Name:
+
+ 
+
+Matthew McGraner
+
+ 
+
+ 
+
+ 
+
+ 
+
+[Signature Page to Amended and Restated Limited Partnership Agreement of
+NREF OP I, L.P.]
+
+
+
+--------------------------------------------------------------------------------
+
+ 
+
+EXHIBIT A
+
+PARTNERS’ CONTRIBUTIONS AND PARTNERSHIP INTERESTS+
+
+(As of February 11, 2020)
+
+Name and Address of Partner
+
+Cash Contribution
+
+Agreed Value of Contributed Property
+
+Total Contribution
+
+Common Units
+
+LTIP
+
+Units
+
+Percentage Interest
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+General Partner
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+NexPoint Real Estate Finance Operating Partnership, L.P.
+
+N/A
+
+N/A
+
+N/A
+
+N/A
+
+N/A
+
+0.0%
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+Limited Partners
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+NexPoint Real Estate Finance Operating Partnership, L.P.
+
+ 
+
+Highland Global Allocation Fund
+
+ 
+
+24,117,647.49
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+N/A
+
+N/A
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+2,480,920.45
+
+24,117,647.49
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+2,480,920.45
+
+1,269,349.87
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+124,046.02
+
+N/A
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+N/A
+
+26.41%
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+2.58%
+
+NexPoint Real Estate Strategies Fund
+
+ 
+
+ 
+
+NexPoint Strategic Opportunities Fund
+
+ 
+
+ 
+
+ 
+
+SFR WLIF, Series I
+
+ 
+
+N/A
+
+ 
+
+ 
+
+ 
+
+ 
+
+N/A
+
+ 
+
+ 
+
+ 
+
+ 
+
+N/A
+
+246,838.54
+
+ 
+
+ 
+
+ 
+
+ 
+
+7,944,794.39
+
+ 
+
+ 
+
+ 
+
+ 
+
+60,076,687.52
+
+246,838.54
+
+ 
+
+��
+
+ 
+
+ 
+
+7,944,794.39
+
+ 
+
+ 
+
+ 
+
+ 
+
+60,076,687.52
+
+12,341.93
+
+ 
+
+ 
+
+ 
+
+ 
+
+397,239.72
+
+ 
+
+ 
+
+ 
+
+ 
+
+3,000,834.38
+
+N/A
+
+ 
+
+ 
+
+ 
+
+ 
+
+N/A
+
+ 
+
+ 
+
+ 
+
+ 
+
+N/A
+
+0.26%
+
+ 
+
+ 
+
+ 
+
+ 
+
+8.26%
+
+ 
+
+ 
+
+ 
+
+ 
+
+62.49%
+
+ 
+
++ Subject to change as a result of subsequent contributions by the Company
+
+ 
+
+A-1
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+EXHIBIT B
+
+CAPITAL ACCOUNT MAINTENANCE
+
+1.
+
+Capital Accounts of the Partners
+
+A.The Partnership shall maintain for each Partner a separate Capital Account in
+accordance with the rules of Regulations Section 1.704-l(b)(2)(iv).  Such
+Capital Account shall be increased by (i) the amount of all Capital
+Contributions and any other deemed contributions made by such Partner to the
+Partnership pursuant to the Agreement; and (ii) all items of Partnership income
+and gain (including income and gain exempt from tax) computed in accordance with
+Section 1.B hereof and allocated to such Partner pursuant to Section 6.1(A) of
+the Agreement and Exhibit C of the Agreement, and decreased by (x) the amount of
+cash or Agreed Value of all actual and deemed distributions of cash or property
+made to such Partner pursuant to the Agreement, and (y) all items of Partnership
+deduction and loss computed in accordance with Section 1.B hereof and allocated
+to such Partner pursuant to Section 6.1.B of the Agreement and Exhibit C hereof.
+
+B.For purposes of computing the amount of any item of income, gain, deduction or
+loss (including “Net Income” or “Net Loss”) to be reflected in the Partners’
+Capital Accounts, unless otherwise specified in the Agreement, the
+determination, recognition and classification of any such item shall be the same
+as its determination, recognition and classification for federal income tax
+purposes determined in accordance with Section 703(a) of the Code (for this
+purpose all items of income, gain, loss or deduction required to be stated
+separately pursuant to Section 703(a)(1) of the Code shall be included in
+taxable income or loss), with the following adjustments:
+
+(1)Except as otherwise provided in Regulations Section 1.704-1(b)(2)(iv)(m), the
+computation of all items of income, gain, loss and deduction shall be made
+without regard to any election under Section 754 of the Code which may be made
+by the Partnership; provided, that the amounts of any adjustments to the
+adjusted bases of the assets of the Partnership made pursuant to Section 734 of
+the Code as a result of the distribution of property by the Partnership to a
+Partner (to the extent that such adjustments have not previously been reflected
+in the Partners’ Capital Accounts) shall be reflected in the Capital Accounts of
+the Partners in the manner and subject to the limitations prescribed in
+Regulations Section 1.704-1(b)(2)(iv)(m)(4).
+
+(2)The computation of all items of income, gain, and deduction shall be made
+without regard to the fact that items described in Sections 705(a)(1)(B) or
+705(a)(2)(B) of the Code are not includable in gross income or are neither
+currently deductible nor capitalized for federal income tax purposes.
+
+B-1
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+(3)Any income, gain or loss attributable to the taxable disposition of any
+Partnership property shall be determined as if the adjusted basis of such
+property as of such date of disposition were equal in amount to the
+Partnership’s Carrying Value with respect to such property as of such date.
+
+(4)In lieu of the depreciation, amortization, and other cost recovery deductions
+taken into account in computing such taxable income or loss, there shall be
+taken into account Depreciation for such fiscal year.
+
+(5)In the event the Carrying Value of any Partnership asset is adjusted pursuant
+to Section 1.D hereof, the amount of any such adjustment shall be taken into
+account as gain or loss from the disposition of such asset.
+
+(6)Any income of the Partnership that is exempt from federal income tax and not
+otherwise taken into account in computing Net Income or Net Loss pursuant to
+this definition shall be added to such taxable income or loss.
+
+(7)Notwithstanding any other provision of this Section 1.B, any items that are
+specially allocated pursuant to Exhibit C of the Agreement shall not be taken
+into account for purposes of computing Net Income or Net Loss.
+
+The amounts of the items of Partnership income, gain, loss or deduction
+available to be specially allocated pursuant to Exhibit C of the Agreement shall
+be determined by applying rules analogous to those set forth in Sections 1.B(1)
+through 1.B(5) above.
+
+C.Generally, a transferee (including an Assignee) of a Partnership Unit shall
+succeed to a pro rata portion of the Capital Account of the transferor.
+
+D.(1) Consistent with the provisions of Regulations Section
+1.704-1(b)(2)(iv)(f), and as provided in Section 1.D(2), the Carrying Value of
+all Partnership assets shall be adjusted upward or downward to reflect any
+Unrealized Gain or Unrealized Loss attributable to such Partnership property, as
+of the times of the adjustments provided in Section 1.D(2) hereof, as if such
+Unrealized Gain or Unrealized Loss had been recognized on an actual sale of each
+such property and allocated pursuant to Section 6.1 of the Agreement.
+
+(2)Such adjustments shall be made as of the following times: (a) immediately
+prior to the acquisition of an additional interest in the Partnership by any new
+or existing Partner in exchange for more than a de minimis Capital Contribution;
+(b) immediately prior to the distribution by the Partnership to a Partner of
+more than a de minimis amount of property as consideration for an interest in
+the Partnership; (c) in connection with the grant of an interest in the
+Partnership (other than a de minimis interest), as consideration for the
+provision of services to or for the benefit of the Partnership by an existing
+Partner acting in a partner capacity or by a new partner acting in a partner
+capacity or in anticipation of being a partner; and (d) immediately prior to the
+liquidation of the Partnership within the meaning of Regulations Section
+1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses
+(a), (b) and (c) above shall be made only if the General Partner determines that
+such adjustments are necessary or appropriate to reflect the relative economic
+interests of the Partners in the Partnership.
+
+B-2
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+(3)In accordance with Regulations Section 1.704-1(b)(2)(iv)(e), the Carrying
+Value of Partnership assets distributed in kind shall be adjusted upward or
+downward to reflect any Unrealized Gain or Unrealized Loss attributable to such
+Partnership property, as of the time any such asset is distributed.
+
+(4)The Carrying Value of Partnership assets shall be increased (or decreased) to
+reflect any adjustments to the adjusted basis of such assets pursuant to Section
+734(b) or Section 743(b) of the Code, but only to the extent that such
+adjustments are taken into account in determining Capital Accounts pursuant to
+Regulations Section 1.704-1(b)(2)(iv)(m) and Section 1.B(1) hereof or Section
+1.F of Exhibit C of the Agreement; provided, however, that Carrying Values shall
+not be adjusted pursuant to this Section 1.D(4) to the extent that an adjustment
+pursuant to Section 1.D(2) hereof is required in connection with a transaction
+that would otherwise result in an adjustment pursuant to this Section 1.D(4).
+
+(5)In determining Unrealized Gain or Unrealized Loss for purposes of this
+Exhibit B, the aggregate cash amount and fair market value of all Partnership
+assets (including cash or cash equivalents) shall be determined by the General
+Partner using such reasonable method of valuation as it may adopt, or in the
+case of a liquidating distribution pursuant to Article 13 of the Agreement,
+shall be determined and allocated by the Liquidator using such reasonable method
+of valuation as it may adopt.  The General Partner, or the Liquidator, as the
+case may be, shall allocate such aggregate value among the assets of the
+Partnership (in such manner as it determines following the direction and
+approval of the Board of Directors to arrive at a fair market value for
+individual properties).
+
+If the Carrying Value of an asset has been determined or adjusted pursuant to
+Section 1.B(2) or Section 1.B(4) of this Exhibit B, such Carrying Value shall
+thereafter be adjusted by the Depreciation taken into account with respect to
+such asset, for purposes of computing Net Income and Net Loss.
+
+B-3
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+E.The provisions of the Agreement (including this Exhibit B and other Exhibits
+to the Agreement) relating to the maintenance of Capital Accounts are intended
+to comply with Regulations Section 1.704-l(b), and shall be interpreted and
+applied in a manner consistent with such Regulations.  In the event the General
+Partner shall determine that it is prudent to modify (i) the manner in which the
+Capital Accounts, or any debits or credits thereto (including, without
+limitation, debits or credits relating to liabilities which are secured by
+contributed or distributed property or which are assumed by the Partnership, the
+General Partner, or the Limited Partners) are computed; or (ii) the manner in
+which items are allocated among the Partners for federal income tax purposes, in
+order to comply with such Regulations or to comply with Section 704(c) of the
+Code, the General Partner may make such modification without regard to Article
+14 of the Agreement; provided, that it is not likely to have a material effect
+on the amounts distributable to any Person pursuant to Article 13 of the
+Agreement upon the dissolution of the Partnership.  The General Partner also
+shall (i) make any adjustments that are necessary or appropriate to maintain
+equality between the Capital Accounts of the Partners and the amount of
+Partnership capital reflected on the Partnership’s balance sheet, as computed
+for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q);
+and (ii) make any appropriate modifications in the event unanticipated events
+might otherwise cause the Agreement not to comply with Regulations Section
+1.704-1(b).  In addition, the General Partner may adopt and employ such methods
+and procedures for (i) the maintenance of book and tax capital accounts; (ii)
+the determination and allocation of adjustments under Sections 704(c), 734 and
+743 of the Code; (iii) the determination of Net Income, Net Loss, taxable
+income, taxable loss and items thereof under the Agreement and pursuant to the
+Code; (iv) the adoption of reasonable conventions and methods for the valuation
+of assets and the determination of tax basis; (v) the allocation of asset value
+and tax basis; and (vi) conventions for the determination of cost recovery,
+depreciation and amortization deductions, as it determines in its sole
+discretion are necessary or appropriate to execute the provisions of the
+Agreement, to comply with federal and state tax laws, and are in the best
+interest of the Partners.
+
+2.
+
+No Interest
+
+No interest shall be paid by the Partnership on Capital Contributions or on
+balances in Partners’ Capital Accounts.
+
+3.
+
+No Withdrawal
+
+No Partner shall be entitled to withdraw any part of his or its Capital
+Contribution or his or its Capital Account or to receive any distribution from
+the Partnership, except as provided in Articles 4, 5, 7 and 13 of the Agreement.
+
+B-4
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+4.
+
+Special Allocations in Connection with a Liquidating Event
+
+Partners intend that the allocation of Net Income, Net Loss and other items of
+income, gain, loss, deduction and credit required to be allocated to the Capital
+Accounts of the Partners pursuant to the Agreement will result in final Capital
+Account balances that will permit the amount each Partner is entitled to receive
+upon “liquidation” of the Partnership (within the meaning of Section
+1.704-1(b)(2)(ii)(g) of the Treasury Regulations) to equal the amount such
+Partner would have received if such amount was distributable pro rata in
+accordance with the Partners’ respective Percentage Interests. Accordingly,
+notwithstanding the provisions of Section 6.1(a) and Section 6.1(b) of the
+Agreement, in the taxable year of the event precipitating a Liquidating Event
+and thereafter, appropriate adjustments to allocations of Net Income and Net
+Losses (and items thereof) to the Partners shall be made to achieve such result
+to the maximum extent possible.
+
+ 
+
+ 
+
+B-5
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+EXHIBIT C
+
+SPECIAL ALLOCATION RULES; OTHER TAX MATTERS
+
+1.
+
+Special Allocation Rules
+
+Notwithstanding any other provision of the Agreement or this Exhibit C, the
+following special allocations shall be made:
+
+A.Minimum Gain Chargeback.  Notwithstanding the provisions of Section 6.1 of the
+Agreement or any other provisions of this Exhibit C, if there is a net decrease
+in Partnership Minimum Gain during any Partnership taxable year, then, subject
+to the exceptions set forth in Regulations Sections 1.704-2(f)(2)-(5), each
+Partner shall be specially allocated items of Partnership income and gain for
+such year (and, if necessary, subsequent years) in an amount equal to such
+Partner’s share of the net decrease in Partnership Minimum Gain, as determined
+under Regulations Section 1.704-2(g).  Allocations pursuant to the previous
+sentence shall be made in proportion to the respective amounts required to be
+allocated to each Partner pursuant thereto.  The items to be so allocated shall
+be determined in accordance with Regulations Section 1.704-2(f)(6).  This
+Section 1.A is intended to comply with the minimum gain chargeback requirements
+in Regulations Section 1.704-2(f) and shall be interpreted consistently
+therewith.  Solely for purposes of this Section 1.A, each Partner’s Adjusted
+Capital Account Deficit shall be determined prior to any other allocations
+pursuant to Section 6.1 of the Agreement with respect to such Partnership
+taxable year and without regard to any decrease of Partner Minimum Gain during
+such Partnership taxable year.
+
+B.Partner Minimum Gain Chargeback.  Notwithstanding any other provision of
+Section 6.1 of the Agreement or any other provisions of this Exhibit C (except
+Section 1.A hereof), if there is a net decrease in Partner Minimum Gain
+attributable to a Partner Nonrecourse Debt during any Partnership taxable year,
+then, subject to the exceptions referred to in Regulations Section
+1.704-2(i)(4), each Partner who has a share of the Partner Minimum Gain
+attributable to such Partner Nonrecourse Debt, determined in accordance with
+Regulations Section 1.704-2(i)(5), shall be specially allocated items of
+Partnership income and gain for such year (and, if necessary, subsequent years)
+in an amount equal to such Partner’s share of the net decrease in Partner
+Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
+accordance with Regulations Section 1.704-2(i)(5).  Allocations pursuant to the
+previous sentence shall be made in proportion to the respective amounts required
+to be allocated to each Partner pursuant thereto.  The items to be so allocated
+shall be determined in accordance with Regulations Section 1.704-2(i)(4).  This
+Section 1.B is intended to comply with the minimum gain chargeback requirement
+in such section of the Regulations and shall be interpreted consistently
+therewith.  Solely for purposes of this Section 1.B, each Partner’s Adjusted
+Capital Account Deficit shall be determined prior to any other allocations
+pursuant to Section 6.1 of the Agreement or this Exhibit with respect to such
+Partnership taxable year, other than allocations pursuant to Section 1.A hereof.
+
+C-1
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+C.Qualified Income Offset.  In the event any Partner unexpectedly receives any
+adjustments, allocations or distributions described in Regulations Sections
+1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6),
+and after giving effect to the allocations required under Sections 1.A and 1.B
+hereof such Partner has an Adjusted Capital Account Deficit, items of
+Partnership income and gain (consisting of a pro rata portion of each item of
+Partnership income, including gross income and gain for the Partnership taxable
+year) shall be specially allocated to such Partner in an amount and manner
+sufficient to eliminate, to the extent required by the Regulations, its Adjusted
+Capital Account Deficit created by such adjustments, allocations or
+distributions as quickly as possible; provided, that an allocation pursuant to
+this Section 1.C shall be made only if and to the extent that such Partner would
+have an Adjusted Capital Account Deficit after all other allocations provided
+for in Section 6.1 of the Agreement or any other provisions of this Exhibit C
+have been tentatively made as if this Section 1.C were not in this Agreement.
+This Section 1.C is intended to constitute a qualified income offset under
+Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
+therewith.
+
+D.Nonrecourse Deductions.  Nonrecourse Deductions for any Partnership taxable
+year shall be allocated to the Partners in accordance with their respective
+Percentage Interests.  If the General Partner determines in its good faith
+discretion that the Partnership’s Nonrecourse Deductions must be allocated in a
+different ratio to satisfy the safe harbor requirements of the Regulations
+promulgated under Section 704(b) of the Code, the General Partner is authorized,
+upon notice to the Limited Partners, to revise the prescribed ratio to the
+numerically closest ratio for such Partnership taxable year which would satisfy
+such requirements.
+
+E.Partner Nonrecourse Deductions.  Any Partner Nonrecourse Deductions for any
+Partnership taxable year shall be specially allocated to the Partner who bears
+the economic risk of loss with respect to the Partner Nonrecourse Debt to which
+such Partner Nonrecourse Deductions are attributable in accordance with
+Regulations Section 1.704-2(i).
+
+F.Code Section 754 Adjustments.  To the extent an adjustment to the adjusted tax
+basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code
+is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to be taken
+into account in determining Capital Accounts, the amount of such adjustment to
+the Capital Accounts shall be treated as an item of gain (if the adjustment
+increases the basis of the asset) or loss (if the adjustment decreases such
+basis), and such item of gain or loss shall be specially allocated to the
+Partners in a manner consistent with the manner in which their Capital Accounts
+are required to be adjusted pursuant to such section of the Regulations.
+
+C-2
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+G.Curative Allocations.  The allocations set forth in Section 1.A through 1.F of
+this Exhibit C (the “Regulatory Allocations”) are intended to comply with
+certain requirements of the Regulations under Section 704(b) of the Code.  The
+Regulatory Allocations may not be consistent with the manner in which the
+Partners intend to divide Partnership distributions.  Accordingly, the General
+Partner is hereby authorized to divide other allocations of income, gain,
+deduction and loss among the Partners so as to prevent the Regulatory
+Allocations from distorting the manner in which Partnership distributions will
+be divided among the Partners.  In general, the Partners anticipate that, if
+necessary, this will be accomplished by specially allocating other items of
+income, gain, loss and deduction among the Partners so that the net amount of
+the Regulatory Allocations and such special allocations to each person is
+zero.  However, the General Partner will have discretion to accomplish this
+result in any reasonable manner; provided, however, that no allocation pursuant
+to this Section 1.G shall cause the Partnership to fail to comply with the
+requirements of Regulations Sections 1.704-1(b)(2)(ii)(d), -2(e) or -2(i).
+
+H.Forfeiture Allocations
+
+(1)If any holder forfeits (or has repurchased at less than fair market value)
+all or a portion of such holder’s Partnership Units, the Partnership shall make
+forfeiture allocations to such holder in the manner and to the extent required
+by proposed Regulations Section 1.704-1(b)(4)(xii) (as such proposed Regulations
+may be amended or modified, including upon the issuance of temporary or final
+Treasury Regulations).
+
+2.
+
+Allocations for Tax Purposes
+
+A.Except as otherwise provided in this Section 2, for federal income tax
+purposes, each item of income, gain, loss and deduction shall be allocated among
+the Partners in the same manner as its correlative item of “book” income, gain,
+loss or deduction is allocated pursuant to Section 6.1 of the Agreement and
+Section 1 of this Exhibit C.
+
+B.In an attempt to eliminate Book-Tax Disparities attributable to a Contributed
+Property or Adjusted Property, items of income, gain, loss, and deduction shall
+be allocated for federal income tax purposes among the Partners as follows:
+
+(1)(a)In the case of a Contributed Property, such items attributable thereto
+shall be allocated among the Partners, consistent with the principles of Section
+704(c) of the Code and the Regulations thereunder, and with the procedures and
+methods described in Section 10.2 of the Agreement, to take into account the
+variation between the 704(c) Value of such property and its adjusted basis at
+the time of contribution; and
+
+ 
+
+(b)
+
+any item of Residual Gain or Residual Loss attributable to a Contributed
+Property shall be allocated among the Partners in the same manner as its
+correlative item of “book” gain or loss is allocated pursuant to Section 6.1 of
+the Agreement and Section 1 of this Exhibit C.
+
+C-3
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+(2)(a)In the case of an Adjusted Property, such items shall
+
+(1)first, be allocated among the Partners in a manner consistent with the
+principles of Section 704(c) of the Code and the Regulations thereunder to take
+into account the Unrealized Gain or Unrealized Loss attributable to such
+property and the allocations thereof pursuant to this Exhibit B; and
+
+(2)second, in the event such property was originally a Contributed Property, be
+allocated among the Partners in a manner consistent with Section 2.B(1) of this
+Exhibit C; and
+
+ 
+
+(b)
+
+any item of Residual Gain or Residual Loss attributable to an Adjusted Property
+shall be allocated among the Partners in the same manner as its correlative item
+of “book” gain or loss is allocated pursuant to Section 6.1 of the Agreement and
+Section 1 of this Exhibit C.
+
+C.To the extent that the Treasury Regulations promulgated pursuant to Section
+704(c) of the Code permit the Partnership to utilize alternative methods to
+eliminate the disparities between the Carrying Value of property and its
+adjusted basis, the General Partner shall have the authority to elect the method
+to be used by the Partnership and such election shall be binding on all
+Partners.
+
+3.
+
+No Withdrawal
+
+No Partner shall be entitled to withdraw any part of its Capital Contribution or
+its Capital Account or to receive any distribution from the Partnership, except
+as provided in Articles 4, 5, 8 and 13 of the Agreement.
+
+ 
+
+C-4
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+EXHIBIT D
+
+NOTICE OF REDEMPTION
+
+The undersigned Limited Partner hereby irrevocably requests NREF OP I, L.P., a
+Delaware limited partnership (the “Partnership”), to redeem
+                      Partnership Units in the Partnership in accordance with
+the terms of the Amended and Restated Limited Partnership Agreement of the
+Partnership and the Redemption Right referred to therein; and the undersigned
+Limited Partner irrevocably (i) surrenders such Partnership Units and all right,
+title and interest therein; and (ii) directs that the Cash Amount or OP Unit
+Amount (as determined by the Operating Partnership) deliverable upon exercise of
+the Redemption Right be delivered to the address specified below, and if OP
+Units are to be delivered, such OP Units be registered or placed in the name(s)
+and at the address(es) specified below.  The undersigned hereby represents,
+warrants, and certifies that the undersigned (a) has marketable and unencumbered
+title to such Partnership Units, free and clear of the rights or interests of
+any other person or entity; (b) has the full right, power, and authority to
+request such redemption and surrender such Partnership Units as provided herein;
+and (c) has obtained the consent or approval of all persons or entities, if any,
+having the right to consent or approve such redemption and surrender of
+Units.  The undersigned Limited Partner further agrees that, in the event that
+any state or local property tax is payable as a result of the transfer of its
+Partnership Units to the Partnership or the Operating Partnership, the
+undersigned Limited Partner shall assume and pay such transfer tax.
+
+Dated:                                                               
+
+Name of Limited Partner:
+
+ 
+
+ 
+
+ 
+
+ 
+
+Please Print
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+(Signature of Limited Partner)
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+(Street Address)
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+(City) (State) (Zip Code)
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+Signature Guaranteed by:
+
+If OP Units are to be issued, issue to:
+
+Name:                                                               
+
+Please insert social security or identifying
+number:                                                                  
+
+ 
+
+ 
+
+D-1
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+EXHIBIT E
+
+CONSTRUCTIVE OWNERSHIP DEFINITION
+
+The term “Constructively Owns” means ownership determined through the
+application of the constructive ownership rules of Section 318 of the Code, as
+modified by Section 856(d)(5) of the Code.  Generally, as of the date first set
+forth above, these rules provide the following:
+
+a.  an individual is considered as owning the Ownership Interest that is owned,
+actually or constructively, by or for his spouse, his children, his
+grandchildren, and his parents;
+
+b.  an Ownership Interest that is owned, actually or constructively, by or for a
+partnership, limited liability company or estate is considered as owned
+proportionately by its partners or beneficiaries;
+
+c.  an Ownership Interest that is owned, actually or constructively, by or for a
+trust is considered as owned by its beneficiaries in proportion to the actuarial
+interest of such beneficiaries (provided, however, that in the case of a
+“grantor trust” the Ownership Interest will be considered as owned by the
+grantors);
+
+d.  if ten (10) percent or more in value of the stock in a corporation is owned,
+actually or constructively, by or for any person, such person shall be
+considered as owning the Ownership Interest that is owned, actually or
+constructively, by or for such corporation in that proportion which the value of
+the stock which such person so owns bears to the value of all the stock in such
+corporation;
+
+e.  an Ownership Interest that is owned, actually or constructively, by or for a
+partner or member which actually or constructively owns a 25% or greater capital
+interest or profits interest in a partnership or limited liability company, or
+by or to or for a beneficiary of an estate or trust shall be considered as owned
+by the partnership, limited liability company, estate, or trust (or, in the case
+of a grantor trust, the grantors);
+
+f.  if ten (10) percent or more in value of the stock in a corporation is owned,
+actually or constructively, by or for any person, such corporation shall be
+considered as owning the Ownership Interest that is owned, actually or
+constructively, by or for such person;
+
+g.  if any person has an option to acquire an Ownership Interest (including an
+option to acquire an option or any one of a series of such options), such
+Ownership Interest shall be considered as owned by such person;
+
+E-1
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+h.  an Ownership Interest that is constructively owned by a person by reason of
+the application of the rules described in paragraphs (a) through (g) above
+shall, for purposes of applying paragraphs (a) through (g), be considered as
+actually owned by such person; provided, however, that (i) an Ownership Interest
+constructively owned by an individual by reason of paragraph (a) shall not be
+considered as owned by him for purposes of again applying paragraph (a) in order
+to make another person the constructive owner of such Ownership Interest, (ii)
+an Ownership Interest constructively owned by a partnership, estate, trust, or
+corporation by reason of the application of paragraphs (e) or (f) shall not be
+considered as owned by it for purposes of applying paragraphs (b), (c), or (d)
+in order to make another person the constructive owner of such Ownership
+Interest, (iii) if an Ownership Interest may be considered as owned by an
+individual under paragraph (a) or (g), it shall be considered as owned by him
+under paragraph (g), and (iv) for purposes of the above described rules, an S
+corporation shall be treated as a partnership and any shareholder of the S
+corporation shall be treated as a partner of such partnership except that this
+rule shall not apply for purposes of determining whether stock in the S
+corporation is constructively owned by any person.
+
+i.  For purposes of the above summary of the constructive ownership rules, the
+term “Ownership Interest” means the ownership of stock with respect to a
+corporation and, with respect to any other type of entity, the ownership of an
+interest in either its assets or net profits.
+
+ 
+
+E-2
+
+AmericasActive:14392849.4
+
+--------------------------------------------------------------------------------
+
+ 
+
+EXHIBIT F
+
+SCHEDULE OF PARTNERS’ OWNERSHIP
+WITH RESPECT TO TENANTS
+
+NONE
+
+ 
+
+ 
+
+AmericasActive:14392849.4
+Exhibit 10.2
+
+SALE AND SERVICING AGREEMENT
+
+among
+
+NISSAN AUTO RECEIVABLES 2020-A OWNER TRUST,
+
+as Issuer,
+
+NISSAN AUTO RECEIVABLES CORPORATION II,
+
+as Seller,
+
+NISSAN MOTOR ACCEPTANCE CORPORATION,
+
+as Servicer
+
+and
+
+U.S. BANK NATIONAL ASSOCIATION,
+
+as Indenture Trustee
+
+Dated as of April 29, 2020
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+ 
+
+          Page  
+
+ARTICLE I.         DEFINITIONS
+
+     1  
+
+SECTION 1.01
+
+   Definitions      1  
+
+SECTION 1.02
+
+   Usage of Terms      23  
+
+ARTICLE II.         CONVEYANCE OF RECEIVABLES
+
+     23  
+
+SECTION 2.01
+
+   Conveyance of Receivables      23  
+
+SECTION 2.02
+
+   Custody of Receivable Files      24  
+
+SECTION 2.03
+
+   Acceptance by Issuer      25  
+
+ARTICLE III.         THE RECEIVABLES
+
+     25  
+
+SECTION 3.01
+
+   Representations and Warranties of the Seller with Respect to the Receivables
+     25  
+
+SECTION 3.02
+
+   Repurchase upon Breach      25  
+
+SECTION 3.03
+
+   Duties of Servicer as Custodian      26  
+
+SECTION 3.04
+
+   Instructions; Authority To Act      27  
+
+SECTION 3.05
+
+   Custodian’s Indemnification      27  
+
+SECTION 3.06
+
+   Effective Period and Termination      27  
+
+ARTICLE IV.         ADMINISTRATION AND SERVICING OF RECEIVABLES
+
+     27  
+
+SECTION 4.01
+
+   Duties of Servicer      27  
+
+SECTION 4.02
+
+   Collection of Receivable Payments      29  
+
+SECTION 4.03
+
+   Realization upon Receivables      29  
+
+SECTION 4.04
+
+   Maintenance of Security Interests in Financed Vehicles      29  
+
+SECTION 4.05
+
+   Covenants of Servicer      30  
+
+SECTION 4.06
+
+   Purchase of Receivables upon Breach      30  
+
+SECTION 4.07
+
+   Servicing Fee and Expenses      30  
+
+SECTION 4.08
+
+   Servicer’s Certificate      31  
+
+SECTION 4.09
+
+   Communication among Noteholders      31  
+
+SECTION 4.10
+
+   Annual Statement as to Compliance; Notice of Default      31  
+
+SECTION 4.11
+
+   Annual Registered Public Accounting Firm Attestation      32  
+
+SECTION 4.12
+
+   Appointment of Subservicer      33  
+
+SECTION 4.13
+
+   Fidelity Bond      33  
+
+SECTION 4.14
+
+   Administrator Compensation      33  
+
+ 
+
+i   (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+(continued)
+
+ 
+
+          Page  
+
+ARTICLE V.         DISTRIBUTIONS; ACCOUNTS; STATEMENTS TO THE CERTIFICATEHOLDERS
+AND THE NOTEHOLDERS
+
+     33  
+
+SECTION 5.01
+
+   Establishment of Accounts      33  
+
+SECTION 5.02
+
+   Collections      36  
+
+SECTION 5.03
+
+   Application of Collections      37  
+
+SECTION 5.04
+
+   [Reserved]      37  
+
+SECTION 5.05
+
+   Additional Deposits      37  
+
+SECTION 5.06
+
+   Payments and Distributions      37  
+
+SECTION 5.07
+
+   Reserve Account      39  
+
+SECTION 5.08
+
+   Statements to Certificateholders and Noteholders      39  
+
+ARTICLE VI.         THE SELLER
+
+     41  
+
+SECTION 6.01
+
+   Representations of Seller      41  
+
+SECTION 6.02
+
+   Compliance with Organizational Documents      43  
+
+SECTION 6.03
+
+   Liability of Seller; Indemnities      43  
+
+SECTION 6.04
+
+   Merger or Consolidation of, or Assumption of the Obligations of, Seller     
+44  
+
+SECTION 6.05
+
+   Limitation on Liability of Seller and Others      45  
+
+SECTION 6.06
+
+   Seller May Own Certificates or Notes      45  
+
+SECTION 6.07
+
+   Sarbanes-Oxley Act Requirements      46  
+
+ARTICLE VII.         THE SERVICER
+
+     46 ��
+
+SECTION 7.01
+
+   Representations of Servicer      46  
+
+SECTION 7.02
+
+   Indemnities of Servicer      47  
+
+SECTION 7.03
+
+   Merger or Consolidation of, or Assumption of the Obligations of, Servicer   
+  48  
+
+SECTION 7.04
+
+   Limitation on Liability of Servicer and Others      49  
+
+SECTION 7.05
+
+   NMAC Not To Resign as Servicer      49  
+
+ARTICLE VIII.         DEFAULT
+
+     50  
+
+SECTION 8.01
+
+   Servicer Default      50  
+
+SECTION 8.02
+
+   Appointment of Successor      51  
+
+SECTION 8.03
+
+   Notification      52  
+
+SECTION 8.04
+
+   Waiver of Past Defaults      52  
+
+ 
+
+ii   (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+(continued)
+
+ 
+
+          Page  
+
+ARTICLE IX.         TERMINATION; RELEASE OF RECEIVABLES
+
+     53  
+
+SECTION 9.01
+
+   Optional Purchase of All Receivables      53  
+
+SECTION 9.02
+
+   Release of Receivables      53  
+
+SECTION 9.03
+
+   Termination      54  
+
+SECTION 9.04
+
+   Rights of the Certificateholders      54  
+
+ARTICLE X.         MISCELLANEOUS
+
+     54  
+
+SECTION 10.01
+
+   Amendment      54  
+
+SECTION 10.02
+
+   Protection of Title to Trust      55  
+
+SECTION 10.03
+
+   Notices      56  
+
+SECTION 10.04
+
+   Limitations on Rights of Others      57  
+
+SECTION 10.05
+
+   Severability      57  
+
+SECTION 10.06
+
+   Separate Counterparts and Electronic Signature      57  
+
+SECTION 10.07
+
+   Headings      57  
+
+SECTION 10.08
+
+   Governing Law      58  
+
+SECTION 10.09
+
+   Assignment by Issuer      58  
+
+SECTION 10.10
+
+   Nonpetition Covenant      58  
+
+SECTION 10.11
+
+   Limitation of Liability of Owner Trustee and Indenture Trustee      58  
+
+SECTION 10.12
+
+   Waivers      59  
+
+SECTION 10.13
+
+   Dispute Resolution      59  
+
+SECTION 10.14
+
+   Cooperation with Voting      62  
+
+ 
+
+iii   (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SALE AND SERVICING AGREEMENT, dated as of April 29, 2020 (this “Agreement”),
+among NISSAN AUTO RECEIVABLES 2020-A OWNER TRUST, a Delaware statutory trust
+(the “Issuer”), NISSAN AUTO RECEIVABLES CORPORATION II, a Delaware corporation
+(the “Seller”), NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation in
+its individual capacity (in such capacity, “NMAC”) and as Servicer (in such
+capacity, the “Servicer”), and U.S. Bank National Association, a national
+banking association, as indenture trustee (the “Indenture Trustee”). Capitalized
+terms used herein without definition shall have the respective meanings assigned
+to such terms in Article I.
+
+WHEREAS, the Issuer desires to purchase a portfolio of receivables arising in
+connection with retail installment sales contracts secured by new, near-new or
+used automobiles and light-duty trucks originated by NMAC in the ordinary course
+of business and sold to the Seller;
+
+WHEREAS, the Seller is willing to sell such receivables to the Issuer; and
+
+WHEREAS, the Servicer is willing to service such receivables.
+
+NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
+contained, the parties hereto hereby agree as follows:
+
+ARTICLE I.
+
+Definitions
+
+SECTION 1.01 Definitions. Except as otherwise provided in this Agreement,
+whenever used herein, the following words and phrases, unless the context
+otherwise requires, shall have the following respective meanings:
+
+“60-Day Delinquent Receivables” means, as of any date of determination, all
+Receivables (other than Repurchased Receivables and Defaulted Receivables) that
+are sixty (60) or more days delinquent as of such date (or, if such date is not
+the last day of a Collection Period, as of the last day of the Collection Period
+immediately preceding such date), as determined in accordance with the
+Servicer’s Customary Servicing Practices.
+
+“Account Property” means the Accounts, all amounts and investments held from
+time to time in any Account (whether in the form of deposit accounts, Physical
+Property, book-entry securities, uncertificated securities or otherwise), and
+all proceeds of the foregoing.
+
+“Accounts” means, collectively, the Collection Account and the Reserve Account.
+
+“Action” shall have the meaning assigned to such term in Section 11.03(a) of the
+Indenture.
+
+“Adjusted Pool Balance” means, at any time, an amount equal to the Pool Balance
+minus the YSOC Amount.
+
+“Administration Agreement” means the Administration Agreement, dated as of the
+Closing Date, among the Administrator, the Issuer, the Indenture Trustee and the
+Owner Trustee.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Administrator” means NMAC, or any successor Administrator under the
+Administration Agreement.
+
+“Affiliate” means, with respect to any specified Person, any other Person
+controlling or controlled by or under common control with such specified Person.
+For the purposes of this definition, “control,” when used with respect to any
+specified Person, means the power to direct the management and policies of such
+Person, directly or indirectly, whether through the ownership of voting
+securities, by contract or otherwise; and the term “controlling” and
+“controlled” have meanings correlative to the foregoing.
+
+“Amount Financed” with respect to any Receivable, means the amount advanced
+under the Receivable toward the purchase price of the related Financed Vehicle
+and any related costs, including but not limited to accessories, insurance
+premiums, service and warranty contracts and other items customarily financed as
+part of retail automobile and light-duty truck installment sale contracts.
+
+“Annual Percentage Rate” or “APR” of a Receivable means the annual rate of
+finance charges stated in such Receivable.
+
+“Applicant” shall have the meaning assigned to such term in Section 7.01 of the
+Indenture.
+
+“Asset Representations Review Agreement” means the Asset Representations Review
+Agreement, dated as of the date hereof, between the Issuer, the Sponsor, the
+Servicer and the Asset Representations Reviewer.
+
+“Asset Representations Reviewer” means Clayton Fixed Income Services LLC, or any
+successor Asset Representations Reviewer under the Asset Representations Review
+Agreement.
+
+“Asset Review” shall have the meaning assigned to such term in the Asset
+Representations Review Agreement.
+
+“Assignment” means the document of assignment attached to the Purchase Agreement
+as Exhibit A.
+
+“Authorized Officer” means (a) with respect to the Issuer, (i) any officer of
+the Owner Trustee who is authorized to act for the Owner Trustee in matters
+relating to the Issuer and who is identified on the list of Authorized Officers
+delivered by the Owner Trustee to the Indenture Trustee on the Closing Date and
+(ii) so long as the Administration Agreement is in effect, the President, any
+Vice President, the Treasurer, any Assistant Treasurer, the Secretary, and any
+Assistant Secretary of the Administrator, (b) with respect to the Seller or the
+Servicer, any chairman of the board, the president, any executive vice
+president, any vice president, the treasurer, any assistant treasurer or the
+controller of the Seller or the Servicer, as applicable, (c) with respect to the
+Indenture Trustee, any officer within the Corporate Trust Office of the
+Indenture Trustee, including any Vice President, Assistant Vice President,
+Secretary, Assistant Secretary or any other officer of the Indenture Trustee
+customarily performing functions similar to those performed by any of the above
+designated officers and also, with respect to a particular matter, any other
+officer to whom such matter is referred because of such officer’s knowledge of
+
+ 
+
+   2    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+and familiarity with the particular subject and who, in each case, shall have
+direct responsibility for the administration of the Indenture and (d) with
+respect to the Owner Trustee, any officer in the Corporate Trust Administration
+Department of the Owner Trustee with direct responsibility for the
+administration of the Trust Agreement and the Basic Documents on behalf of the
+Owner Trustee.
+
+“Available Amounts” means, with respect to any Distribution Date, the sum of
+(i) all Collections received by the Servicer during the related Collection
+Period, (ii) the sum of the Repurchase Payments deposited into the Collection
+Account with respect to each Receivable that is to become a Repurchased
+Receivable on such Distribution Date and (iii) in the case of an Optional
+Purchase, the Optional Purchase Price.
+
+“Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. § 101 et
+seq.
+
+“Bankruptcy Remote Party” means each of NARC II, the Issuer, any other trust
+created by NARC II or any limited liability company or corporation wholly owned
+by NARC II.
+
+“Base Servicing Fee” means the fee payable to the Servicer on each Distribution
+Date for services rendered during the related Collection Period, which shall be
+equal to one-twelfth of the Servicing Rate multiplied by the Pool Balance as of
+the close of business on the last day of the immediately preceding Collection
+Period or, with respect to the first Distribution Date, the Original Pool
+Balance.
+
+“Basic Documents” means the Purchase Agreement, the Trust Agreement, the
+Certificate of Trust, this Agreement, the Indenture, the Administration
+Agreement, the Asset Representations Review Agreement, the Note Depository
+Agreement and the other documents and certificates delivered in connection
+herewith and therewith.
+
+“Benefit Plan” means an “employee benefit plan” as defined in Section 3(3) of
+ERISA, which is subject to the provisions of Title I of ERISA, a “plan”
+described in and subject to Section 4975 of the Code or any entity whose
+underlying assets include “plan assets” by reason of an employee benefit plan’s
+or plan’s investment in the entity.
+
+“Book-Entry Notes” means a beneficial interest in the Notes, ownership and
+transfers of which shall be made through book entries by a Clearing Agency as
+described in Section 2.10 of the Indenture.
+
+“Business Day” means any day except a Saturday, a Sunday or a day on which banks
+in the city and state where the Corporate Trust Office is located, New York,
+New York, Franklin, Tennessee, Irving, Texas or Wilmington, Delaware are
+authorized or obligated by law, regulation, executive order or governmental
+decree to be closed.
+
+“Certificate” means any of the Certificates executed by the Issuer and
+authenticated by the Owner Trustee, evidencing a beneficial ownership interest
+in the Trust, substantially in the form set forth in Exhibit A to the Trust
+Agreement.
+
+ 
+
+   3    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Certificate Balance” means, as of any Distribution Date, the Original
+Certificate Balance, reduced by all amounts distributed to the
+Certificateholders pursuant to Section 5.06(a)(viii) of this Agreement and/or
+Section 5.04(b)(6) of the Indenture (but in no event less than zero). For the
+purposes of determining whether the vote of the requisite percentage of
+Certificateholders necessary to effect any consent, waiver, request or demand
+shall have been obtained, the Certificate Balance shall be deemed to be reduced
+by the amount equal to the balance (without giving effect to this provision)
+evidenced by any Certificate registered in the name of the Seller, the Servicer
+or any Person actually known to an Authorized Officer of the Owner Trustee or
+the Indenture Trustee, as the case may be, to be the Seller or the Servicer or
+any of their Affiliates and the vote of any such party shall be excluded for
+such calculation (unless at such time all Certificates are then owned by the
+Seller or the Servicer or any of their Affiliates).
+
+“Certificate Distribution Account” means an Eligible Account established by the
+Owner Trustee pursuant to Section 5.01(a) of the Trust Agreement.
+
+“Certificate Factor” means, with respect to any Distribution Date, a seven-digit
+decimal figure obtained by dividing the Certificate Balance as of the close of
+business on the last day of the related Collection Period by the Original
+Certificate Balance.
+
+“Certificate of Title” means, with respect to any Financed Vehicle, the
+certificate of title or other documentary evidence of ownership of such Financed
+Vehicle as issued by the department, agency or official of the jurisdiction
+(whether in paper or electronic form) in which such Financed Vehicle is titled
+responsible for accepting applications for, and maintaining records regarding,
+certificates of title and liens thereon.
+
+“Certificate of Trust” means the Certificate of Trust filed with respect to the
+formation of the Issuer pursuant to Section 3810(a) of the Statutory Trust Act.
+
+“Certificate Owner” means, with respect to a Certificate, any Person who is the
+beneficial owner of such Certificate.
+
+“Certificate Pool Factor” means, with respect to any Distribution Date, a seven
+digit decimal figure obtained by dividing the Certificate Balance as of the
+close of business on the last day of the related Collection Period by the
+Original Pool Balance.
+
+“Certificate Register” means the register maintained by the Certificate
+Registrar pursuant to Section 3.03 of the Trust Agreement recording the names of
+the Certificateholders.
+
+“Certificate Registrar” means U.S. Bank National Association, unless and until a
+successor thereto is appointed pursuant to Section 3.03 of the Trust Agreement.
+The Certificate Registrar initially designates its offices at 190 South LaSalle
+Street, 7th Floor, Chicago, IL 60603, Attention: NAROT 2020-A, as its offices
+for purposes of Section 3.03 of the Trust Agreement.
+
+“Certificateholder” means a Person in whose name a Certificate is registered in
+the Certificate Register.
+
+“Class” means any one of the classes of the Notes.
+
+ 
+
+   4    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Class A-1 Final Scheduled Distribution Date” means April 15, 2021.
+
+“Class A-1 Interest Rate” means 0.97793% per annum.
+
+“Class A-1 Note” means any of the 0.97793% Asset Backed Notes, Class A-1, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-1 Noteholder” means the Person in whose name a Class A-1 Note is
+registered in the Note Register.
+
+“Class A-2 Final Scheduled Distribution Date” means December 15, 2022.
+
+“Class A-2 Interest Rate” means 1.45% per annum.
+
+“Class A-2 Note” means any of the 1.45% Asset Backed Notes, Class A-2, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-2 Noteholder” means the Person in whose name a Class A-2 Note is
+registered in the Note Register.
+
+“Class A-3 Final Scheduled Distribution Date” means December 16, 2024.
+
+“Class A-3 Interest Rate” means 1.38% per annum.
+
+“Class A-3 Note” means any of the 1.38% Asset Backed Notes, Class A-3, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-3 Noteholder” means the Person in whose name a Class A-3 Note is
+registered in the Note Register.
+
+“Class A-4 Final Scheduled Distribution Date” means May 17, 2027.
+
+“Class A-4 Interest Rate” means 1.70% per annum.
+
+“Class A-4 Note” means any of the 1.70% Asset Backed Notes, Class A-4, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-4 Noteholder” means the Person in whose name a Class A-4 Note is
+registered in the Note Register.
+
+“Clearing Agency” means an organization registered as a “clearing agency”
+pursuant to Section 17A of the Exchange Act.
+
+“Clearing Agency Participant” means a broker, dealer, bank, other financial
+institution or other Person for whom from time to time a Clearing Agency effects
+book-entry transfers and pledges of securities deposited with the Clearing
+Agency.
+
+“Closing Date” means April 29, 2020.
+
+ 
+
+   5    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Code” means the Internal Revenue Code of 1986, as amended.
+
+“Collateral” means the property of the Issuer subject to the Granting Clause of
+the Indenture.
+
+“Collection Account” means the account designated as such, established and
+maintained pursuant to Section 5.01.
+
+“Collection Period” means the period commencing on the first day of each
+calendar month and ending on the last day of such calendar month (or, in the
+case of the initial Collection Period, the period commencing on the close of
+business on the Cut-off Date and ending on April 30, 2020). As used herein, the
+“related” Collection Period with respect to a Distribution Date shall be deemed
+to be the Collection Period which precedes such Distribution Date.
+
+“Collections” means, for any Distribution Date, the sum of the following amounts
+received during the related Collection Period: (i) all collections on
+Receivables, (ii) without duplication of amounts described in clause (i), all
+Net Liquidation Proceeds, and (iii) the amount, if any, deposited into the
+Collection Account from the Reserve Account.
+
+“Commission” means the U.S. Securities and Exchange Commission.
+
+“Corporate Trust Office” means (a) with respect to the Owner Trustee, the
+principal corporate trust office of the Owner Trustee located at Rodney Square
+North, 1100 North Market Street, Wilmington, Delaware 19890; or at such other
+address as the Owner Trustee may designate by notice to the Certificateholders,
+or the principal corporate trust office of any successor Owner Trustee (the
+address of which the successor Owner Trustee will notify the Certificateholders)
+and (b) with respect to the Indenture Trustee, the office of the Indenture
+Trustee at which at any particular time its corporate trust business shall be
+administered, which office at the date of execution of this Agreement is located
+at: (i) for note transfer/surrender purposes, U.S. Bank National Association,
+111 Fillmore Avenue East, St. Paul, MN 55107, Attention: Bondholder Services,
+and (ii) for all other purposes, U.S. Bank National Association, 190 South
+LaSalle Street, 7th Floor, Chicago, IL 60603 (email: brian.kozack@usbank.com),
+Attention: NAROT 2020-A; or at such other address as the Indenture Trustee may
+designate from time to time by notice to the Noteholders, the Issuer and the
+Administrator, or the principal corporate trust office of any successor
+Indenture Trustee at the address designated by such successor Indenture Trustee
+by notice to the Noteholders, the Issuer and the Administrator.
+
+“Customary Servicing Practices” means the customary servicing practices of the
+Servicer with respect to all comparable motor vehicle receivables that the
+Servicer services for itself and others, as such practices may be changed from
+time to time by the Servicer in its sole discretion.
+
+“Cut-off Date” means the close of business on March 31, 2020.
+
+“Damages” shall have the meaning assigned to such term in Section 7.02.
+
+“Dealer” means the dealer who sold a Financed Vehicle and who originated and
+assigned the related Receivable to NMAC under an existing agreement between such
+dealer and NMAC.
+
+ 
+
+   6    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Dealer Recourse” means, with respect to a Receivable, all recourse rights
+against the Dealer which originated the Receivable, and any successor Dealer.
+
+“Default” means any occurrence that is, or with notice or the lapse of time or
+both would become, an Event of Default.
+
+“Defaulted Receivable” means (a) a Receivable (other than a Repurchased
+Receivable), which, by its terms, is delinquent for 120 or more days, (b) with
+respect to Receivables that are delinquent for less than 120 days, the Servicer
+has (i) determined, in accordance with its customary servicing practices, that
+eventual payment in full is unlikely or (ii) repossessed the Financed Vehicle,
+or (c) a Receivable with respect to which the Servicer has received notification
+that the related Obligor is subject to proceedings under Chapter 13 of the
+Bankruptcy Code.
+
+“Definitive Notes” shall have the meaning assigned to such term in Section 2.10
+of the Indenture.
+
+“Delinquency Percentage” means, for any Distribution Date and the related
+Collection Period, an amount equal to the ratio (expressed as a percentage) of
+(i) the aggregate Principal Balance of all 60-Day Delinquent Receivables as of
+the last day of such Collection Period to (ii) the Pool Balance as of the last
+day of such Collection Period.
+
+“Delinquency Trigger” means, for any Distribution Date and the related
+Collection Period, 4.90%.
+
+“Delivery” when used with respect to Account Property means:
+
+(a) with respect to (I) bankers’ acceptances, commercial paper, and negotiable
+certificates of deposit and other obligations that constitute “instruments” as
+defined in Section 9-102(a)(47) of the UCC and are susceptible of physical
+delivery, transfer of actual possession thereof to the Indenture Trustee or its
+nominee or custodian by physical delivery to the Indenture Trustee or its
+nominee or custodian endorsed to the Indenture Trustee or its nominee or
+custodian or endorsed in blank, and (II) with respect to a “certificated
+security” (as defined in Section 8-102(a)(4) of the UCC) transfer of actual
+possession thereof (i) by physical delivery of such certificated security to the
+Indenture Trustee or its nominee or custodian endorsed to, or registered in the
+name of, the Indenture Trustee or its nominee or custodian or endorsed in blank,
+or to another person, other than a “securities intermediary” (as defined in
+Section 8-102(a)(14) of the UCC), who acquires possession of the certificated
+security on behalf of the Indenture Trustee or its nominee or custodian or,
+having previously acquired possession of the certificate, acknowledges that it
+holds for the Indenture Trustee or its nominee or custodian or (ii) if such
+certificated security is in registered form, by delivery thereof to a
+“securities intermediary”, endorsed to or registered in the name of the
+Indenture Trustee or its nominee or custodian, and the making by such
+“securities intermediary” of entries on its books and records identifying such
+certificated securities as belonging to the Indenture Trustee or its nominee or
+custodian and the sending by such “securities intermediary” of a confirmation of
+the purchase of such certificated security by the Indenture Trustee or its
+nominee or custodian (all of the foregoing, “Physical Property”), and, in any
+event, any such Physical Property in registered form shall be in the name
+
+ 
+
+   7    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+of the Indenture Trustee or its nominee or custodian; and such additional or
+alternative procedures as may hereafter become appropriate to effect the
+complete transfer of ownership of any such Account Property to the Indenture
+Trustee or its nominee or custodian, consistent with changes in applicable law
+or regulations or the interpretation thereof;
+
+(b) with respect to any securities issued by the U.S. Treasury, the Federal Home
+Loan Mortgage Corporation, the Federal National Mortgage Association or the
+other government agencies, instrumentalities and establishments of the United
+States identified in Appendix A to Federal Reserve Bank Operating Circular No. 7
+as in effect from time to time that is a “book-entry security” (as such term is
+defined in Federal Reserve Bank Operating Circular No. 7) held in a securities
+account and eligible for transfer through the Fedwire® Securities Service
+operated by the Federal Reserve System pursuant to Federal book-entry
+regulations, the following procedures, all in accordance with applicable law,
+including applicable Federal regulations and Articles 8 and 9 of the UCC:
+book-entry registration of such Account Property to an appropriate securities
+account maintained with a Federal Reserve Bank by a “participant” (as such term
+is defined in Federal Reserve Bank Operating Circular No. 7) that is a
+“depository institution” (as defined in Section 19(b)(1)(A) of the Federal
+Reserve Act) pursuant to applicable Federal regulations, and issuance by such
+depository institution of a deposit notice or other written confirmation of such
+book-entry registration to the Indenture Trustee or its nominee or custodian of
+the purchase by the Indenture Trustee or its nominee or custodian of such
+book-entry securities; the making by such depository institution of entries in
+its books and records identifying such book entry security held through the
+Federal Reserve System pursuant to Federal book-entry regulations or a security
+entitlement thereto as belonging to the Indenture Trustee or its nominee or
+custodian and indicating that such depository institution holds such Account
+Property solely as agent for the Indenture Trustee or its nominee or custodian;
+and such additional or alternative procedures as may hereafter become
+appropriate to effect complete transfer of ownership of any such Account
+Property to the Indenture Trustee or its nominee or custodian, consistent with
+changes in applicable law or regulations or the interpretation thereof; and
+
+(c) with respect to any item of Account Property that is an “uncertificated
+security” (as defined in Section 8-102(a)(18) of the UCC) and that is not
+governed by clause (b) above, (i) registration on the books and records of the
+issuer thereof in the name of the Indenture Trustee or its nominee or custodian,
+or (ii) registration on the books and records of the issuer thereof in the name
+of another person, other than a securities intermediary, who acknowledges that
+it holds such uncertificated security for the benefit of the Indenture Trustee
+or its nominee or custodian.
+
+“Depositor” means NARC II in its capacity as depositor under the Trust
+Agreement.
+
+“Depositor’s Formation Documents” means the Amended and Restated Certificate of
+Incorporation of Nissan Auto Receivables Corporation II, dated as of January 10,
+2001 and the by-laws of NARC II, each as may be amended from time to time.
+
+“Designated Account” means (a) so long as the Administrator or one of its
+Affiliates is the sole Certificateholder, the account designated by such
+Certificateholder (which need not be under the control of the Paying Agent) and
+(b) at any time thereafter, the Certificate Distribution Account.
+
+ 
+
+   8    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Determination Date” means the tenth calendar day of each calendar month, or if
+such tenth day is not a Business Day, the next succeeding Business Day.
+
+“Distribution Date” means, for each Collection Period, the 15th calendar day of
+the following calendar month, or if the 15th day is not a Business Day, the next
+succeeding Business Day, commencing May 15, 2020.
+
+“Domestic Corporation” means an entity that is treated as a corporation for
+United States federal income tax purposes and is a United States person under
+Section 7701(a)(30) of the Code.
+
+“DTC” means The Depository Trust Company.
+
+“Eligible Account” means (a) an account maintained with a depository institution
+or trust company (which may be the Owner Trustee, the Indenture Trustee or any
+of their respective Affiliates) organized under the laws of the United States of
+America or any one of the states thereof or the District of Columbia (or any
+domestic branch of a foreign bank) that is subject to regulations substantially
+similar to 12 CFR §9.10(b) (i) which at all times has either (A) a long-term
+senior unsecured debt rating of at least “Aa2” by Moody’s and at least “BBB” by
+S&P, (B) a certificate of deposit rating of at least “P-1” by Moody’s and at
+least “A-2” by S&P or (C) such other rating that is acceptable to each Rating
+Agency, as evidenced by satisfaction of the Rating Agency Condition (each of
+(A), (B) or (C), the “Required Deposit Ratings”) and (ii) whose deposits are
+insured by the Federal Deposit Insurance Corporation; provided, that a foreign
+financial institution shall be deemed to satisfy clause (ii) if such foreign
+financial institution meets the requirements of Rule 13k-1(b)(1) under the
+Exchange Act (17 CFR §240.13k-1(b)(1)) or (b) a segregated trust account in the
+trust department of the Indenture Trustee or the Owner Trustee, as the case may
+be.
+
+“Eligible Investments” means, at any time, any one or more of the following
+obligations, instruments or securities:
+
+(i) obligations of, and obligations fully guaranteed as to timely payment of
+principal and interest by, the United States or any agency thereof, provided
+such obligations are backed by the full faith and credit of the United States;
+
+(ii) general obligations of or obligations guaranteed by the Federal National
+Mortgage Association or any State; provided that such obligations have the
+highest available credit rating from each Rating Agency for such obligations;
+
+(iii) securities bearing interest or sold at a discount issued by any
+corporation incorporated under the laws of the United States or of any State;
+provided, that at the time of such investment or contractual commitment
+providing for such investment, either (a) the long-term unsecured debt of such
+corporation has the highest available rating from each Rating Agency for such
+obligations or (b) the commercial paper or other short-term debt of such
+corporation that is then rated has the highest available credit rating of each
+Rating Agency for such obligations;
+
+ 
+
+   9    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(iv) certificates of deposit, demand deposits, time deposits or bankers’
+acceptances issued by any depository institution or trust company incorporated
+under the laws of the United States or any State and subject to supervision and
+examination by banking authorities of one or more of such jurisdictions;
+provided, however, that at the time of the investment or contractual commitment
+to invest therein, the commercial paper or other short-term unsecured debt
+obligations (other than such obligations the rating of which is based on the
+credit of a Person other than such depository institution or trust company)
+thereof shall have a credit rating from each of the Rating Agencies in the
+highest investment category granted thereby (including applicable plus signs);
+
+(v) certificates of deposit that are issued by any bank, trust company, savings
+bank or other savings institution and insured up to the maximum amount insurable
+by the FDIC;
+
+(vi) investments in money market funds having a rating from each of the Rating
+Agencies in the highest investment category granted thereby (including funds for
+which the Owner Trustee, the Indenture Trustee or any of their respective
+Affiliates is investment manager or advisor);
+
+(vii) repurchase obligations held by the Owner Trustee or Indenture Trustee with
+respect to any obligation or security described in clauses (i), (ii) or
+(viii) hereof or any other obligation or security issued or guaranteed by any
+other agency or instrumentality of the United States, in either case entered
+into with a federal agency or a depository institution or trust company (acting
+as principal) described in clause (iv) above; and
+
+(viii) any other investment with respect to which the acquisition of such
+investment as an Eligible Investment will satisfy the Rating Agency Condition;
+
+provided, that each of the foregoing obligations, instruments and securities
+shall mature no later than the Business Day prior to the date on which such
+funds are required to be available for application pursuant to any related Basic
+Document (other than in the case of the investment of monies in obligations,
+instruments or securities of which the entity at which the related account is
+located is the obligor, which may mature on such date), and shall be required to
+be held to such maturity.
+
+For purposes of this definition, any reference to the highest available credit
+rating of an obligation shall mean the highest available credit rating for such
+obligation (excluding any “+” signs associated with such rating) or such lower
+credit rating (as approved in writing by each Rating Agency) as will not result
+in the qualification, downgrading or withdrawal of the rating then assigned by
+such Rating Agency to any of the Notes.
+
+“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
+
+“Event of Default” shall have the meaning assigned to such term in Section 5.01
+of the Indenture.
+
+ 
+
+   10    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Exchange Act” means the Securities Exchange Act of 1934.
+
+“Executive Officer” means, with respect to any corporation or depositary
+institution, the Chief Executive Officer, Chief Operating Officer, Chief
+Financial Officer, President, Executive Vice President, any Vice President, the
+Secretary or the Treasurer of such corporation or depositary institution; and
+with respect to any partnership, any general partner thereof.
+
+“Expenses” shall have the meaning assigned to such term in Section 8.01 of the
+Trust Agreement.
+
+“FATCA” means Sections 1471 through 1474 of the Code, as of the date hereof (or
+any amended or successor provisions that are substantially similar), any current
+or future regulations or official interpretations thereunder or official
+interpretations thereof and any agreements entered into pursuant to
+Section 1471(b)(1) of the Code, any published intergovernmental agreement
+entered into in connection with the implementation the foregoing and any fiscal
+or regulatory legislation, rules or official practices adopted pursuant to such
+published intergovernmental agreement.
+
+“FATCA Withholding Tax” means any withholding or deduction required pursuant to
+FATCA.
+
+“Final Scheduled Distribution Date” means, the Class A-1 Final Scheduled
+Distribution Date, the Class A-2 Final Scheduled Distribution Date, the
+Class A-3 Final Scheduled Distribution Date and the Class A-4 Final Scheduled
+Distribution Date, as applicable.
+
+“Financed Vehicle” means a new, near-new or used automobile or light-duty truck,
+together with all accessions thereto, securing an Obligor’s indebtedness under
+the related Receivable.
+
+“Grant” means mortgage, pledge, bargain, sell, warrant, alienate, remise,
+release, convey, assign, transfer, create, and grant a lien upon and a security
+interest in and right of set-off against, deposit, set over and confirm pursuant
+to the Indenture. A Grant of the Collateral or of any other agreement or
+instrument shall include all rights, powers and options (but none of the
+obligations) of the granting party thereunder, including the immediate and
+continuing right to claim for, collect, receive and give receipt for principal
+and interest payments in respect of the Collateral and all other moneys payable
+thereunder, to give and receive notices and other communications, to make
+waivers or other agreements, to exercise all rights and options, to bring
+Proceedings in the name of the granting party or otherwise, and generally to do
+and receive anything that the granting party is or may be entitled to do or
+receive thereunder or with respect thereto.
+
+“Hague Securities Convention” means the Hague Convention on the Law Applicable
+to Certain Rights in Respect of Securities Held with an Intermediary (concluded
+July 5, 2006).
+
+“Holder” or “Securityholder” means the registered holder of any Certificate or
+Note as evidenced by the Certificate Register or Note Register.
+
+ 
+
+   11    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Indenture” means the Indenture dated as of the Closing Date, between the Issuer
+and U.S. Bank National Association, as Indenture Trustee.
+
+“Indenture Trustee” means the Person acting as Indenture Trustee under the
+Indenture, its successors in interest and any successor trustee under the
+Indenture.
+
+“Independent” means, when used with respect to any specified Person, that the
+Person is in fact independent of the Seller, the Servicer, the Administrator,
+the Issuer or any other obligor on the Notes or any Affiliate of any of the
+foregoing Persons because, among other things, such Person (a) is not an
+employee, officer or director or otherwise controlled thereby or under common
+control therewith, (b) does not have any direct financial interest or any
+material indirect financial interest therein (whether as holder of securities
+thereof or party to contract therewith or otherwise), and (c) is not and has not
+within the preceding twelve months been a promoter, underwriter, trustee,
+partner, director or person performing similar functions therefor or otherwise
+had legal, contractual or fiduciary or other duties to act on behalf of or for
+the benefit thereof.
+
+“Independent Certificate” means a certificate or opinion to be delivered to the
+Indenture Trustee, made by an Independent appraiser or other expert appointed by
+an Issuer Order and approved by the Indenture Trustee in the exercise of
+reasonable care, and such opinion or certificate shall state that the signer has
+read the definition of “Independent” and that the signer is Independent within
+the meaning thereof.
+
+“Insolvency Event” means, with respect to a specified Person, (a) the entry of a
+decree or order for relief by a court having jurisdiction in the premises in
+respect of such Person or all or substantially all of its property in an
+involuntary case under any applicable federal or state bankruptcy, insolvency or
+other similar law now or hereafter in effect, or appointing a receiver,
+liquidator, assignee, custodian, trustee, sequestrator or similar official for
+such Person or for all or substantially all of its property, or ordering the
+winding-up or liquidation of such Person’s affairs, and such decree or order
+shall remain unstayed and in effect for more than 90 consecutive days; or
+(b) the commencement by such Person of a voluntary case under any applicable
+federal or state bankruptcy, insolvency or other similar law now or hereafter in
+effect, or the consent by such Person to the entry of an order for relief in an
+involuntary case under any such law, or the consent by such Person to the
+appointment of or taking possession by a receiver, liquidator, assignee,
+custodian, trustee, sequestrator or similar official for such Person or for all
+or substantially all of its property, or the making by such Person of any
+general assignment for the benefit of creditors.
+
+“Instituting Noteholders” has the meaning set forth in Section 7.08(a) of the
+Indenture.
+
+“Interest Period” means, with respect to any Distribution Date and the Class A-1
+Notes, the period from (and including) the preceding Distribution Date or (in
+the case of the first Distribution Date) the Closing Date to (but excluding)
+such Distribution Date, and, with respect to any Distribution Date and the
+Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the period from
+(and including) the 15th day of the preceding calendar month or (in the case of
+the first Distribution Date) the Closing Date to (but excluding) the 15th day of
+the month in which such Distribution Date occurs.
+
+ 
+
+   12    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Interest Rate” means the Class A-1 Interest Rate, the Class A-2 Interest Rate,
+the Class A-3 Interest Rate or the Class A-4 Interest Rate, as the case may be.
+
+“Investor” means (a) with respect to any Book-Entry Note, each related Note
+Owner and (b) with respect to any Definitive Note, each related Noteholder.
+
+“Issuer” means Nissan Auto Receivables 2020-A Owner Trust unless and until a
+successor replaces it and, thereafter, means the successor and, for purposes of
+any provision contained herein and required by the TIA, each other obligor on
+the Notes.
+
+“Issuer Order” and “Issuer Request” mean a written order or request signed in
+the name of the Issuer by any one of its Authorized Officers and delivered to
+the Indenture Trustee.
+
+“Lien” means any security interest, lien, charge, pledge, equity or encumbrance
+of any kind, other than Permitted Liens.
+
+“Liquidated Receivable” means a Defaulted Receivable as to which the related
+Financed Vehicle has been liquidated by the Servicer.
+
+“Monthly Remittance Condition” shall have the meaning assigned to such term in
+Section 5.02.
+
+“Moody’s” means Moody’s Investors Service, Inc.
+
+“NARC II” means Nissan Auto Receivables Corporation II, a Delaware corporation.
+
+“Net Liquidation Proceeds” means the monies collected from whatever source on a
+Liquidated Receivable, net of the sum of any amounts expended by the Servicer
+for the account of the Obligor, plus any amounts required by law to be remitted
+to the Obligor.
+
+“Nissan” means Nissan Motor Co., Ltd.
+
+“NMAC” means Nissan Motor Acceptance Corporation, a California corporation.
+
+“Non-U.S. Person” means any Person who is not (i) a citizen or resident of the
+United States who is a natural person, (ii) a corporation or partnership (or an
+entity treated as a corporation or partnership) created or organized in or under
+the laws of the United States or any state thereof, including the District of
+Columbia (unless, in the case of a partnership, Treasury Regulations are adopted
+that provide otherwise), (iii) an estate, the income of which is subject to
+United States Federal income taxation, regardless of its source, (iv) a trust,
+if a court within the United States is able to exercise primary supervision over
+the administration of the trust and one or more United States persons (as
+defined in the Code and Treasury Regulations) have the authority to control all
+substantial decisions of the trust; or (v) a trust that was in existence prior
+to August 20, 1996 and that, under Treasury Regulations, is eligible to elect,
+and does validly elect, to be treated as a United States person (as defined in
+the Code and Treasury Regulations) despite not meeting the requirements of
+clause (iv).
+
+ 
+
+   13    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Note” means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or a Class A-4
+Note, as the context may require.
+
+“Note Depository Agreement” means the agreement entitled “Letter of
+Representations” dated on or before the Closing Date executed by the Issuer in
+favor of the Clearing Agency with respect to certain matters relating to the
+duties thereof with respect to the Book-Entry Notes.
+
+“Note Factor” means, with respect to any Class of Notes and any Distribution
+Date, a seven-digit decimal figure obtained by dividing the Outstanding Amount
+of such Class of Notes, as of the close of business on the last day of the
+related Collection Period, by the initial Outstanding Amount of that Class of
+Notes.
+
+“Note Owner” means, with respect to a Book-Entry Note, any Person who is the
+beneficial owner of such Book-Entry Note, as reflected on the books of the
+Clearing Agency or on the books of a Person maintaining an account with such
+Clearing Agency (directly as a Clearing Agency Participant or as an indirect
+participant, in each case in accordance with the rules of such Clearing Agency).
+
+“Note Pool Factor” means, with respect to any Class of Notes and any
+Distribution Date, a seven-digit decimal figure obtained by dividing the
+Outstanding Amount of such Class of Notes as of the close of business on the
+last day of the related Collection Period by the Original Pool Balance.
+
+“Note Register” means the Register of Noteholders’ information maintained by the
+Note Registrar pursuant to Section 2.04 of the Indenture.
+
+“Note Registrar” means the Indenture Trustee unless and until a successor Note
+Registrar shall have been appointed pursuant to Section 2.04 of the Indenture.
+
+“Noteholder” shall mean any of the Class A-1 Noteholders, the Class A-2
+Noteholders, the Class A-3 Noteholders or the Class A-4 Noteholders.
+
+“Noteholder Direction” has the meaning set forth in Section 7.08(a) of the
+Indenture.
+
+“Noteholders’ Interest Carryover Shortfall” means, with respect to any
+Distribution Date and a Class of Notes, the excess, if any, of the sum of the
+Noteholders’ Monthly Interest Distributable Amount for such Class for the
+preceding Distribution Date plus any outstanding Noteholders’ Interest Carryover
+Shortfall for such Class on such preceding Distribution Date, over the amount in
+respect of interest that is actually paid on the Notes of such Class on such
+preceding Distribution Date, plus, to the extent permitted by applicable law,
+interest on the Noteholders’ Interest Carryover Shortfall at the related
+Interest Rate for the related Interest Period (calculated on the same basis as
+interest on that Class of Notes for the same period).
+
+“Noteholders’ Interest Distributable Amount” means, with respect to any
+Distribution Date and a Class of Notes, the sum of the Noteholders’ Monthly
+Interest Distributable Amount for such Class and Distribution Date plus any
+outstanding Noteholders’ Interest Carryover Shortfall for such Class and
+Distribution Date.
+
+ 
+
+   14    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Noteholders’ Monthly Interest Distributable Amount” means, with respect to any
+Distribution Date and a Class of Notes, interest accrued for the related
+Interest Period (calculated on the basis of, in the case of the Class A-1 Notes,
+the actual number of days in such Interest Period and a year assumed to consist
+of 360 days, and in the case of the Class A-2 Notes, the Class A-3 Notes and the
+Class A-4 Notes, such Interest Period being assumed to consist of 30 days and a
+year assumed to consist of 360 days) at the related Interest Rate for such
+Class of Notes on the Outstanding Amount of the Notes of such Class on the
+immediately preceding Distribution Date, after giving effect to all payments of
+principal to Noteholders of such Class on or prior to such Distribution Date
+(or, in the case of the first Distribution Date, on the original principal
+amount of such Class of Notes).
+
+“Noteholders’ Principal Carryover Shortfall” means, with respect to any
+Distribution Date, the excess, if any, of the Noteholders’ Principal
+Distributable Amount for the preceding Distribution Date over the amount in
+respect of principal that is actually paid as principal on the Notes on such
+previous Distribution Date. Noteholders’ Principal Carryover Shortfall is not
+used to determine the amount of principal due on the Notes on any Distribution
+Date, but is used solely for reporting purposes.
+
+“Noteholders’ Principal Distributable Amount” means, with respect to any
+Distribution Date, an amount equal to the Principal Distribution Amount for such
+Distribution Date until the outstanding principal amount of each Class of Notes
+has been reduced to zero, and for any Distribution Date thereafter, an amount
+equal to zero.
+
+“Notes” means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and
+the Class A-4 Notes.
+
+“Obligor” on a Receivable means the purchaser or co-purchasers of the Financed
+Vehicle or any other Person who owes payments under the Receivable (but
+excluding any Dealer in respect of Dealer Recourse).
+
+“Officer’s Certificate” means a certificate signed by any Authorized Officer of
+the Issuer, the Seller or the Servicer, as applicable.
+
+“Opinion of Counsel” means one or more written opinions of counsel who may,
+except as otherwise provided herein, be an employee of or counsel to the Issuer,
+the Seller or the Servicer, which counsel shall be reasonably acceptable to the
+recipient of such opinion.
+
+“Optional Purchase” shall have the meaning assigned to such term in
+Section 9.01(a)
+
+“Optional Purchase Percentage” means 5.00%.
+
+“Optional Purchase Price” means, an amount equal to the greater of (a) the
+aggregate Repurchase Payments for the Receivables (including Receivables that
+became Defaulted Receivables in the Collection Period preceding the Distribution
+Date on which a purchase pursuant to Section 9.01 is effected) and (b) the sum
+of (i) the Outstanding Amount of all Classes of Notes, (ii) the Noteholders’
+Interest Distributable Amount for all Classes of Notes for such Distribution
+Date and (iii) any amounts due pursuant to Sections 5.06(a)(v) and (vi).
+
+ 
+
+   15    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Original Certificate Balance” means $47,137,850.19.
+
+“Original Pool Balance” means the aggregate Principal Balance of the Receivables
+on the Cut-off Date.
+
+“Original Principal Amount” means $162,000,000 for the Class A-1 Notes,
+$352,000,000 for the Class A-2 Notes, $401,000,000 for the Class A-3 Notes and
+$85,000,000 for the Class A-4 Notes.
+
+“Other Assets” means any assets (or interests therein) (other than the Owner
+Trust Estate) conveyed or purported to be conveyed by the Seller to another
+Person or Persons other than the Issuer, whether by way of a sale, capital
+contribution or by virtue of the granting of a lien.
+
+“Outstanding” means, as of the date of determination, all Notes theretofore
+authenticated and delivered under the Indenture except:
+
+(a) Notes theretofore canceled by the Note Registrar or delivered to the Note
+Registrar for cancellation;
+
+(b) Notes or portions thereof the payment for which money in the necessary
+amount has been theretofore deposited with the Indenture Trustee or any Paying
+Agent in trust for the Holders of such Notes; and
+
+(c) Notes in exchange for or in lieu of which other Notes have been
+authenticated and delivered pursuant to the Indenture unless proof satisfactory
+to the Indenture Trustee is presented that any such Notes are held by a
+protected purchaser;
+
+provided, that in determining whether the Holders of the requisite percentage of
+the Outstanding Amount of the Notes, or any Class of Notes, have given any
+request, demand, authorization, direction, notice, consent, or waiver hereunder
+or under any Basic Document, Notes owned by the Issuer, NARC II, NMAC, a
+Certificateholder or any Affiliate of any of the foregoing Persons shall be
+disregarded and deemed not to be Outstanding, unless all Notes are owned by the
+Issuer, NARC II, NMAC, a Certificateholder or any of their respective
+Affiliates; provided, further, that, in determining whether the Indenture
+Trustee shall be protected in relying upon any such request, demand,
+authorization, direction, notice, consent, or waiver, only Notes that the
+Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned
+that have been pledged in good faith may be regarded as Outstanding if the
+pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s
+right so to act with respect to such Notes and that the pledgee is not the
+Issuer, NARC II, NMAC, a Certificateholder or any Affiliate of any of the
+foregoing Persons.
+
+“Outstanding Amount” means the aggregate principal amount of all Notes, or, if
+indicated by the context, all Notes of any Class, Outstanding at the date of
+determination.
+
+“Owner Trust Estate” means all right, title and interest of the Issuer in and to
+the Receivables (other than Repurchased Receivables), and all monies paid
+thereon, and all monies accrued thereon, after the Cut-off Date; security
+interests in the Financed Vehicles and any accessions thereto; the Accounts and
+all funds deposited in the Accounts; all property (including
+
+ 
+
+   16    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+the right to receive Net Liquidation Proceeds) that shall have secured a
+Receivable and that shall have been acquired by or on behalf of the Issuer;
+proceeds from claims on any physical damage, credit life or disability insurance
+policies covering the Financed Vehicles or the Obligors; all right to receive
+payments in respect of any Dealer Recourse with respect to the Receivables; all
+right, title and interest of the Seller in and to the Purchase Agreement and the
+Assignment; all right, title and interest of the Issuer pursuant to this
+Agreement, the Administration Agreement; certain rebates of premiums and other
+amounts relating to certain insurance policies and other items financed under
+the Receivables in effect as of the Cut-off Date; and the proceeds of any and
+all of the foregoing.
+
+“Owner Trustee” means Wilmington Trust, National Association, not in its
+individual capacity but solely as Owner Trustee under the Trust Agreement, or
+any successor Owner Trustee under the Trust Agreement.
+
+“Paying Agent” means, (i) under the Indenture, U.S. Bank National Association,
+as Indenture Trustee, or any other Person that meets the eligibility standards
+for the Indenture Trustee set forth in Section 6.11 of the Indenture and is
+authorized by the Issuer to make the payments to and distributions from the
+Collection Account, including the payment of principal of or interest on the
+Notes on behalf of the Issuer, and (ii) under the Trust Agreement, any paying
+agent or co-paying agent appointed pursuant to Section 3.08 of the Trust
+Agreement that is authorized to make distributions from the Certificate
+Distribution Account, and shall initially be U.S. Bank National Association.
+
+“Permitted Liens” means (a) any liens created by the Basic Documents; (b) any
+liens for taxes not yet due and payable or the amount of which is being
+contested in good faith by appropriate proceedings; and (c) any liens of
+mechanics, suppliers, vendors, materialmen, laborers, employees, repairmen and
+other like liens securing obligations which are not due and payable or the
+amount or validity of which is being contested in good faith by appropriate
+proceedings.
+
+“Person” means any individual, corporation, estate, partnership, joint venture,
+association, joint stock company, limited liability company, trust,
+unincorporated organization or government or any agency or political subdivision
+thereof.
+
+“Physical Property” shall have the meaning assigned to such term in the
+definition of “Delivery.”
+
+“Pool Balance” as of the close of business on the last day of a Collection
+Period means the aggregate Principal Balance of the Receivables (reduced by the
+principal balance of any Repurchased Receivables and Defaulted Receivables) as
+of the close of business on such day.
+
+“Pool Factor” for a particular Class of Notes or Certificates on any
+Distribution Date means a seven-digit decimal figure indicating the principal
+amount of such Class of Notes or the Certificate Balance, as the case may be, as
+of the close of business on the last day of the related Collection Period as a
+fraction of the Original Pool Balance.
+
+ 
+
+   17    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Predecessor Note” means, with respect to any particular Note, every previous
+Note evidencing all or a portion of the same debt as that evidenced by such
+particular Note; and, for the purpose of this definition, any Note authenticated
+and delivered under Section 2.05 of the Indenture in lieu of a mutilated, lost,
+destroyed or stolen Note shall be deemed to evidence the same debt as the
+mutilated, lost, destroyed or stolen Note.
+
+“Prepayment” means, with respect to any Receivable, any prepayment, whether in
+part or in full, in respect of such Receivable.
+
+“Principal Balance” of a Receivable, as of any date of determination, means the
+outstanding principal balance of such Receivable calculated in accordance with
+the Customary Servicing Practices.
+
+“Principal Distribution Amount” means, with respect to any Distribution Date, an
+amount equal to (i) the excess, if any, of (x) the Adjusted Pool Balance as of
+the beginning of the related Collection Period, or in the case of the first
+Collection Period, as of the Cut-off Date, over (y) the Adjusted Pool Balance as
+of the end of the related Collection Period and (ii) any Noteholders’ Principal
+Distributable Amount not paid to the Noteholders on a prior Distribution Date
+because Available Amounts on such Distribution Date were not sufficient to make
+such payments; provided, however, that the Principal Distribution Amount on the
+Final Scheduled Distribution Date for any Class of Notes shall not be less than
+the amount necessary to reduce the outstanding principal amount of such Class to
+zero.
+
+“Proceeding” means any suit in equity, action at law or other judicial or
+administrative proceeding.
+
+“Purchase Agreement” means that certain agreement, dated as of the Closing Date,
+between NMAC and the Seller, relating to the purchase by the Seller from NMAC of
+the Receivables.
+
+“Purchased Assets” shall have the meaning assigned to such term in Section 2.1
+of the Purchase Agreement.
+
+“Rating Agency” means as of any date, any of the nationally recognized
+statistical rating organizations that has been requested by the Seller or one of
+its Affiliates to rate any Class of Notes and that is rating such Class of Notes
+on such date.
+
+“Rating Agency Condition” means, with respect to any event or action and each
+Rating Agency, either (a) written confirmation (which may be in the form of a
+letter, a press release or other publication, or a change in such Rating
+Agency’s published ratings criteria to this effect) by such Rating Agency that
+the occurrence of such event or action will not cause it to downgrade, qualify
+or withdraw its rating assigned to the Notes or (b) that such Rating Agency
+shall have been given notice of such event or action at least ten (10) days
+prior to such event or action (or, if ten (10) days’ advance notice is
+impracticable, as much advance notice as is practicable) and such Rating Agency
+shall not have issued any written notice that the occurrence of such event or
+action will cause it to downgrade, qualify or withdraw its rating assigned to
+the Notes. Notwithstanding the foregoing, no Rating Agency has any duty to
+review any notice given with respect to any event or action.
+
+ 
+
+   18    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Receivable” means any retail installment sale contract that appears on the
+Schedule of Receivables and that has not been released by the Issuer.
+
+“Receivable File” means the records (whether tangible or electronic) specified
+in Section 2.02 pertaining to a particular Receivable.
+
+“Record Date” means, with respect to the Notes of any Class and each
+Distribution Date, the Business Day immediately preceding such Distribution
+Date, and, with respect to the Certificates or if Definitive Notes, representing
+any Class of Notes, have been issued, the last day of the Collection Period
+preceding the related Distribution Date.
+
+“Redemption Date” shall have the meaning assigned to such term in
+Section 9.01(a).
+
+“Redemption Price” means an amount equal to the sum of (a) the Outstanding
+Amount of all Notes redeemed, plus (b) accrued and unpaid interest thereon at
+the Noteholders’ Interest Distributable Amount for the Notes being so redeemed,
+up to but excluding the Redemption Date.
+
+“Registered Holder” means the Person in whose name a Note is registered on the
+Note Register on the applicable Record Date.
+
+“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation
+AB), 17 C.F.R. §§229.1100-229.1125, as such regulation may be amended from time
+to time, subject to such clarification and interpretation as have been provided
+by the Commission in the adopting release (Asset-Backed Securities, Securities
+Act Release No. 33-8518. 70 Fed. Reg. 1,506, 1,531 (January 7, 2005);
+Asset-Backed Securities Disclosure and Registration, Securities Act Release
+No. 33-9638. 79 Fed. Reg. 57184 (September 24, 2014)) or by the staff of the
+Commission, or as may be provided in writing by the Commission or its staff from
+time to time.
+
+“Relevant Trustee” means (i) with respect to the control over or appropriate
+designation denoting ownership or control over any property comprising a portion
+of the Owner Trust Estate that either is not conveyed or pledged to the
+Indenture Trustee for the benefit of the Noteholders pursuant to the Granting
+Clause of the Indenture or that has been released from the lien of the
+Indenture, the Owner Trustee, and (ii) with respect to any property comprising a
+portion of the Collateral that has not been released from the lien of the
+Indenture, the Indenture Trustee; provided, however, that with respect to any
+property that is under the joint or separate control of a co-trustee or separate
+trustee under the Trust Agreement or the Indenture, respectively, “Relevant
+Trustee” shall refer to either or both of the Owner Trustee and such co-trustee
+or separate trustee or to either or both of the Indenture Trustee and such
+co-trustee or separate trustee, as the case may be.
+
+“Repurchase Payment” for any Repurchased Receivable as of the last day of any
+Collection Period, means the sum of the Principal Balance thereof as of the
+beginning of such Collection Period plus interest accrued thereon through the
+due date for the Obligor’s payment in such Collection Period at the related APR,
+after giving effect to the receipt of monies collected on such Repurchased
+Receivable, if any, during such Collection Period.
+
+ 
+
+   19    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Repurchased Receivable” means a Receivable purchased as of the close of
+business on the last day of a Collection Period by the Servicer pursuant to
+Section 4.06 by the Seller pursuant to Section 3.02 or by NMAC pursuant to
+Section 4.3 of the Purchase Agreement.
+
+“Required Deposit Rating” shall have the meaning assigned to such term in the
+definition of “Eligible Account.”
+
+“Required Rate” means, with respect to any Distribution Date, 6.10%.
+
+“Reserve Account” means the account designated as such, established and
+maintained pursuant to Section 5.01 and Section 5.07.
+
+“Reserve Account Initial Deposit” means $10,471,378.50.
+
+“Retained Notes” if any, means any Notes beneficially owned by the Issuer or an
+entity which, for U.S. federal income tax purposes, is treated as the same
+Person as the Issuer, until such time as such Notes are the subject of an
+opinion pursuant to Section 2.04(g) of the Indenture.
+
+“Review Notice” means the notice delivered by the Indenture Trustee in
+accordance with Section 7.08(b) of the Indenture to NMAC, the Seller, the Asset
+Representations Reviewer and the Servicer.
+
+“Review Report” shall have the meaning assigned to such term in Section 3.5 of
+the Asset Representations Review Agreement.
+
+“Review Satisfaction Date” means, with respect to any Asset Review, the first
+date on which (a) the Delinquency Percentage for any Payment Date exceeds the
+Delinquency Trigger and (b) a Noteholder Direction with respect to such Asset
+Review has occurred.
+
+“Schedule of Receivables” means the schedule of receivables on file with the
+Indenture Trustee, as it may be amended from time to time.
+
+“Section 385 Controlled Partnership” shall have the meaning set forth in
+Treasury Regulation Section 1.385-1(c)(1) for a “controlled partnership”.
+
+“Section 385 Expanded Group” shall have the meaning set forth in Treasury
+Regulation Section 1.385-1(c)(4) for an “expanded group”.
+
+“Secretary of State” means the Secretary of State of the State of Delaware.
+
+“Securities Act” means the Securities Act of 1933.
+
+“Securityholders” shall have the meaning assigned to such term in this
+Section 1.01 under the definition of “Holder.”
+
+“Seller” means NARC II, as the seller of the Receivables under this Agreement,
+and each successor to NARC II (in the same capacity) pursuant to Section 6.04.
+
+ 
+
+   20    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Servicer” means NMAC, as the servicer of the Receivables, and each successor to
+NMAC (in the same capacity) pursuant to Section 7.03 or 8.02.
+
+“Servicer Default” means an event specified in Section 8.01.
+
+“Servicer’s Certificate” means a certificate completed and executed on behalf of
+the Servicer by the president, any executive vice president, any vice president,
+the treasurer, any assistant treasurer, the controller or any assistant
+controller of the Servicer pursuant to Section 4.08.
+
+“Servicing Criteria” shall mean the “servicing criteria” set forth in
+Item 1122(d) of Regulation AB.
+
+“Servicing Rate” means 1.00% per annum.
+
+“Similar Law” means a law that is similar to the fiduciary responsibility or
+prohibited transaction provisions of ERISA or Section 4975 of the Code.
+
+“Simple Interest Method” means the method of allocating a fixed level payment to
+principal and interest pursuant to which the portion of such payment that is
+allocated to interest is equal to the product of the fixed rate of interest
+multiplied by the unpaid principal balance multiplied by the quotient obtained
+by calculating the period of time elapsed since the preceding payment of
+interest was made and dividing such period of time by 365 or 366, as
+appropriate.
+
+“Simple Interest Receivable” means any Receivable under which the portion of a
+payment allocable to interest and the portion allocable to principal is
+determined in accordance with the Simple Interest Method.
+
+“Specified Reserve Account Balance” means with respect to any Distribution Date,
+an amount equal to not less than 1.00% of the Adjusted Pool Balance as of the
+Cut-off Date provided, that on any Distribution Date after the Notes are no
+longer Outstanding following payment in full of the principal of and interest on
+the Notes, the “Specified Reserve Account Balance” shall be $0.
+
+“Sponsor” means NMAC.
+
+“Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
+Code § 3801 et seq.
+
+“Subject Receivables” means, for any Asset Review, all Receivables which are
+60-Day Delinquent Receivables as of the end of the Collection Period immediately
+preceding the related Review Satisfaction Date.
+
+“Successor Servicer” means any entity appointed as a successor to the Servicer
+pursuant to Section 8.02.
+
+“Supplemental Servicing Fee” means, with respect to any Distribution Date, all
+late fees, prepayment charges and other administrative fees and expenses or
+similar charges allowed by applicable law received by the Servicer with respect
+to the Receivables during the related Collection Period.
+
+ 
+
+   21    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“S&P” means S&P Global Ratings.
+
+“Tax Information” means information and/or properly completed and signed tax
+certifications sufficient to eliminate the imposition of or to determine the
+amount of any withholding of tax, including FATCA Withholding Tax.
+
+“Test Fail” shall have the meaning assigned to such term in the Asset
+Representations Review Agreement.
+
+“Transferred Assets” shall have the meaning assigned to such term in
+Section 2.01.
+
+“Treasury Regulations” means regulations, including proposed or temporary
+regulations, promulgated under the Code. References herein to specific
+provisions of proposed or temporary regulations shall include analogous
+provisions of final Treasury Regulations or other successor Treasury
+Regulations.
+
+“Trust Agreement” means the Trust Agreement, dated as of April 2, 2020, as
+amended by the Amended and Restated Trust Agreement, dated as of the Closing
+Date, between the Seller, Wilmington Trust, National Association, as Owner
+Trustee, and U.S. Bank National Association, as Certificate Registrar and Paying
+Agent.
+
+“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force
+on the date hereof, unless otherwise specifically provided.
+
+“UCC” means the Uniform Commercial Code as in effect in the relevant
+jurisdiction.
+
+“Verification Documents” means, with respect to any Note Owner, a certification
+from such Note Owner certifying that such Person is in fact, a Note Owner, as
+well as an additional piece of documentation reasonably satisfactory to the
+recipient, such as a trade confirmation, account statement, letter from a broker
+or dealer or other similar document.
+
+“YSOC Amount” means, (i) as of the Closing Date, $72,495,090.62, and
+(ii) thereafter, with respect to any Collection Period and the related
+Distribution Date, the aggregate amount by which the Principal Balance as of the
+last day of such Collection Period of each Receivable (other than a Receivable
+that is a non-collectible Receivable, a Defaulted Receivable or a Repurchased
+Receivable), exceeds the present value of each scheduled payment of each such
+Receivable assuming the discount rate of such Receivable is the greater of the
+Required Rate or the Receivable’s contract rate and that such scheduled payments
+(assumed to be equal monthly payments that amortize the Principal Balance of the
+Receivable to zero, using its contract rate, over the remaining term of the
+contract) are made on the last day of each month and each month has 30 days.
+
+ 
+
+   22    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 1.02 Usage of Terms. With respect to all terms in this Agreement, the
+singular includes the plural and the plural the singular; words importing any
+gender include the other genders; references to “writing” include printing,
+typing, lithography and other means of reproducing words in a visible form;
+references to agreements and other contractual instruments include all
+subsequent amendments, amendments and restatements and supplements thereto or
+changes therein entered into in accordance with their respective terms and not
+prohibited by this Agreement; references to Persons include their permitted
+successors and assigns; references to laws include their amendments and
+supplements, the rules and regulations thereunder and any successors thereto;
+the term “including” means “including without limitation;” and the term “or” is
+not exclusive.
+
+ARTICLE II.
+
+Conveyance of Receivables
+
+SECTION 2.01 Conveyance of Receivables.
+
+(a) In consideration of the promises and the agreements, provisions and
+covenants herein contained and other good and valuable consideration to be
+delivered to the Seller hereunder, the Seller does hereby sell, transfer, assign
+and otherwise convey to the Issuer, without recourse (but subject to the
+Seller’s obligations in this Agreement) (collectively, the “Transferred
+Assets”):
+
+(i) all right, title and interest of the Seller in and to the Purchased Assets;
+
+(ii) the rights of the Seller under the Purchase Agreement and the Assignment;
+
+(iii) all other assets comprising the Owner Trust Estate; and
+
+(iv) all proceeds of the foregoing.
+
+On the Closing Date, the Seller shall deliver to, or to the order of, the Issuer
+the Transferred Assets and in consideration therefor, the Issuer shall deliver
+to, or to the order of, the Seller, the Notes and the Certificates.
+Notwithstanding the foregoing, monies received in respect of the Receivables
+after the Cut-off Date and before the Closing Date shall be deposited by NMAC
+(in its individual capacity or as the Servicer) into the Collection Account no
+later than the Business Day preceding the first Distribution Date.
+
+(b) Notwithstanding the foregoing, in the event that the Receivables and other
+Transferred Assets are held to be property of the Seller, or if for any reason
+this Agreement is held or deemed to create indebtedness or a security interest
+in the Receivables and other Transferred Assets, then it is intended that:
+
+(i) This Agreement shall be deemed to be a security agreement within the meaning
+of Articles 8 and 9 of the New York UCC and the UCC of any other applicable
+jurisdiction;
+
+ 
+
+   23    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(ii) The conveyance provided for in Section 2.01 shall be deemed to be a grant
+by the Seller of, and the Seller hereby grants to the Issuer, a security
+interest in all of its right (including the power to convey title thereto),
+title and interest, whether now owned or hereafter acquired, in and to the
+Receivables and other Transferred Assets, to secure such indebtedness and the
+performance of the obligations of the Seller hereunder;
+
+(iii) The possession by the Issuer, or the Servicer as the Issuer’s agent, of
+the Receivable Files and any other property as constitute instruments, money,
+negotiable documents or chattel paper shall be deemed to be “possession by the
+secured party” or possession by the purchaser or a person designated by such
+purchaser, for purposes of perfecting the security interest pursuant to the New
+York UCC and the UCC of any other applicable jurisdiction; and
+
+(iv) Notifications to persons holding such property, and acknowledgments,
+receipts or confirmations from persons holding such property, shall be deemed to
+be notifications to, or acknowledgments, receipts or confirmations from, bailees
+or agents (as applicable) of the Issuer for the purpose of perfecting such
+security interest under applicable law.
+
+SECTION 2.02 Custody of Receivable Files. To assure uniform quality in servicing
+the Receivables and to reduce administrative costs, the Issuer, upon the
+execution and delivery of this Agreement, appoints the Servicer, and the
+Servicer accepts such appointment, to act as the agent of the Issuer as
+custodian of the following documents or instruments (or a photocopy or other
+image thereof that the Servicer shall keep on file in accordance with its
+Customary Servicing Practices) that are hereby constructively delivered to the
+Issuer with respect to each Receivable (but only to the extent applicable to
+such Receivable and only to the extent held in tangible paper form or electronic
+form) (collectively, the “Receivable Files”):
+
+(a) the original of each tangible record constituting or forming a part of such
+Receivable that is tangible chattel paper (as such term is used in Section 9-105
+of the UCC) and a single “authoritative copy” (as such term is used in
+Section 9-105 of the UCC) of each electronic record constituting or forming a
+part of each Receivable that is electronic chattel paper, fully executed by the
+Obligor;
+
+(b) the original credit application executed by the related Obligor;
+
+(c) the original Certificate of Title or, if not yet received, evidence that an
+application therefor has been submitted with the appropriate authority, a
+guaranty of title from a Dealer or such other document (electronic or otherwise,
+as used in the applicable jurisdiction) that the Servicer keeps on file, in
+accordance with its Customary Servicing Practices, evidencing the security
+interest of NMAC in the Financed Vehicle; provided, however, that in lieu of
+being held in the Receivable File, the Certificate of Title may be held by a
+third party service provider engaged by the Servicer to obtain or hold
+Certificates of Title; and
+
+ 
+
+   24    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(d) any and all other records (whether tangible or electronic) that the Servicer
+shall keep on file, in accordance with its Customary Servicing Practices,
+relating to such Receivable, the related Obligor or Financed Vehicle.
+
+SECTION 2.03 Acceptance by Issuer. The Issuer acknowledges its acceptance
+pursuant to this Agreement, of all right, title and interest in and to the
+Receivables and the other Transferred Assets conveyed by the Seller pursuant to
+this Agreement and declares and shall declare from and after the date hereof
+that the Issuer holds and shall hold such right, title and interest, upon the
+terms and conditions set forth in this Agreement.
+
+ARTICLE III.
+
+The Receivables
+
+SECTION 3.01 Representations and Warranties of the Seller with Respect to the
+Receivables. The Seller makes the representations and warranties set forth on
+Schedule I to this Agreement as to the Receivables on which the Issuer is deemed
+to have relied in acquiring the Receivables. Such representations and warranties
+speak as of the Closing Date or as of such date expressly set forth therein, but
+shall survive the sale, transfer and assignment of the Receivables to the Issuer
+and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
+
+SECTION 3.02 Repurchase upon Breach. The Seller, the Servicer, the Issuer, the
+Indenture Trustee and the Owner Trustee, as the case may be, shall inform the
+other parties to this Agreement and the Indenture Trustee promptly, in writing,
+upon the discovery of any breach of the Seller’s representations and warranties
+pursuant to Section 3.01 that materially and adversely affects the interests of
+the Securityholders in any Receivable; provided, that the delivery of the
+Servicer’s Certificate pursuant to Section 4.08 shall be deemed to constitute
+prompt written notice by the Servicer of such breach. If the breach materially
+and adversely affects the interests of the Securityholders in such Receivable,
+then the Seller shall either (a) correct or cure such breach or (b) repurchase
+such Receivable from the Issuer, in either case on or before the Distribution
+Date following the end of the Collection Period which includes the 60th day (or,
+if the Seller elects, an earlier date) after the date that the Seller became
+aware or was notified of such breach. Any such breach or failure will be deemed
+not to have a material and adverse effect on the interests of Securityholders if
+such breach or failure does not affect the ability of the Issuer to receive and
+retain timely payment in full on such Receivable. In consideration of the
+purchase of the Receivables, the Seller shall remit (or cause to be remitted)
+the Repurchase Payment in the manner specified in Section 5.05. Upon payment of
+such Repurchase Payment by the Seller, the Issuer and the Indenture Trustee
+shall release and shall execute and deliver such instruments of release,
+transfer or assignment, in each case without recourse or representation, as
+shall be reasonably requested of it to vest in the Seller or its designee any
+Receivable and any related Purchased Assets repurchased pursuant hereto. The
+Indenture Trustee and the Owner Trustee shall not be deemed to have knowledge of
+any breach of the Seller’s representations and warranties unless an Authorized
+Officer has actual knowledge thereof or has received written notice thereof in
+accordance with the Basic Documents. Neither the Owner Trustee nor the Indenture
+Trustee will have any duty to conduct an affirmative investigation as to the
+occurrence of any condition requiring the repurchase of any Receivable pursuant
+to this Section 3.02. The sole remedy of the Issuer, the Indenture Trustee (by
+operation
+
+ 
+
+   25    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+of the assignment of the Issuer’s rights hereunder pursuant to the Indenture),
+or any Securityholder with respect to a breach with a material adverse effect on
+the interests of Securityholders caused by the Seller’s representations and
+warranties pursuant to Section 3.01, shall be to require the Seller to
+repurchase Receivables pursuant to this Section 3.02.
+
+SECTION 3.03 Duties of Servicer as Custodian.
+
+(a) Safekeeping. The Servicer, in its capacity as custodian, shall hold the
+Receivable Files for the benefit of the Issuer and the Indenture Trustee, as
+pledgee of the Issuer. In performing its duties as custodian, the Servicer shall
+act in accordance with its Customary Servicing Practices. The Servicer will
+promptly report to the Issuer and the Indenture Trustee any failure on its part
+to hold a material portion of the Receivable Files and maintain its accounts,
+records and computer systems as herein provided in all material respects and
+promptly take appropriate action to remedy any such material failure. The
+Servicer may, in accordance with its Customary Servicing Practices: (i) maintain
+all or a portion of the Receivable Files in electronic form and (ii) maintain
+custody of all or any portion of the Receivable Files with one or more of its
+agents or designees. Nothing in this Section 3.03 shall affect the obligation of
+the Servicer to observe any applicable law prohibiting disclosure of information
+regarding the Obligors and the failure of the Servicer to provide access to
+information as a result of such obligation shall not constitute a breach of this
+Section 3.03.
+
+(b) Maintenance of and Access to Records. The Servicer shall maintain each
+Receivable File in the United States (it being understood that the Receivable
+Files, or any part thereof, may be maintained at the offices of any Person to
+whom the Servicer has delegated responsibilities in accordance with
+Section 4.12). The Servicer shall make available to the Issuer and the Indenture
+Trustee or their respective duly authorized representatives, attorneys or
+auditors the Receivable Files and the related accounts, records and computer
+systems maintained by the Servicer at such times during normal business hours
+upon reasonable prior written notice as the Issuer or the Indenture Trustee
+shall instruct. The Servicer shall permit the Issuer, the Indenture Trustee and
+their respective agents at any time during normal business hours upon reasonable
+prior written notice to inspect, audit and make copies of and abstracts from the
+Servicer’s records regarding any Receivable.
+
+(c) Release of Receivable Files. Upon the occurrence and during the continuation
+of a Servicer Default or to the extent necessary for the Indenture Trustee to
+comply with its obligations under the Basic Documents, the Servicer shall, upon
+instruction from the Indenture Trustee, release any Receivable File to the
+Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s
+designee, as the case may be, at such place or places as the Indenture Trustee
+may designate, as soon as commercially practicable. Any document so released
+will be handled by the Indenture Trustee with due care and returned to the
+Servicer for safekeeping as soon as the Indenture Trustee or its agent or
+designee, as the case may be, has no further need therefor.
+
+ 
+
+   26    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 3.04 Instructions; Authority To Act. The Servicer shall be deemed to
+have received proper instructions with respect to the Receivable Files upon its
+receipt of written instructions signed by an Authorized Officer of the Issuer or
+the Indenture Trustee.
+
+SECTION 3.05 Custodian’s Indemnification. The Servicer, as custodian, shall
+indemnify the Issuer, the Owner Trustee and the Indenture Trustee for any and
+all liabilities, obligations, losses, compensatory damages, payments, costs or
+expenses of any kind whatsoever (including reasonable attorneys’ fees and
+expenses) that may be imposed on, incurred by or asserted against any of them as
+the result of any improper act or omission in any way relating to the
+maintenance and custody by the Servicer as custodian of the Receivable Files
+including any legal fees and expenses incurred in connection with the
+enforcement by any such Person of any indemnification or other obligation of the
+Servicer as custodian; provided, however, that the Servicer shall not be liable
+to the Owner Trustee for any portion of any such amount resulting from the
+willful misfeasance, bad faith or negligence of the Owner Trustee, and the
+Servicer shall not be liable to the Indenture Trustee for any portion of any
+such amount resulting from the willful misfeasance, bad faith or negligence of
+the Indenture Trustee. Any indemnity claimed under this Section 3.05 shall be
+subject to the procedures described in Section 7.02.
+
+SECTION 3.06 Effective Period and Termination. The Servicer’s appointment as
+custodian shall become effective as of the Cut-off Date, and shall continue in
+full force and effect until terminated pursuant to this Section 3.06. If NMAC
+resigns as Servicer in accordance with the provisions of this Agreement or if
+all of the rights and obligations of any Servicer shall have been terminated
+under Section 8.01, the appointment of NMAC as custodian may be terminated by
+the Indenture Trustee or by the Holders of Notes evidencing not less than 25% of
+the Outstanding Amount of the Notes or, with the consent of Holders of the Notes
+evidencing not less than 25% of the Outstanding Amount of the Notes, by the
+Owner Trustee or by the Certificateholders evidencing not less than 25% of the
+Certificate Balance, in the same manner as the Indenture Trustee or such Holders
+may terminate the rights and obligations of the Servicer under Section 8.01. As
+soon as practicable after any termination of such appointment, the Servicer
+shall deliver the Receivable Files and the related accounts and records
+maintained by the Servicer to the Relevant Trustee or the agent thereof at such
+place or places as the Relevant Trustee may reasonably designate.
+
+ARTICLE IV.
+
+Administration and Servicing of Receivables
+
+SECTION 4.01 Duties of Servicer.
+
+(a) The Servicer is hereby appointed by the Issuer and authorized to act as
+agent for the Issuer and, in such capacity, shall manage, service, administer
+and make collections on the Receivables in accordance with its Customary
+Servicing Practices, using that degree of skill and attention that the Servicer
+exercises with respect to all comparable receivables that it services for itself
+or others. There are no requirements under the Basic Documents to maintain a
+back-up servicer. The Servicer and its Affiliates may engage in any marketing
+practice or promotion or any sale of any products, goods or services to Obligors
+with respect to the Receivables so long as such
+
+ 
+
+   27    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+practices, promotions or sales are offered to obligors of comparable motor
+vehicle receivables serviced by the Servicer for itself and others, whether or
+not such practices, promotions or sales might result in a decrease in the
+aggregate amount of payments on the Receivables, prepayments or faster or slower
+timing of the payment of the Receivables. Subject to Section 4.05, the Servicer
+may grant extensions, rebates, deferrals, amendments, modifications or
+adjustments with respect to any Receivable in accordance with its Customary
+Servicing Practices; provided, however, that if the Servicer (i) extends the
+date for final payment by the Obligor of any Receivable beyond the last day of
+the Collection Period preceding the latest Final Scheduled Distribution Date of
+any Notes issued under the Indenture or (ii) reduces the APR or Principal
+Balance with respect to any Receivable other than as required by applicable law
+(including, without limitation, by the Servicemembers Civil Relief Act) or court
+order, it will promptly purchase such Receivable in the manner provided in
+Section 4.06 if such change in the Receivable would materially and adversely
+affect the interests of the Securityholders in such Receivable. The Servicer may
+in its discretion waive any late payment charge or any other fees that may be
+collected in the ordinary course of servicing a Receivable.
+
+(b) The Servicer’s duties shall include collection and posting of all payments,
+responding to inquiries of Obligors on the Receivables, investigating
+delinquencies, sending remittance advises to Obligors, reporting tax information
+to Obligors, accounting for collections and furnishing monthly and annual
+statements to the Owner Trustee and the Indenture Trustee with respect to
+distributions. The Servicer is not required under the Basic Documents to make
+any disbursements via wire transfer or otherwise on behalf of an Obligor. There
+are no requirements under the Receivables or the Basic Documents for funds to
+be, and funds shall not be, held in trust for an Obligor. The Servicer shall not
+make any payments or distributions on behalf of an Obligor.
+
+(c) Without limiting the generality of the foregoing, the Servicer is authorized
+and empowered to execute and deliver, on behalf of itself, the Trust, the Owner
+Trustee, the Indenture Trustee and the Securityholders or any of them, any and
+all instruments of satisfaction or cancellation, or partial or full release or
+discharge, and all other comparable instruments, with respect to the Receivables
+or to the Financed Vehicles securing the Receivables. If the Servicer shall
+commence a legal proceeding to enforce a Receivable (other than a Repurchased
+Receivable), the Issuer shall thereupon be deemed to have automatically
+assigned, solely for the purpose of collection, such Receivable to the Servicer.
+If in any enforcement suit or legal proceeding it shall be held that the
+Servicer may not enforce a Receivable on the ground that it shall not be a real
+party in interest or a holder entitled to enforce such Receivable, the Issuer
+shall, at the Servicer’s expense and direction, take steps to enforce the
+Receivable, including bringing suit in its name or the name of the Indenture
+Trustee or the Securityholders. The Issuer shall furnish the Servicer with any
+powers of attorney and other documents reasonably necessary or appropriate to
+enable the Servicer to carry out its servicing and administrative duties
+hereunder.
+
+ 
+
+   28    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(d) Nothing in any section of this Agreement shall be construed to prevent the
+Servicer from implementing new programs, whether on an intermediate, pilot or
+permanent basis, or on a regional or nationwide basis, or from modifying its
+standards, policies and procedures as long as, in each case, such programs or
+modifications would be consistent with its Customary Servicing Practices, even
+if such practices, promotions or sales might result in a decrease in the
+aggregate amount of payments on the Receivables, prepaying or faster or slower
+timing of the payment of the Receivables.
+
+(e) Notwithstanding anything in this Agreement to the contrary, the Servicer may
+refinance any Receivable and deposit the full Principal Balance of such
+Receivable into the Collection Account. The receivable created by such
+refinancing shall not be property of the Issuer. The Servicer and its Affiliates
+may also sell insurance or debt cancellation products, including products which
+result in the cancellation of some or all of the amount of a Receivable upon the
+death or disability of the Obligor or any casualty with respect to the Financed
+Vehicle.
+
+SECTION 4.02 Collection of Receivable Payments. The Servicer shall make
+reasonable efforts to collect all payments called for under the terms and
+provisions of the Receivables as and when the same shall become due in
+accordance with its Customary Servicing Practices. Payments on the Receivables
+made in accordance with the related documentation for such Receivables, shall be
+posted to the Servicer’s Obligor records in accordance with the Servicer’s
+Customary Servicing Practices. Such payments shall be allocated to principal,
+interest or other items in accordance with the related documentation for such
+Receivables
+
+SECTION 4.03 Realization upon Receivables. On behalf of the Issuer, the Servicer
+shall use commercially reasonable efforts, consistent with its Customary
+Servicing Practices, to repossess or otherwise convert the ownership of the
+Financed Vehicle securing any Receivable as to which the Servicer shall have
+determined eventual payment in full is unlikely, unless it determines in its
+sole discretion that repossession will not increase the Net Liquidation Proceeds
+by an amount greater than the expense of such repossession or that the proceeds
+ultimately recoverable with respect to such Receivable would be increased by
+forbearance. The Servicer shall follow such Customary Servicing Practices and
+procedures as it shall deem necessary or advisable, which may include reasonable
+efforts to realize upon any Dealer Recourse and selling the related Financed
+Vehicle at public or private sale. The foregoing shall be subject to the
+provision that, in any case in which the Financed Vehicle shall have suffered
+damage, the Servicer shall not be required to expend funds in connection with
+the repair or the repossession of such Financed Vehicle unless it shall
+determine in its discretion that such repair and/or repossession will increase
+the Net Liquidation Proceeds.
+
+SECTION 4.04 Maintenance of Security Interests in Financed Vehicles. The
+Servicer shall, in accordance with its Customary Servicing Practices, take such
+steps as are necessary to maintain perfection of the security interest created
+by each Receivable in the related Financed Vehicle. The Servicer is hereby
+authorized to take such steps as are necessary to re-perfect such security
+interest on behalf of the Issuer and the Indenture Trustee in the event of the
+relocation of a Financed Vehicle or for any other reason. If the assignment of a
+Receivable to the Issuer is insufficient, without a notation on the related
+Financed Vehicle’s Certificate of Title, to grant to the Issuer a first priority
+perfected security interest in the related Financed Vehicle, the Servicer hereby
+agrees to serve as the agent of the Issuer for the purpose of perfecting the
+security interest of the Issuer in such Financed Vehicle and agrees that the
+Servicer’s listing as the secured party
+
+ 
+
+   29    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+on the Certificate of Title is in this capacity as agent of the Issuer. The
+provisions set forth in this Section 4.04 are the sole requirements under the
+Basic Documents with respect to the maintenance of collateral or security on the
+Receivables. It is understood that the Financed Vehicles are the collateral and
+security for the Receivables, but that the Certificate of Title with respect to
+a Financed Vehicle does not constitute collateral and merely evidences such
+security interest.
+
+SECTION 4.05 Covenants of Servicer. Unless required by law or court order, the
+Servicer shall not release the Financed Vehicle securing any Receivable from the
+security interest granted by such Receivable in whole or in part except (i) in
+the event of payment in full by or on behalf of the Obligor thereunder or
+payment in full less a deficiency which the Servicer would not attempt to
+collect in accordance with its Customary Servicing Practices, (ii) in connection
+with repossession or (iii) except as may be required by an insurer in order to
+receive proceeds from any insurance policy covering such Financed Vehicle.
+
+SECTION 4.06 Purchase of Receivables upon Breach. The Servicer or the Issuer
+shall inform the other party and the Indenture Trustee promptly, in writing,
+upon the discovery of any breach by the Servicer of its obligations under
+Section 4.01(a) or 4.05 that would materially and adversely affect any
+Receivable. If the breach materially and adversely affects the interests of the
+Securityholders in such Receivable, then the Servicer shall either (a) correct
+or cure such breach or (b) repurchase such Receivable from the Issuer, in either
+case on or before the Distribution Date following the end of the Collection
+Period which includes the 60th day (or, if the Servicer elects, an earlier date)
+after the date that the Servicer became aware or was notified of such breach.
+Any such breach or failure will be deemed not to have a material and adverse
+effect if such breach or failure does not affect the ability of the Issuer to
+receive and retain timely payment in full on such Receivable. In consideration
+of such Receivable, the Servicer shall remit the Repurchase Payment in the
+manner specified in Section 5.05. Upon payment of such Repurchase Payment by the
+Servicer, the Issuer and the Indenture Trustee shall release and shall execute
+and deliver such instruments of release, transfer or assignment, in each case
+without recourse or representation, as shall be reasonably requested of it to
+vest in the Servicer or its designee any Receivable and any related Purchased
+Assets repurchased pursuant hereto. Neither the Owner Trustee nor the Indenture
+Trustee will have any duty to conduct an affirmative investigation as to the
+occurrence of any condition requiring the repurchase of any Receivable pursuant
+to this Section 4.06. The sole remedy of the Indenture Trustee, the Owner
+Trustee, the Issuer, the Securityholders against the Servicer with respect to a
+breach by the Servicer of its obligations under Sections 4.01(a) or 4.05 shall
+be to require the Servicer to purchase Receivables pursuant to this
+Section 4.06.
+
+SECTION 4.07 Servicing Fee and Expenses. As compensation for the performance of
+its obligations hereunder, the Servicer shall be entitled to receive on each
+Distribution Date the Base Servicing Fee and shall be entitled to retain all
+Supplemental Servicing Fees. The Servicer will also be entitled to receive
+investment earnings (net of investment losses and expenses) on funds on deposit
+in the Collection Account and the Reserve Account during each Collection Period.
+Except to the extent otherwise provided herein, the Servicer shall be required
+to pay all expenses incurred by it in connection with its activities under this
+Agreement (including fees and disbursements of independent accountants, taxes
+imposed on the Servicer, expenses incurred in connection with distributions and
+reports to Securityholders and all other fees and expenses not expressly stated
+under this Agreement to be for the account of the Securityholders).
+
+ 
+
+ 
+
+   30    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 4.08 Servicer’s Certificate. On or before each Determination Date, the
+Servicer shall deliver to the Owner Trustee, each Paying Agent and the Indenture
+Trustee, with a copy to each Rating Agency, a Servicer’s Certificate containing
+all information necessary to make the distributions pursuant to Sections 5.06,
+5.07 and 5.08 of this Agreement and Section 5.04(d) of the Indenture for the
+Collection Period preceding the date of such Servicer’s Certificate, all
+information necessary for the Owner Trustee to send statements to the
+Certificateholders and the Indenture Trustee to send statements to the
+Noteholders pursuant to the Trust Agreement or Indenture, as the case may be.
+Each of the Owner Trustee and the Indenture Trustee may conclusively rely on the
+information in any Servicer’s Certificate and shall have no duty to confirm or
+verify the contents thereof. At the sole option of the Servicer, each Servicer
+Certificate may be delivered in electronic or hard copy form.
+
+SECTION 4.09 Communication among Noteholders. A Noteholder (if the Notes are
+represented by Definitive Notes) or a Note Owner (if the Notes are represented
+by Book-Entry Notes) may send a request to the Seller at any time notifying the
+Seller that such Noteholder or Note Owner, as applicable, would like to
+communicate with other Noteholders or Note Owners, as applicable, with respect
+to an exercise of their rights under the terms of the Basic Documents. If the
+requesting party is not a Noteholder as reflected on the Note Register, the
+Seller may require that the requesting party provide Verification Documents.
+Each request must include (i) the name of the requesting Noteholder or Note
+Owner, and (ii) a description of the method by which other Noteholders or Note
+Owners, as applicable, may contact the requesting Noteholder or Note Owner. A
+Noteholder or Note Owner, as applicable, that delivers a request under this
+Section 4.09 will be deemed to have certified to the Issuer and the Servicer
+that its request to communicate with other Noteholders or Note Owners, as
+applicable, relates solely to a possible exercise of rights under this Indenture
+or the other Basic Documents, and will not be used for other purposes. In each
+monthly distribution report on Form 10-D under the Exchange Act with respect to
+the Issuer, the Seller shall include disclosure regarding any request that
+complies with the requirements of this Section 4.09 received during the related
+Collection Period from a Noteholder or Note Owner to communicate with other
+Noteholders or Note Owners, as applicable, related to the Noteholders or Note
+Owners exercising their rights under the terms of the Basic Documents. The
+disclosure in such Form 10-D regarding the request to communicate shall include
+(w) the name of the investor making the request, (x) the date the request was
+received, (y) a statement to the effect that the Issuer has received a request
+from such Noteholder or Note Owner, as applicable, stating that such Noteholder
+or Note Owner, as applicable, is interested in communicating with other
+Noteholders or Note Owners, as applicable, with regard to the possible exercise
+of rights under the Basic Documents, and (z) a description of the method other
+Noteholders or Note Owners, as applicable, may use to contact the requesting
+Noteholder or Note Owner.
+
+SECTION 4.10 Annual Statement as to Compliance; Notice of Default.
+
+(a) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee and
+each Rating Agency, within 90 days after the end of each fiscal year of the
+Servicer, beginning June 30, 2021, an Officer’s Certificate with respect to the
+prior fiscal year of the Servicer (or with respect to the initial Officer’s
+Certificate, the period from the date of the initial issuance of the Notes to
+March 31, 2021), providing the information required under Item 1123 of
+Regulation AB.
+
+ 
+
+   31    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) The Servicer shall deliver to the Issuer, the Owner Trustee, the Indenture
+Trustee and each Rating Agency, promptly after having obtained knowledge
+thereof, written notice (in the form of an Officer’s Certificate) of any event
+that with the giving of notice or lapse of time, or both, would become a
+Servicer Default under Section 8.01. Except to the extent set forth in this
+Section 4.10(b) of this Agreement and Section 5.01 of the Indenture, the Basic
+Documents do not require any policies or procedures to monitor any performance
+or other triggers and Events of Default.
+
+(c) The Servicer will deliver to the Issuer, within 90 days after the end of
+each fiscal year of the Servicer, beginning June 30, 2021, a report regarding
+the Servicer’s assessment of compliance with the Servicing Criteria during the
+immediately preceding fiscal year, including disclosure of any material instance
+of non-compliance identified by the Servicer, as required under paragraph (b) of
+Rule 13a-18 and Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
+
+(d) The Indenture Trustee will deliver to the Issuer, on or before June 15th of
+each calendar year, commencing in 2021, a report regarding the Indenture
+Trustee’s assessment of compliance with the applicable Servicing Criteria during
+the immediately preceding fiscal year, including disclosure of any material
+instance of non-compliance identified by the Indenture Trustee, as required
+under paragraph (b) of Rule 13a-18 and Rule 15d-18 of the Exchange Act and Item
+1122 of Regulation AB.
+
+SECTION 4.11 Annual Registered Public Accounting Firm Attestation.
+
+(a) On or before the 90th day following the end of each fiscal year, beginning
+with the fiscal year ending March 31, 2021, the Servicer shall cause a firm of
+independent registered public accountants (who may also render other services to
+the Servicer, the Seller or their respective Affiliates) to furnish to the
+Issuer, with a copy to the Indenture Trustee, the Servicer and the Seller, each
+attestation report on assessments of compliance with the Servicing Criteria with
+respect to the Servicer or any Affiliate thereof during the related fiscal year
+delivered by such accountants pursuant to paragraph (c) of Rule 13a-18 or Rule
+15d-18 of the Exchange Act and Item 1122 of Regulation AB. The certification
+required by this paragraph may be replaced by any similar certification using
+other procedures or attestation standards which are now or in the future in use
+by servicers of comparable assets, or which otherwise comply with any rule,
+regulation, “no action” letter or similar guidance promulgated by the
+Commission.
+
+The Servicer, however, shall not be obligated to add as an addressee or reliance
+party with respect to any report described above any Person who does not comply
+with or agree to the required procedures of such firm of independent certified
+public accountants, including but not limited to execution of engagement letters
+or access letters regarding such reports.
+
+ 
+
+   32    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) On or before June 15th of each calendar year, commencing in 2021, the
+Indenture Trustee shall cause a firm of independent registered public
+accountants (who may also render other services to the Indenture Trustee) to
+furnish to the Issuer, with a copy to the Servicer and the Seller, an
+attestation report on assessment of compliance with the applicable Servicing
+Criteria with respect to the Indenture Trustee during the immediately preceding
+fiscal year delivered by such accountants pursuant to paragraph (c) of Rule
+13a-18 or Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB. The
+certification required by this paragraph may be replaced by any similar
+certification using other procedures or attestation standards which are now or
+in the future in use by servicers of comparable assets, or which otherwise
+comply with any rule, regulation, “no action” letter or similar guidance
+promulgated by the Commission.
+
+SECTION 4.12 Appointment of Subservicer. So long as NMAC acts as the Servicer,
+the Servicer may at any time without notice or consent delegate (a) any or all
+of its duties under this Agreement to any of its Affiliates or (b) specific
+duties as servicer under this Agreement through subcontractors; provided,
+however, that no such delegation or subcontracting shall relieve the Servicer of
+its responsibilities with respect to such duties as to which the Servicer shall
+remain primarily responsible with respect thereto. For any servicing activities
+delegated to third parties in accordance with this Section 4.12, the Servicer
+shall follow such policies and procedures to monitor the performance of such
+third parties and compliance with such servicing activities as the Servicer
+follows with respect to comparable motor vehicle receivables serviced by the
+Servicer for its own account.
+
+SECTION 4.13 Fidelity Bond. The Servicer shall not be required to maintain a
+fidelity bond or error and omissions policy.
+
+SECTION 4.14 Administrator Compensation. The Servicer shall pay the
+Administrative Agent compensation pursuant to Section 3 of the Administration
+Agreement.
+
+ARTICLE V.
+
+Distributions; Accounts;
+
+Statements to the Certificateholders and the Noteholders
+
+SECTION 5.01 Establishment of Accounts.
+
+(a) The Servicer shall cause to be established the following accounts:
+
+(i) For the benefit of the Securityholders in the name of the Indenture Trustee,
+an account (the “Collection Account”), which shall be an Eligible Account
+initially established with the Indenture Trustee.
+
+(ii) For the benefit of the Securityholders in the name of the Indenture
+Trustee, an account (the “Reserve Account”), which shall be an Eligible Account
+initially established with the Indenture Trustee.
+
+ 
+
+   33    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) All amounts held in the Collection Account and the Reserve Account
+(collectively, the “Accounts”) shall, to the extent permitted by applicable
+laws, rules and regulations and as directed by the Servicer, be invested by the
+Indenture Trustee in Eligible Investments in accordance with Section 8.03 of the
+Indenture. All such Eligible Investments shall mature not later than the
+Business Day preceding the next Distribution Date, in such manner that such
+amounts invested shall be available to make the required distributions on the
+Distribution Date. The Servicer will not direct the Indenture Trustee, and the
+Issuer shall cause the Servicer not to make any investment of any funds or to
+sell any investment held in the Collection Account unless the security interest
+granted and perfected in such account will continue to be perfected in such
+investment or the proceeds of such sale, in either case without any further
+action by any Person, and, in connection with any direction to the Indenture
+Trustee to make any such investment or sale, if requested by the Indenture
+Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of
+Counsel, acceptable to the Indenture Trustee, to such effect.
+
+(c) If either (i) the Servicer, in its sole discretion and for any reason,
+notifies the Indenture Trustee and the Owner Trustee in writing that the
+Accounts should be moved or (ii) the Indenture Trustee or the Owner Trustee, as
+applicable, notifies the Servicer that the short-term unsecured debt obligations
+of the Indenture Trustee or the Owner Trustee, as applicable, no longer have the
+Required Deposit Rating, then, in each case, the Servicer shall, within ten
+Business Days after receipt of the notice described in clause (i) or (ii), as
+applicable, cause the Accounts (x) to be moved to segregated trust accounts in a
+bank or trust company selected by the Servicer, the short-term unsecured debt
+obligations of which shall have the Required Deposit Rating, or (y) to be moved
+to the trust department of the Indenture Trustee or the Owner Trustee, as
+applicable. The Indenture Trustee or the Owner Trustee, as applicable, shall
+assist the Servicer with the moving of Accounts described in the preceding
+sentence.
+
+(d) Earnings on investment of funds in the Collection Account and the Reserve
+Account shall be paid to the Servicer as additional servicing compensation, and
+any losses and investment expenses shall be charged against the funds on deposit
+in the Collection Account or the Reserve Account, as applicable.
+
+(e) Except for the Collection Account and the Reserve Account, there are no
+accounts required to be maintained under the Basic Documents.
+
+(f) The Indenture Trustee shall transfer all amounts remaining on deposit in the
+Collection Account on the Distribution Date on which the Notes of all Classes
+have been paid in full (or when substantially all of the Collateral is otherwise
+released from the lien of the Indenture) to the Designated Account, and take all
+necessary or appropriate actions to transfer all of its right, title and
+interest in the Collection Account, all funds or investments held therein and
+all proceeds thereof, whether or not on behalf of the Securityholders, to the
+Owner Trustee for the benefit of the Certificateholders, subject to the
+limitations set forth in the Indenture with respect to amounts held for payment
+to Noteholders that do not promptly deliver a Note for payment on such
+Distribution Date. After the transfer to the Designated Account described in the
+immediately preceding sentence, references in this Agreement to “Collection
+Account” shall be deemed to be references to the “Designated Account.”
+
+ 
+
+   34    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(g) With respect to the Accounts and all property held therein, the Issuer
+agrees, by its acceptance hereof that, on the terms and conditions set forth in
+the Indenture, for so long as Notes of any Class remain outstanding, the
+Indenture Trustee shall possess all right, title and interest therein (excluding
+interest or investment income thereon payable to the Servicer or the Seller, as
+the case may be), and the Accounts shall be under the sole dominion and control
+of the Indenture Trustee for the benefit of the Noteholders and the
+Certificateholders, as the case may be, as set forth in the Indenture. The
+parties hereto agree that the Servicer shall have the power, revocable by the
+Indenture Trustee or by the Issuer with the consent of the Indenture Trustee, to
+instruct the Indenture Trustee to make withdrawals and payments from the
+Collection Account for the purpose of permitting the Servicer, Indenture
+Trustee, Issuer or the Owner Trustee to carry out its respective duties
+hereunder or under the Indenture or the Trust Agreement, as the case may be.
+
+Notwithstanding the foregoing, the Servicer shall be entitled to withhold, or to
+be reimbursed from amounts otherwise payable into or on deposit in the
+Collection Account, as the case may be, amounts previously deposited in the
+Collection Account but later determined to have resulted from mistaken deposits
+or posting.
+
+(h) With respect to the Account Property, the parties hereto agree that:
+
+(i) any Account Property that consists of uninvested funds shall be held solely
+in Eligible Accounts and, except as otherwise provided herein, each such
+Eligible Account shall be subject to the exclusive custody and control of the
+Indenture Trustee, and, except as otherwise provided in the Basic Documents, the
+Indenture Trustee or its designee shall have sole signature authority with
+respect thereto;
+
+(ii) any Account Property that constitutes Physical Property shall be delivered
+to the Indenture Trustee or its designee, in accordance with paragraph (a) of
+the definition of “Delivery” and shall be held, pending maturity or disposition,
+solely by the Indenture Trustee or any such designee;
+
+(iii) any Account Property that is an “uncertificated security” under Article 8
+of the UCC and that is not governed by clause (iv) below shall be delivered to
+the Indenture Trustee or its designee in accordance with paragraph (c) of the
+definition of “Delivery” and shall be maintained by the Indenture Trustee or
+such designee, pending maturity or disposition, through continued registration
+of the Indenture Trustee’s (or its designee’s) ownership of such security on the
+books of the issuer thereof;
+
+(iv) any Account Property that is an uncertificated security that is a
+“book-entry security” (as such term is defined in Federal Reserve Bank Operating
+Circular No. 7) held in a securities account at a Federal Reserve Bank and
+eligible for transfer through the Fedwire® Securities Service operated by the
+Federal Reserve System pursuant to Federal book-entry regulations shall be
+delivered in accordance with paragraph (b) of the definition of “Delivery” and
+shall be maintained by the
+
+ 
+
+   35    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Indenture Trustee or its designee or a securities intermediary (as such term is
+defined in Section 8-102(a)(14) of the UCC) acting solely for the Indenture
+Trustee or such designee, pending maturity or disposition, through continued
+book-entry registration of such Account Property as described in such paragraph;
+and
+
+(v) to the extent any Account Property is credited to a securities account, the
+account agreement establishing such securities account shall provide that the
+account agreement is governed by the law of the State of New York and that the
+law of the State of New York shall govern all issues specified in Article 2(1)
+of the Hague Securities Convention.
+
+(i) The Indenture Trustee, to the extent it is acting in the capacity of
+securities intermediary with respect to Account Property, covenants and agrees
+that:
+
+(i) it is a “securities intermediary,” as such term is defined in
+Section 8-102(a)(14)(ii) of the relevant UCC;
+
+(ii) pursuant to Section 8-110(e)(1) of the relevant UCC for purposes of Article
+8 of the UCC, the jurisdiction of the Indenture Trustee as “securities
+intermediary” is the State of New York; and
+
+(iii) it has, at the time of entry into this Agreement, one or more offices in
+the United States of America engaged in a business or other regular activity of
+maintaining securities accounts.
+
+To the extent that there are any other agreements with the Indenture Trustee
+governing the Accounts, the parties agree that each and every such agreement is
+hereby amended to provide that, with respect to the Accounts, the law applicable
+to all issues specified in Article 2(1) of the Hague Securities Convention shall
+be the laws of the State of New York.
+
+SECTION 5.02 Collections. Except as otherwise provided in this Agreement, the
+Servicer shall remit to the Collection Account all Collections (other than
+payments on Repurchased Receivables) not later than the second Business Day
+after identification thereof; provided, however, that if the Monthly Remittance
+Condition is satisfied, then the Servicer shall not be required to deposit into
+the Collection Account an amount equal to the Collections received during the
+related Collection Period until the Business Day before each Distribution Date.
+The “Monthly Remittance Condition” shall be deemed to be satisfied if (i) NMAC
+is the Servicer and (ii) NMAC’s short-term unsecured debt obligations are rated
+at least “P-1” by Moody’s and at least “A-1” by S&P (so long as Moody’s and S&P
+are Rating Agencies). Commencing with the first day of the first Collection
+Period that begins at least two Business Days after the day on which the Monthly
+Remittance Condition is not satisfied, all Collections then held by the Servicer
+shall be immediately deposited into the Collection Account and all future
+Collections on or in respect of the Receivables (other than payments on
+Repurchased Receivables) and all Net Liquidation Proceeds shall be remitted by
+the Servicer to the Collection Account not later than the second Business Day
+after identification thereof. Notwithstanding the foregoing, the Servicer may
+remit Collections to the Collection Account on any other alternate remittance
+schedule (but not later than the related Distribution Date) if the Rating Agency
+Condition is satisfied with respect to such alternate remittance schedule.
+Pending deposit into the Collection Account, Collections may be commingled and
+used by the Servicer at its own risk and are not required to be segregated from
+its own funds.
+
+ 
+
+   36    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 5.03 Application of Collections. All Collections for the related
+Collection Period with respect to each Receivable shall be posted to the
+Servicer’s Obligor records in accordance with the Servicer’s Customary Servicing
+Practices.
+
+SECTION 5.04 [Reserved]
+
+SECTION 5.05 Additional Deposits.
+
+(a) The following additional deposits shall be made to the Collection Account:
+(i) the Seller shall remit the aggregate Repurchase Payments with respect to
+Repurchased Receivables pursuant to Section 3.02; (ii) the Servicer shall remit
+(A) the aggregate Repurchase Payments with respect to Repurchased Receivables
+pursuant to Section 4.06 and (B) the cash amount required upon any optional
+purchase of the Receivables by the Servicer, or any Successor Servicer, pursuant
+to Section 9.01; and (iii) the Indenture Trustee shall transfer the amounts
+described in Sections 5.06 and 5.07 from the Reserve Account to the Collection
+Account pursuant to Section 5.07.
+
+(b) All deposits required to be made pursuant to Section 5.05(a) by the Seller
+or the Servicer, as the case may be, may be made in the form of a single deposit
+and shall be made in immediately available funds, no later than 5:00 P.M., New
+York City time, on the Business Day immediately preceding the related
+Distribution Date. At the direction of the Servicer, the Relevant Trustee shall
+invest such amounts in Eligible Investments in accordance with Section 5.01(b).
+
+(c) So long as NMAC is the Servicer, NMAC (as Servicer or in any other capacity)
+may make the remittances pursuant to Sections 5.02 and 5.05(a) above net of
+amounts to be distributed to the Servicer or its Affiliates pursuant to
+Section 5.06 and may pay the Optional Purchase Price pursuant to Section 9.01(a)
+net of amounts to be distributed to the Servicer or its Affiliates. Accounts
+between the Servicer and such Affiliates will be adjusted accordingly.
+Nonetheless, the Servicer shall account for all of the above described
+remittances and distributions (except for the Supplemental Servicing Fee to the
+extent that the Servicer is entitled to retain such amounts) in the Servicer’s
+Certificate as if the amounts were deposited and/or transferred separately.
+
+SECTION 5.06 Payments and Distributions.
+
+(a) Prior to any acceleration of the Notes pursuant to Section 5.02 of the
+Indenture, on each Distribution Date, the Relevant Trustee (based on information
+contained in, and as directed by, the Servicer’s Certificate delivered on or
+before the related Determination Date) shall make the following deposits and
+distributions, to the extent of Available Amounts on deposit in the Collection
+Account for such Distribution Date and with respect to the related Collection
+Period, in the following order of priority:
+
+ 
+
+   37    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(i) to the Servicer, the Base Servicing Fee and any unpaid Base Servicing Fees
+from one or more prior Collection Periods;
+
+(ii) on a pro rata basis (based on the amounts distributable pursuant to this
+clause to each Class of Noteholders), to the Class A-1 Noteholders, the
+Noteholders’ Interest Distributable Amount for such Class, to the Class A-2
+Noteholders, the Noteholders’ Interest Distributable Amount for such Class, to
+the Class A-3 Noteholders, the Noteholders’ Interest Distributable Amount for
+such Class, and to the Class A-4 Noteholders, the Noteholders’ Interest
+Distributable Amount for such Class, such amounts to be paid from any remaining
+Available Amounts;
+
+(iii) to the Class A-1 Noteholders until the principal amount of the Class A-1
+Notes is reduced to zero, then to the Class A-2 Noteholders, until the principal
+amount of the Class A-2 Notes is reduced to zero, then to the Class A-3
+Noteholders, until the principal amount of the Class A-3 Notes is reduced to
+zero, and then to the Class A-4 Noteholders, until the principal amount of the
+Class A-4 Notes is reduced to zero, an amount equal to the Noteholders’
+Principal Distributable Amount for such Distribution Date, such amounts to be
+paid from any remaining Available Amounts;
+
+(iv) to the Reserve Account, the amount, if any, necessary to increase the
+balance of funds therein to the Specified Reserve Account Balance with respect
+to such Distribution Date, such amounts to be paid from any remaining Available
+Amounts;
+
+(v) to the Indenture Trustee, any accrued and unpaid fees, expenses and
+indemnity payments due pursuant to the Indenture, but only to the extent that
+such fees, expenses or indemnity payments have not been paid by the
+Administrator and have been outstanding for at least sixty (60) days, such
+amounts to be paid from any remaining Available Amounts;
+
+(vi) to the Owner Trustee, any accrued and unpaid fees, expenses and indemnity
+payments due pursuant to the Trust Agreement, but only to the extent that such
+fees, expenses or indemnity payments have not been paid by the Administrator and
+have been outstanding for at least sixty (60) days, such amounts to be paid from
+any remaining Available Amounts;
+
+(vii) to the Asset Representations Reviewer, any accrued and unpaid fees,
+expenses and indemnity payments due pursuant to the Asset Representations Review
+Agreement, but only to the extent that such fees, expenses or indemnity payments
+have not been paid by the Sponsor and have been outstanding for at least sixty
+(60) days, such amounts to be paid from any remaining Available Amounts; and
+
+(viii) any remaining Available Amounts to the Designated Account for
+distribution to the Certificateholders.
+
+ 
+
+   38    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) Notwithstanding any other provision of Section 5.06(a), following the
+occurrence and during the continuation of an Event of Default which has resulted
+in an acceleration of the Notes and unless and until such acceleration has been
+rescinded, on each Distribution Date, the Indenture Trustee shall apply all
+amounts on deposit in the Collection Account pursuant to Section 5.04(b) of the
+Indenture.
+
+(c) Notwithstanding the provisions of Section 5.06(b) of this Agreement and
+Section 5.04(b) of the Indenture, after the occurrence of an Event of Default
+that results in the acceleration of any Notes, on and after the date on which
+such acceleration has been rescinded, on each Distribution Date, the Relevant
+Trustee shall make payments and distributions from the Collection Account in
+accordance with Section 5.06(a).
+
+SECTION 5.07 Reserve Account.
+
+(a) On each Distribution Date, the Relevant Trustee will deposit Available
+Amounts into the Reserve Account pursuant to Section 5.06(c) as provided in the
+Servicer’s Certificate, until the amount on deposit therein equals the Specified
+Reserve Account Balance.
+
+(b) On each Distribution Date, to the extent that amounts on deposit in the
+Collection Account are insufficient to fully fund the payments and distributions
+described in clauses (i) through (iii) of Section 5.06(a) of this Agreement or
+clauses (1) through (5) of Section 5.04(b) of the Indenture, the Relevant
+Trustee will withdraw amounts then on deposit in the Reserve Account, up to the
+amounts of any such deficiencies, and deposit such amounts into the Collection
+Account for application pursuant to such clauses.
+
+(c) On each Distribution Date, as provided in the Servicer’s Certificate, the
+Relevant Trustee will release to the Certificateholders any amounts remaining on
+deposit in the Reserve Account in excess of the Specified Reserve Account
+Balance. Upon the payment in full of the Notes under the Indenture, as directed
+in writing by the Servicer, the Relevant Trustee will deposit into the
+Designated Account for distribution to the Certificateholders any amounts
+remaining on deposit in the Reserve Account and all rights to the Reserve
+Account and all other collateral registered or held therein shall vest in the
+Certificateholders. Upon any such distribution to the Certificateholders, the
+Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
+Relevant Trustee will have no further rights in, or claims to, such amounts.
+
+SECTION 5.08 Statements to Certificateholders and Noteholders.
+
+(a) On each Distribution Date, the Indenture Trustee shall include with each
+distribution to each Noteholder (or make available on its investor website) and
+the Owner Trustee (or, if the Indenture Trustee is the Paying Agent with respect
+to the Certificates, the Indenture Trustee) shall include with each distribution
+to each Certificateholder a statement (which statement may be the Servicer’s
+Certificate and which statement shall also be provided to the Servicer and the
+Servicer will thereafter deliver or otherwise make available a copy of such
+statement to each Rating Agency) based on information in the Servicer’s
+Certificate furnished pursuant to Section 4.08, setting forth for the Collection
+Period relating to such Distribution Date the following information:
+
+ 
+
+   39    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(i) the amount of the payment allocable to the principal amount of each Class of
+Notes;
+
+(ii) the amount of the payment allocable to interest on or with respect to each
+Class of Notes;
+
+(iii) the YSOC Amount;
+
+(iv) the Pool Balance as of the close of business on the last day of the related
+Collection Period;
+
+(v) the Adjusted Pool Balance as of the close of business on the last day of the
+related Collection Period;
+
+(vi) the amount of the Base Servicing Fee paid to the Servicer with respect to
+the related Collection Period, the amount of any unpaid Base Servicing Fees and
+the change in such amount from that of the prior Distribution Date and the
+amount of the Supplemental Servicing Fee, if any, paid to the Servicer with
+respect to the related Collection Period;
+
+(vii) the Noteholders’ Interest Carryover Shortfall and the Noteholders’
+Principal Carryover Shortfall, if any, with respect to each Class of Notes, and
+the change in such amounts from the preceding Distribution Date;
+
+(viii) the Outstanding Amount, the Note Factor and the Note Pool Factor with
+respect to each Class of Notes, and the Certificate Balance, the Certificate
+Factor and the Certificate Pool Factor with respect to the Certificates, in each
+case after giving effect to all payments in respect of principal on such
+Distribution Date;
+
+(ix) the balance of the Reserve Account on such Distribution Date, after giving
+effect to changes thereto on such Distribution Date and the amount of such
+changes;
+
+(x) the amount of defaults and net losses on the Receivables for the related
+Collection Period;
+
+(xi) the number of delinquencies on the Receivables as a percentage of the
+number of Receivables;
+
+(xii) the aggregate Principal Balance of 60-Day Delinquent Receivables for such
+Distribution Date;
+
+(xiii) the Delinquency Percentage;
+
+(xiv) the Delinquency Trigger;
+
+ 
+
+   40    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(xv) any material changes in practices with respect to charge-offs, collection
+and management of delinquent Receivables, and the effect of any grace period,
+re-aging, re-structuring, partial payments or other practices on delinquency and
+loss experience;
+
+(xvi) any material modifications, extensions or waivers to Receivables terms,
+fees, penalties or payments during the Collection Period; and
+
+(xvii) any material breaches of representations, warranties or covenants with
+respect to the Receivables.
+
+(b) Copies of such statements may be obtained by the Certificateholders or the
+Note Owners from the Owner Trustee or the Indenture Trustee, as the case may be,
+by a request in writing. The Owner Trustee or the Indenture Trustee, as the case
+may be, shall provide such copies promptly after such requests.
+
+(c) No disbursements shall be made directly by the Servicer to a Noteholder, and
+the Servicer shall not be required to maintain any investor record relating to
+the posting of disbursements or otherwise.
+
+ARTICLE VI.
+
+The Seller
+
+SECTION 6.01 Representations of Seller. The Seller makes the following
+representations on which the Issuer is deemed to have relied in acquiring the
+Receivables. The representations speak as of the Closing Date, and shall survive
+the sale of the Receivables to the Issuer and the pledge thereof to the
+Indenture Trustee pursuant to the Indenture.
+
+(a) Organization and Good Standing. The Seller is duly organized, validly
+existing and in good standing under the laws of the state of its formation, with
+power and authority to own its properties and to conduct its business as such
+properties are currently owned and such business is presently conducted, and had
+at all relevant times, and has, power, authority and legal right to acquire and
+own the Receivables.
+
+(b) Due Qualification. The Seller is duly qualified to do business as a foreign
+entity in good standing, and has obtained all necessary licenses and approvals
+in all jurisdictions in which the ownership or lease of property or the conduct
+of its business shall require such qualifications and where the failure to so
+qualify would have a material adverse effect on the ability of the Seller to
+perform its obligations under this Agreement.
+
+(c) Power and Authority. The Seller has the power and authority to execute and
+deliver this Agreement and to carry out its terms. The Seller has full power and
+authority to sell and assign the property to be sold and assigned to and
+deposited as part of the Owner Trust Estate, and has duly authorized such sale
+and assignment to the Issuer by all necessary action; and the execution,
+delivery and performance of this Agreement has been duly authorized by the
+Seller by all necessary action.
+
+ 
+
+   41    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(d) Valid Sale; Binding Obligations. This Agreement evidences a valid sale,
+transfer and assignment of the Receivables, enforceable against creditors of and
+purchasers from the Seller (other than a good faith purchaser for value in the
+ordinary course of business who takes actual possession of one or more
+Receivables); and this Agreement is a legal, valid and binding obligation of the
+Seller enforceable in accordance with its terms, subject to the effect of
+bankruptcy, insolvency, reorganization, moratorium or other similar laws
+affecting creditors’ rights generally and by general equitable principles,
+regardless of whether such enforceability shall be considered in a proceeding in
+equity or law.
+
+(e) No Violation. The consummation of the transactions contemplated by this
+Agreement and the fulfillment of the terms hereof do not conflict with, result
+in any breach of any of the terms and provisions of, nor constitute (with or
+without notice or lapse of time) a default under, the governing documents of the
+Seller, or any indenture, agreement or other instrument to which the Seller is a
+party or by which it shall be bound; nor result in the creation or imposition of
+any Lien upon any of its properties pursuant to the terms of any such indenture,
+agreement or other instrument (other than the Basic Documents); nor violate any
+law or, to the best of the Seller’s knowledge, any order, rule or regulation
+applicable to the Seller of any court or of any federal or state regulatory
+body, administrative agency or other governmental instrumentality having
+jurisdiction over the Seller or its properties; which breach, default, conflict,
+Lien or violation in any case would have a material adverse effect on the
+ability of the Seller to perform its obligations under this Agreement.
+
+(f) No Proceedings. There are no proceedings or investigations pending, or, to
+the Seller’s knowledge, threatened, before any court, regulatory body,
+administrative agency or other governmental instrumentality having jurisdiction
+over the Seller or its properties: (i) asserting the invalidity of this
+Agreement, the Trust Agreement, the Indenture, the Certificates or the Notes;
+(ii) seeking to prevent the issuance of the Certificates, or the Notes or the
+consummation of any of the transactions contemplated by this Agreement, the
+Trust Agreement, the Indenture; (iii) seeking any determination or ruling that
+would materially and adversely affect the performance by the Seller of its
+obligations under, or the validity or enforceability of, this Agreement, the
+Trust Agreement, the Indenture, the Certificates or the Notes; or (iv) relating
+to the Seller and that would adversely affect the federal or any state income
+tax attributes of the Issuer, the Certificates or the Notes.
+
+(g) Valid Assignment. The Receivables and the other Purchased Assets have been
+validly assigned by NMAC to the Seller pursuant to the Purchase Agreement and
+the Receivables and the other Transferred Assets have been validly assigned by
+the Seller to the Issuer pursuant to this Agreement.
+
+(h) Accuracy of Information. The information set forth in the Schedule of
+Receivables was true and correct in all material respects as of the opening of
+business on the Cut-off Date.
+
+ 
+
+   42    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(i) No Adverse Selection. No selection procedures believed to be adverse to the
+Securityholders were used to select the Receivables and other Purchased Assets.
+
+(j) Good Title. Immediately prior to the transfer and assignment herein
+contemplated, the Seller had good and marketable title to the Receivables and
+other Transferred Assets free and clear of all Liens, and immediately upon the
+transfer thereof, the Issuer, for the benefit of the Noteholders, the
+Certificateholders, shall have good and marketable title to the Transferred
+Assets, free and clear of all Liens and adverse interests of others.
+
+(k) No Liens. Other than the security interest granted to the Issuer pursuant to
+this Agreement, the Seller has not pledged, assigned, sold, granted a security
+interest in, or otherwise conveyed any of the Receivables or other Transferred
+Assets to any other Person. The Seller has not authorized the filing of and is
+not aware of any financing statements against the Seller that include a
+description of collateral covering the Receivables or other Transferred Assets
+other than any financing statement relating to the security interest granted to
+the Issuer hereunder or a financing statement as to which the security interest
+covering the Receivables or other Transferred Assets has been released. The
+Seller is not aware of any judgment or tax lien filings against the Seller.
+
+SECTION 6.02 Compliance with Organizational Documents. The Seller agrees with
+the Certificateholders, the Note Owners and each Rating Agency that the Seller
+shall at all times comply with its organizational documents.
+
+SECTION 6.03 Liability of Seller; Indemnities. The Seller shall be liable in
+accordance herewith only to the extent of the obligations specifically
+undertaken by the Seller under this Agreement. The Seller shall indemnify,
+defend and hold harmless the Trust, the Owner Trustee and the Indenture Trustee
+(in such role and as Successor Servicer) from and against any taxes that may at
+any time be asserted against any such Person with respect to, as of the date
+hereof, the sale of the Receivables to the Issuer or the issuance and original
+sale of the Notes and the Certificates, including any sales, gross receipts,
+general corporation, tangible personal property, privilege or license taxes and
+any and all other taxes levied or assessed upon the Issuer or upon all or any
+part of the Collateral (but, in the case of the Trust, not including any taxes
+asserted with respect to ownership of the Receivables or federal or other income
+taxes arising out of the transactions contemplated by this Agreement and the
+Basic Documents) and costs and expenses in defending against the same.
+
+Indemnification under this Section 6.03 shall survive the termination of this
+Agreement and shall include reasonable fees and expenses of counsel and expenses
+of litigation (including the costs of defending any claim or bringing any claim
+to enforce the Seller’s indemnity obligations hereunder). If the Seller shall
+have made any indemnity payment to any Person entitled thereto pursuant to this
+Section 6.03 and such Person thereafter shall collect any of such amounts from
+others, such Person shall promptly repay such amounts to the Seller, without
+interest (except to the extent the recipient collects interest from others).
+
+ 
+
+   43    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Promptly after receipt by a party indemnified under this Section 6.03 (for
+purposes of this paragraph, an “Indemnified Party”) of notice of the
+commencement of any action, such Indemnified Party will, if a claim is to be
+made in respect thereof against the Seller under this Section 6.03, notify the
+Seller of the commencement thereof. If any such action is brought against any
+Indemnified Party under this Section 6.03 and it notifies the Seller of the
+commencement thereof, the Seller will assume the defense thereof, with counsel
+reasonably satisfactory to such Indemnified Party (who may, unless there is, as
+evidenced by an Opinion of Counsel to the Indemnified Party stating that there
+is, a conflict of interest, be counsel to the Seller), and the Seller will not
+be liable to such Indemnified Party under this Section 6.03 for any legal or
+other expenses subsequently incurred by such Indemnified Party in connection
+with the defense thereof, other than reasonable costs of investigation. The
+obligations set forth in this Section 6.03 shall survive the termination of this
+Agreement or the resignation or removal of the Owner Trustee or the Indenture
+Trustee (in such role and as Successor Servicer) and shall include reasonable
+fees and expenses of counsel and expenses of litigation. If the Seller shall
+have made any indemnity payments pursuant to this Section 6.03 and the Person to
+or on behalf of whom such payments are made thereafter collects any of such
+amounts from others, such Person shall promptly repay such amounts to the
+Seller, without interest (except to the extent received by such Person).
+
+The Seller’s obligations under this Section 6.03 are obligations solely of the
+Seller and will not constitute a claim against the Seller to the extent that the
+Seller does not have funds sufficient to make payment of such obligations. In
+furtherance of and not in derogation of the foregoing, the Issuer, the Servicer,
+the Indenture Trustee and the Owner Trustee, by entering into or accepting this
+Agreement, acknowledge and agree that they have no right, title or interest in
+or to the Other Assets of the Seller. To the extent that, notwithstanding the
+agreements and provisions contained in the preceding sentence, the Issuer, the
+Servicer, the Indenture Trustee or the Owner Trustee either (i) asserts an
+interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have
+any such interest, claim to, or benefit in or from Other Assets, whether by
+operation of law, legal process, pursuant to applicable provisions of insolvency
+laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code
+or any successor provision having similar effect under the Bankruptcy Code),
+then the Issuer, the Servicer, the Indenture Trustee or the Owner Trustee, as
+applicable, further acknowledges and agrees that any such interest, claim or
+benefit in or from Other Assets is and will be expressly subordinated to the
+indefeasible payment in full, which, under the terms of the relevant documents
+relating to the securitization or conveyance of such Other Assets, are entitled
+to be paid from, entitled to the benefits of, or otherwise secured by such Other
+Assets (whether or not any such entitlement or security interest is legally
+perfected or otherwise entitled to a priority of distributions or application
+under applicable law, including insolvency laws, and whether or not asserted
+against the Seller), including the payment of post-petition interest on such
+other obligations and liabilities. This subordination agreement will be deemed a
+subordination agreement within the meaning of Section 510(a) of the Bankruptcy
+Code. The Issuer, the Servicer, the Indenture Trustee and the Owner Trustee each
+further acknowledges and agrees that no adequate remedy at law exists for a
+breach of this Section 6.03 and the terms of this Section 6.03 may be enforced
+by an action for specific performance. The provisions of this Section 6.03 will
+be for the third party benefit of those entitled to rely thereon and will
+survive the termination of this Agreement.
+
+SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of,
+Seller. Subject to Section 6.02, any Person (i) into which the Seller may be
+merged or consolidated, (ii) resulting from any merger, conversion or
+consolidation to which the Seller shall be a party,
+
+ 
+
+   44    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(iii) succeeding to the business of the Seller or (iv) that is a corporation
+more than 50% of the voting stock of which is owned directly or indirectly by
+Nissan, which Person in any of the foregoing cases executes an agreement of
+assumption to perform every obligation of the Seller under this Agreement, will
+be the successor to the Seller under this Agreement without the execution or
+filing of any document or any further act on the part of any of the parties to
+this Agreement; provided, however, that (x) immediately after giving effect to
+such transaction, no representation or warranty made pursuant to Section 6.01
+shall have been breached, (y) the Seller shall have delivered to the Owner
+Trustee and the Indenture Trustee an Officer’s Certificate stating that such
+consolidation, merger or succession and such agreement or assumption comply with
+this Section 6.04 and that all conditions precedent, if any, provided for in
+this Agreement relating to such transaction have been complied with and (z) the
+Seller shall have delivered to the Owner Trustee and the Indenture Trustee an
+Opinion of Counsel either (A) stating that, in the opinion of such counsel,
+based on customary qualifications and assumptions, all financing statements and
+continuation statements and amendments thereto have been executed and filed that
+are necessary to fully perfect the interest of the Issuer and the Indenture
+Trustee, respectively, in the Receivables, and reciting the details of such
+filings, or (B) stating that, in the opinion of such counsel, no such action
+shall be necessary to preserve and protect such interest. The Seller shall
+provide notice of any merger, consolidation or succession pursuant to this
+Section 6.04 to the Servicer and the Servicer shall provide notice thereof to
+each Rating Agency.
+
+SECTION 6.05 Limitation on Liability of Seller and Others.
+
+(a) Neither the Seller nor any of the directors, officers, employees or agents
+of the Seller shall be under any liability to the Trust, the Certificateholders
+or the Noteholders, except as provided under this Agreement, for any action
+taken or for refraining from the taking of any action pursuant to this Agreement
+or for errors in judgment; provided, however, that this provision shall not
+protect the Seller or any such person against any liability that would otherwise
+be imposed by reason of willful misfeasance, bad faith or negligence in the
+performance of duties or by reason of reckless disregard of obligations and
+duties under this Agreement. The Seller and any director, officer, employee or
+agent of the Seller may rely in good faith on the advice of counsel or on any
+document of any kind, prima facie properly executed and submitted by any Person
+respecting any matters arising under this Agreement.
+
+(b) The Seller shall not be under any obligation to appear in, prosecute or
+defend any legal action that shall not be incidental to its obligations under
+this Agreement, and that in its opinion may cause it to incur any expense or
+liability; provided, however, that the Servicer may undertake any reasonable
+action that it may deem necessary or desirable in respect of this Agreement and
+the rights and duties of the parties to this Agreement and the interests of the
+Certificateholders and the Noteholders under this Agreement. In such event, the
+legal expenses and costs of such action and any liability resulting therefrom
+shall be expenses, costs and liabilities of the Servicer, and the Servicer will
+not be entitled to be reimbursed therefor.
+
+SECTION 6.06 Seller May Own Certificates or Notes. The Seller and any Affiliate
+of the Seller may in its individual or any other capacity become the owner or
+pledgee of Certificates or Notes with the same rights as it would have if it
+were not the Seller or an Affiliate thereof,
+
+ 
+
+   45    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+except as otherwise provided in the Basic Documents. Certificates or Notes so
+owned by or pledged to the Seller or such controlling or commonly controlled
+Person shall have an equal and proportionate benefit under the provisions of
+this Agreement, without preference, priority or distinction as among all of the
+Certificates or the Notes, as the case may be, except as otherwise expressly
+provided in the Basic Documents.
+
+SECTION 6.07 Sarbanes-Oxley Act Requirements. To the extent any documents are
+required to be filed or any certification is required to be made with respect to
+the Issuer or the Notes pursuant to the Sarbanes-Oxley Act, the Issuer hereby
+authorizes the Servicer and the Seller, or either of them, to prepare, sign,
+certify and file any such documents or certifications on behalf of the Issuer.
+
+ARTICLE VII.
+
+The Servicer
+
+SECTION 7.01 Representations of Servicer. The Servicer makes the following
+representations, which speak as of the Closing Date and shall survive the sale
+of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee
+pursuant to the Indenture.
+
+(a) Organization and Good Standing. The Servicer is duly organized, validly
+existing and in good standing under the laws of the state of its formation, with
+power and authority to own its properties and to conduct its business as such
+properties are currently owned and such business is presently conducted, and had
+at all relevant times, and has, power, authority and legal right to acquire,
+own, sell and service the Receivables and to hold the Receivable Files as
+custodian on behalf of the Issuer and the Indenture Trustee.
+
+(b) Due Qualification. The Servicer is duly qualified to do business as a
+foreign entity in good standing, and has obtained all necessary licenses and
+approvals in all jurisdictions in which the ownership or lease of property or
+the conduct of its business relating to the servicing of the Receivables as
+required by this Agreement shall require such qualifications and where the
+failure to so qualify would have a material adverse effect on the ability of the
+Servicer to perform its obligations under this Agreement.
+
+(c) Power and Authority. The Servicer has the power and authority to execute and
+deliver this Agreement and to carry out its terms; and the execution, delivery
+and performance of this Agreement have been duly authorized by the Servicer by
+all necessary action.
+
+(d) Binding Obligation. This Agreement constitutes a legal, valid and binding
+obligation of the Servicer enforceable in accordance with its terms, subject to
+the effect of bankruptcy, insolvency, reorganization, moratorium or other
+similar laws affecting creditors’ rights generally and by general equitable
+principles, regardless of whether such enforceability shall be considered in
+equity or law.
+
+ 
+
+   46    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(e) No Violation. The consummation of the transactions contemplated by this
+Agreement, and the fulfillment of the terms hereof, do not conflict with, result
+in any breach of any of the terms and provisions of, nor constitute (with or
+without notice or lapse of time) a default under, the articles of incorporation
+or by-laws of the Servicer, or any indenture, agreement or other instrument to
+which the Servicer is a party or by which it shall be bound; nor result in the
+creation or imposition of any Lien upon any of its properties pursuant to the
+terms of any such indenture, agreement or other instrument (other than the Basic
+Documents); nor violate any law or any order, rule or regulation applicable to
+the Servicer of any court or of any federal or state regulatory body,
+administrative agency or other governmental instrumentality having jurisdiction
+over the Servicer or its properties; which breach, default, conflict, Lien or
+violation in any case would have a material adverse effect on the ability of the
+Seller to perform its obligations under this Agreement.
+
+(f) No Proceedings. There are no proceedings or investigations pending, or, to
+the Servicer’s knowledge, threatened, before any court, regulatory body,
+administrative agency or other governmental instrumentality having jurisdiction
+over the Servicer or its properties: (i) asserting the invalidity of this
+Agreement, the Trust Agreement, the Indenture, the Purchase Agreement, the
+Certificates or the Notes; (ii) seeking to prevent the issuance of the
+Certificates or the Notes or the consummation of any of the transactions
+contemplated by this Agreement, the Trust Agreement, the Indenture or the
+Purchase Agreement; (iii) seeking any determination or ruling that would
+materially and adversely affect the performance by the Servicer of its
+obligations under, or the validity or enforceability of, this Agreement, the
+Trust Agreement, the Indenture, the Purchase Agreement, the Certificates or the
+Notes; or (iv) relating to the Servicer and that would adversely affect the
+federal or any state income tax attributes of the Certificates or the Notes.
+
+SECTION 7.02 Indemnities of Servicer. The Servicer shall be liable in accordance
+herewith only to the extent of the obligations specifically undertaken by the
+Servicer under this Agreement:
+
+(a) The Servicer shall defend, indemnify and hold harmless the Owner Trustee,
+the Indenture Trustee, and the Trust from and against any and all costs
+(including reasonable attorneys’ fees), expenses, losses, damages, claims and
+liabilities, including any legal fees and expenses incurred in connection with
+the enforcement by such Person of any indemnification or other obligation of the
+Servicer (collectively, “Damages”) arising out of or resulting from the use,
+ownership or operation by the Servicer or any of its Affiliates (other than the
+Trust) of a Financed Vehicle.
+
+(b) The Servicer shall indemnify, defend and hold harmless the Owner Trustee,
+the Indenture Trustee, and the Issuer from and against any and all Damages to
+the extent that such Damage arose out of, or was imposed upon, the Owner
+Trustee, the Indenture Trustee, and the Trust, through the negligence, willful
+misfeasance or bad faith of the Servicer in the performance of its duties under
+this Agreement or by reason of reckless disregard of its obligations and duties
+under this Agreement.
+
+Promptly after receipt by a party indemnified under this Section 7.02 (for
+purposes of this paragraph, an “Indemnified Party”) of notice of the
+commencement of any action, such Indemnified Party will, if a claim in respect
+thereof is to be made against the Servicer under this
+
+ 
+
+   47    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Section 7.02, notify the Servicer of the commencement thereof. If any such
+action is brought against any Indemnified Party under this Section 7.02 and it
+notifies the Servicer of the commencement thereof, the Servicer will assume the
+defense thereof, with counsel reasonably satisfactory to such Indemnified Party
+(who may, unless there is, as evidenced by an Opinion of Counsel to the
+Indemnified Party stating that there is, a conflict of interest, be counsel to
+the Servicer), and the Servicer will not be liable to such Indemnified Party
+under this Section 7.02 for any legal or other expenses subsequently incurred by
+such Indemnified Party in connection with the defense thereof, other than
+reasonable costs of investigation. The obligations set forth in this
+Section 7.02 shall survive the termination of this Agreement or the resignation
+or removal of the Servicer, the Owner Trustee or the Indenture Trustee and shall
+include reasonable fees and expenses of counsel and expenses of litigation. If
+the Servicer shall have made any indemnity payments pursuant to this
+Section 7.02 and the Person to or on behalf of whom such payments are made
+thereafter collects any of such amounts from others, such Person shall promptly
+repay such amounts to the Servicer, without interest (except to the extent
+received by such Person).
+
+Indemnification under this Section 7.02 by NMAC (or any successor thereto
+pursuant to Section 7.03) as Servicer, with respect to the period such Person
+was the Servicer, shall survive the termination of such Person as Servicer or a
+resignation by such Person as Servicer as well as the termination of this
+Agreement and shall include reasonable fees and expenses of counsel and expenses
+of litigation. If the Servicer shall have made any indemnity payments pursuant
+to this Section 7.02 and the recipient thereafter collects any of such amounts
+from others, the recipient shall promptly repay such amounts to the Servicer,
+without interest (except to the extent the recipient collects interest from
+others).
+
+SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of,
+Servicer. Any Person (i) into which the Servicer may be merged or consolidated,
+(ii) resulting from any merger, conversion or consolidation to which the
+Servicer shall be a party, (iii) succeeding to the business of the Servicer, or
+(iv) so long as NMAC acts as Servicer, that is a corporation more than 50% of
+the voting stock of which is owned directly or indirectly by Nissan, which
+Person in any of the foregoing cases executes an agreement of assumption to
+perform every obligation of the Servicer under this Agreement, will be the
+successor to the Servicer under this Agreement without the execution or filing
+of any paper or any further act on the part of any of the parties to this
+Agreement; provided, however, that (x) the Servicer shall have delivered to the
+Owner Trustee and the Indenture Trustee an Officer’s Certificate stating that
+such consolidation, merger or succession and such agreement of assumption comply
+with this Section 7.03 and that all conditions precedent provided for in this
+Agreement relating to such transaction have been complied with and (y) the
+Servicer shall have delivered to the Owner Trustee and the Indenture Trustee an
+Opinion of Counsel either (A) stating that, in the opinion of such counsel,
+based on customary qualifications and assumptions, all financing statements and
+continuation statements and amendments thereto have been executed and filed that
+are necessary fully to preserve and protect the interest of the Issuer and the
+Indenture Trustee in the Receivables, and reciting the details of such filings,
+or (B) stating that, in the opinion of such counsel, no such action shall be
+necessary to perfect such interest. The Servicer shall provide notice of any
+merger, consolidation or succession pursuant to this Section 7.03 to each Rating
+Agency.
+
+ 
+
+   48    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 7.04 Limitation on Liability of Servicer and Others.
+
+(a) Neither the Servicer nor any of the directors, officers, employees or agents
+of the Servicer shall be under any liability to the Trust, the
+Certificateholders or the Noteholders, or any other Person, except as expressly
+provided under this Agreement, for any action taken or for refraining from the
+taking of any action pursuant to this Agreement or for errors in judgment;
+provided, however, that this provision shall not protect the Servicer or any
+such person against any liability that would otherwise be imposed by reason of
+willful misfeasance, bad faith or negligence in the performance of duties or by
+reason of reckless disregard of obligations and duties under this Agreement. The
+Servicer and any director, officer, employee or agent of the Servicer may rely
+in good faith on the advice of counsel or on any document of any kind, prima
+facie properly executed and submitted by any Person respecting any matters
+arising under this Agreement.
+
+(b) Except as provided in this Agreement, the Servicer shall not be under any
+obligation to appear in, prosecute or defend any legal action that shall not be
+incidental to its duties to service the Receivables in accordance with this
+Agreement, and that in its opinion may cause it to incur any expense or
+liability; provided, however, that the Servicer may undertake any reasonable
+action that it may deem necessary or desirable in respect of the Basic Documents
+and the rights and duties of the parties to the Basic Documents and the
+interests of the Certificateholders under this Agreement and the Noteholders
+under the Indenture. In such event, the legal expenses and costs of such action
+and any liability resulting therefrom shall be expenses, costs and liabilities
+of the Servicer, and the Servicer will not be entitled to be reimbursed
+therefor.
+
+SECTION 7.05 NMAC Not To Resign as Servicer. Subject to the provisions of
+Section 7.03, NMAC shall not resign from the obligations and duties hereby
+imposed on it as Servicer under this Agreement except upon determination that
+the performance of its duties under this Agreement shall no longer be
+permissible under applicable law. Notice of any such determination permitting
+the resignation of NMAC shall be communicated to the Owner Trustee and the
+Indenture Trustee at the earliest practicable time (and, if such communication
+is not in writing, shall be confirmed in writing at the earliest practicable
+time), and any such determination shall be evidenced by an Opinion of Counsel to
+such effect delivered to the Owner Trustee and the Indenture Trustee
+concurrently with or promptly after such notice. No such resignation shall
+become effective until the Indenture Trustee or a Successor Servicer shall
+(i) have taken the actions required by Section 8.01 of this Agreement to effect
+the termination of the responsibilities and rights of the predecessor Servicer
+under this Agreement, including the transfer to the Successor Servicer for
+administration by it of all cash amounts that shall at the time be held by the
+predecessor Servicer for deposit, or shall thereafter be received with respect
+to a Receivable and the delivery of the Receivable Files, and the related
+accounts and records maintained by the Servicer and (ii) have assumed the
+responsibilities and obligations of NMAC as Servicer under this Agreement in
+accordance with Section 8.02 of this Agreement.
+
+ 
+
+   49    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE VIII.
+
+Default
+
+SECTION 8.01 Servicer Default. If any one of the following events (a “Servicer
+Default”) shall occur and be continuing:
+
+(a) any failure by the Servicer to deliver or cause to be delivered to the
+Relevant Trustee for deposit in any of the Accounts any required payment or to
+direct the Relevant Trustee to make any required distributions therefrom, which
+failure continues unremedied for a period of ten Business Days after (i) receipt
+by the Servicer of written notice of such failure given by the Indenture Trustee
+or Holders of Notes evidencing not less than a majority of the Outstanding
+Amount, acting together as a single class, or, if no Notes are Outstanding,
+Holders of Certificates evidencing not less than a majority of the Certificate
+Balance or (ii) discovery of such failure by an Authorized Officer of the
+Servicer;
+
+(b) any failure by the Servicer to duly observe or perform in any material
+respect any other covenants or agreements of the Servicer set forth in this
+Agreement (including its obligation to purchase Receivables pursuant to
+Section 4.06), which failure shall materially and adversely affect the rights of
+the Securityholders and shall continue unremedied for a period of 90 days after
+receipt by the Servicer of written notice of such failure given by the Indenture
+Trustee or Holders of Notes evidencing not less than a majority of the
+Outstanding Amount, acting together as a single class, or, if no Notes are
+Outstanding, Holders of Certificates evidencing not less than a majority of the
+Certificate Balance; provided, however, that a failure under this clause
+(b) that continues unremedied for a period of 150 days or less will not
+constitute a Servicer Default if such failure was caused by force majeure or
+other similar occurrence; or
+
+(c) the occurrence of an Insolvency Event with respect to the Servicer;
+
+then, and in each and every case, so long as the Servicer Default shall not have
+been remedied, either the Indenture Trustee or the Holders of Notes evidencing a
+majority of the Outstanding Amount of the Notes, acting together as a single
+Class or, if no Notes are Outstanding, Holders of Certificates evidencing not
+less than a majority of the Certificate Balance, by notice then given in writing
+to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by
+the Noteholders) and the Administrator (and the Administrator will provide
+notice thereof to each Rating Agency pursuant to Section 1(d) of the
+Administration Agreement) may terminate all of the rights and obligations (other
+than the obligations set forth in Section 7.02 hereof) of the Servicer under
+this Agreement. On or after the receipt by the Servicer of such written notice,
+all authority and power of the Servicer under this Agreement, whether with
+respect to the Notes, the Certificates or the Receivables or otherwise, shall,
+without further action, pass to and be vested in the Indenture Trustee or such
+Successor Servicer as may be appointed under Section 8.02; and, without
+limitation, the Indenture Trustee and the Owner Trustee are hereby authorized
+and empowered to execute and deliver, for the benefit of the predecessor
+Servicer, as attorney-in-fact or otherwise, any and all documents and other
+instruments, and to do or accomplish all other acts or things necessary or
+appropriate to effect the purposes of such notice of termination, whether to
+
+ 
+
+   50    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+complete the transfer and endorsement of the Receivables and related documents,
+or otherwise. The predecessor Servicer shall cooperate with the Successor
+Servicer and the Owner Trustee in effecting the termination of the
+responsibilities and rights of the predecessor Servicer under this Agreement,
+including, without limitation, the transfer to the Successor Servicer for
+administration by it of all cash amounts that shall at the time be held by the
+predecessor Servicer for deposit, or have been deposited by the predecessor
+Servicer, in the Accounts or thereafter received with respect to the Receivables
+that shall at that time be held by the predecessor Servicer and the delivery of
+the Receivable Files and the related accounts and records maintained by the
+predecessor Servicer. All reasonable costs and expenses (including attorneys’
+fees) incurred in connection with transferring the Receivable Files to the
+Successor Servicer and amending this Agreement to reflect such succession as
+Servicer pursuant to this Section 8.01 shall be paid by the predecessor Servicer
+upon presentation of reasonable documentation of such costs and expenses.
+Notwithstanding the foregoing, in the event the predecessor Servicer is the
+Indenture Trustee, the original Servicer hereunder shall reimburse the Indenture
+Trustee for all reasonable costs and expenses as described in the immediately
+preceding sentence.
+
+SECTION 8.02 Appointment of Successor.
+
+(a) Upon the Servicer’s receipt of notice of termination pursuant to
+Section 8.01 or the Servicer’s resignation in accordance with the terms of this
+Agreement, the predecessor Servicer shall continue to perform its functions as
+Servicer under this Agreement, in the case of termination, only until the date
+specified in such termination notice or, if no such date is specified in a
+notice of termination, until receipt of such notice and, in the case of
+resignation, until the earlier of (i) the date 45 days from the delivery to the
+Owner Trustee and the Indenture Trustee of written notice of such resignation
+(or written confirmation of such notice) in accordance with the terms of this
+Agreement and (ii) the date upon which the predecessor Servicer shall become
+unable to act as Servicer, as specified in the notice of resignation and
+accompanying Opinion of Counsel. In the event of the Servicer’s resignation or
+termination hereunder, the Indenture Trustee (or, if no Notes are Outstanding,
+the Issuer acting upon the direction of Holders of Certificates evidencing not
+less than a majority of the Certificate Balance) shall appoint a Successor
+Servicer, and the Successor Servicer shall accept its appointment (including its
+appointment as Administrator under the Administration Agreement as set forth in
+Section 8.02(b)) by a written assumption in form acceptable to the Owner Trustee
+and the Indenture Trustee and shall provide in writing the information
+reasonably required by the Seller to comply with its reporting obligations under
+the Exchange Act with respect to a replacement servicer. If a Successor Servicer
+has not been appointed at the time when the predecessor Servicer has ceased to
+act as Servicer in accordance with this Section 8.02, the Indenture Trustee
+without further action shall automatically be appointed the Successor Servicer
+and the Indenture Trustee shall be entitled to the Base Servicing Fee.
+Notwithstanding the above, the Indenture Trustee (or, if no Notes are
+Outstanding, the Issuer acting upon the direction of Holders of Certificates
+evidencing not less than a majority of the Certificate Balance) shall, if it is
+unwilling or legally unable so to act, appoint or petition a court of competent
+jurisdiction to appoint, and the predecessor Servicer, if no successor Servicer
+has been appointed at the time the predecessor Servicer has ceased to act, may
+petition a court of competent jurisdiction to appoint any established
+institution having a net worth of not less than $100,000,000 and whose regular
+business shall include the servicing of automobile and/or light-duty truck
+receivables, as the successor to the Servicer under this Agreement.
+
+ 
+
+   51    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) Upon appointment, the Successor Servicer (including the Indenture Trustee
+acting as Successor Servicer) shall (i) be the successor in all respects to the
+predecessor Servicer and shall be subject to all the responsibilities, duties
+and liabilities arising thereafter relating thereto placed on the predecessor
+Servicer and shall be entitled, subject to the arrangements referred to in
+paragraph (c) below, to the servicing fee and all the rights granted to the
+predecessor Servicer by the terms and provisions of this Agreement and
+(ii) become the Administrator under the Administration Agreement in accordance
+with Section 8 of such Agreement. Notwithstanding anything to the contrary
+contained herein or in the Basic Documents, if the Indenture Trustee shall act
+as Successor Servicer, it shall not, in any event, have obligations (i) to pay
+any fees, expenses and other amounts owing to the Administrator, (ii) to pay any
+indemnities owed pursuant to Section 3.05 or Section 7.02, or (iii) to
+repurchase Receivables pursuant to Section 4.06 if such repurchase obligations
+are due to the actions or omissions of the predecessor Servicer.
+
+(c) In connection with such appointment, the Issuer may make such arrangements
+for the compensation of such Successor Servicer out of payments on Receivables
+as it and such Successor Servicer shall agree; provided, however, that no such
+compensation shall be in excess of that permitted the predecessor Servicer under
+this Agreement. The Issuer, the Indenture Trustee and such Successor Servicer
+shall take such action, consistent with this Agreement, as shall be necessary to
+effectuate any such succession.
+
+SECTION 8.03 Notification . Upon any termination of, or appointment of a
+successor to, the Servicer pursuant to this Article VIII, the Owner Trustee
+shall give prompt written notice thereof to the Certificateholders and the
+Indenture Trustee shall give prompt written notice thereof to the Noteholders
+and the Asset Representations Reviewer and the Administrator (and the
+Administrator will provide notice thereof to each Rating Agency pursuant to
+Section 1(d) of the Administration Agreement).
+
+SECTION 8.04 Waiver of Past Defaults. The Holders of Notes evidencing a majority
+of the Outstanding Amount of the Notes, or, in the case of any Servicer Default
+which does not adversely affect the Indenture Trustee or the Noteholders, the
+Holders of Certificates evidencing a majority of the Certificate Balance, may,
+on behalf of all the Noteholders and the Certificateholders, waive in writing
+any default by the Servicer in the performance of its obligations hereunder and
+its consequences, except a default in making any required deposits to or
+payments from the Collection Account in accordance with this Agreement. Upon any
+such waiver of a past default, such default shall cease to exist, and any
+Servicer Default arising therefrom shall be deemed to have been remedied for
+every purpose of this Agreement. No such waiver shall extend to any subsequent
+or other default or impair any right consequent thereto.
+
+ 
+
+   52    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE IX.
+
+Termination; Release of Receivables
+
+SECTION 9.01 Optional Purchase of All Receivables.
+
+(a) On each Distribution Date following the last day of a Collection Period as
+of which the Pool Balance shall be less than or equal to the Optional Purchase
+Percentage multiplied by the Original Pool Balance, NMAC, as Servicer, shall
+have the option to purchase, or cause to be purchased (the “Optional Purchase”),
+the Collateral (other than the Reserve Account) for an amount equal to the
+Optional Purchase Price. To exercise such option, NMAC, as Servicer, shall
+notify the Owner Trustee and the Indenture Trustee of its intention to do so in
+writing, no later than the first Business Day of the month in which such
+purchase is to be effected and shall, no later than 5:00 p.m., New York City
+time, on the Business Day prior to the Distribution Date on which such purchase
+is to occur (such Distribution Date, the “Redemption Date”), deposit pursuant to
+Section 5.05 in the Collection Account an amount equal to the Optional Purchase
+Price (subject to Section 5.05), and shall succeed to all interests in and to
+the Collateral (other than the Reserve Account). Amounts so deposited will be
+paid and distributed as set forth in Section 5.06 of this Agreement.
+
+(b) Notice of any such purchase of the Owner Trust Estate shall be given by the
+Owner Trustee and the Indenture Trustee to each Securityholder as soon as
+practicable after their receipt of notice thereof from the Servicer. The
+Servicer shall also deliver a copy of such notice to each Rating Agency.
+
+(c) Following the satisfaction and discharge of the Indenture and the payment in
+full of the principal of and interest on the Notes, the Certificateholders will
+succeed to the rights of the Noteholders hereunder other than under Section 5.06
+and the Owner Trustee will succeed to the rights of the Indenture Trustee
+provided for in this Agreement.
+
+SECTION 9.02 Release of Receivables.
+
+(a) Upon repurchase of any Receivable by the Seller pursuant to Section 3.02 or
+by the Servicer pursuant to Section 4.06 or Section 9.01, the Issuer and the
+Indenture Trustee on behalf of the Noteholders, shall, without further action,
+be deemed to transfer, assign, set-over and otherwise convey to the Seller or
+the Servicer, as the case may be, all right, title and interest of the Issuer
+in, to and under such repurchased Receivable, all monies due or to become due
+with respect thereto and all proceeds thereof and the other property conveyed to
+the Issuer hereunder pursuant to Section 2.01 with respect to such Receivable,
+and all security and any records relating thereto, such assignment being an
+assignment outright and not for security; and the Seller or the Servicer, as
+applicable, shall thereupon own each such Receivable, and all such related
+security and records, free of any further obligation to the Issuer, the Owner
+Trustee, the Certificateholders, the Indenture Trustee or the Noteholders with
+respect thereto.
+
+ 
+
+   53    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) The Issuer and Indenture Trustee shall execute such documents and
+instruments of transfer and assignment and take such other actions as shall be
+reasonably requested by the Seller or the Servicer, as the case may be, to
+effect the conveyance of such Receivable pursuant to Sections 3.02, 4.06 and
+9.02.
+
+SECTION 9.03 Termination.
+
+(a) The respective obligations of the Seller, the Servicer, NMAC (so long as
+NMAC has rights or obligations hereunder), the Owner Trustee, and the Indenture
+Trustee, as the case may be, pursuant to this Agreement shall terminate upon the
+earliest of (i) the maturity or other liquidation of the last Receivable and the
+final disposition of all amounts received upon liquidation of any remaining
+Receivables, or (ii) the election by the Servicer to purchase the Owner Trust
+Estate as described in Section 9.01 and the payment or distribution to
+Securityholders of all amounts required to be paid to them under the Indenture
+or the Trust Agreement, as the case may be.
+
+(b) Notice of any such termination under this Section 9.03 shall be given by the
+Indenture Trustee or the Owner Trustee to each Securityholder of record as
+specified in the Indenture or the Trust Agreement, as appropriate.
+
+SECTION 9.04 Rights of the Certificateholders. Notwithstanding anything
+contained herein or in any Basic Document to the contrary, after the Notes are
+no longer Outstanding following payment in full of the principal and interest on
+the Notes and the satisfaction and discharge of the Indenture, (i) the
+Certificateholders will succeed to the rights of the Noteholders under this
+Agreement and (ii) the Owner Trustee will succeed to the rights of, but not,
+without its express consent, the obligations of the Indenture Trustee pursuant
+to this Agreement; provided, however, the Certificateholders shall not be
+entitled to any payments pursuant to Section 5.06 other than pursuant to
+Section 5.06(a)(viii) of this Agreement and 5.04(b)(6) of the Indenture.
+
+ARTICLE X.
+
+Miscellaneous
+
+SECTION 10.01 Amendment.
+
+(a) Any term or provision of this Agreement may be amended by the Seller and the
+Servicer, without the consent of the Indenture Trustee, any Noteholder, the
+Issuer, the Owner Trustee or any other Person subject to the satisfaction of one
+of the following conditions:
+
+(i) the Seller or the Servicer delivers an Officer’s Certificate or Opinion of
+Counsel to the Indenture Trustee to the effect that such amendment will not
+materially and adversely affect the interests of the Noteholders; or
+
+(ii) the Rating Agency Condition is satisfied with respect to such amendment;
+
+ 
+
+   54    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+provided, that no amendment pursuant to this Section 10 shall be effective which
+affects the rights, protections or duties of the Indenture Trustee, the Owner
+Trustee or the Asset Representations Reviewer without the prior written consent
+of such Person, (which consent shall not be unreasonably withheld or delayed);
+provided, further, that in the event that any Certificates are held by anyone
+other than the Administrator or any of its Affiliates, this Agreement may only
+be amended by the Seller and the Servicer if, in addition, (i) the Holders of
+the Certificates evidencing a majority of the Certificate Balance of the
+Certificates consent to such amendment or (ii) such amendment shall not, as
+evidenced by an Officer’s Certificate of the Administrator or an Opinion of
+Counsel delivered to the Owner Trustee, materially and adversely affect the
+interests of the Certificateholders.
+
+(b) This Agreement may also be amended by the Seller and the Servicer for the
+purpose of adding any provisions to or changing in any manner or eliminating any
+of the provisions of this Agreement or of modifying in any manner the rights of
+the Noteholders or the Certificateholders with the consent of:
+
+(i) the Holders of Notes evidencing not less than a majority of the Outstanding
+Amount of the Notes; and
+
+(ii) the Holders of the Certificates evidencing a majority of the Certificate
+Balance.
+
+It will not be necessary for the consent of Noteholders or Certificateholders to
+approve the particular form of any proposed amendment or consent, but it will be
+sufficient if such consent approves the substance thereof.
+
+(c) Promptly after the execution of any such amendment or consent, the Servicer
+shall furnish written notification of the substance of such amendment or consent
+to each Rating Agency.
+
+(d) Prior to its execution of any amendment to this Agreement, each of the Owner
+Trustee and the Indenture Trustee shall be entitled to receive and rely upon an
+Opinion of Counsel stating that the execution of such amendment is authorized or
+permitted by this Agreement. The Owner Trustee and the Indenture Trustee may,
+but shall not be obligated to, enter into any such amendment which adversely
+affects the Owner Trustee’s or the Indenture Trustee’s, as applicable, own
+rights, duties or immunities under this Agreement.
+
+SECTION 10.02 Protection of Title to Trust.
+
+(a) The Seller shall authorize and file such financing statements and cause to
+be executed and filed such continuation statements, all in such manner and in
+such places as may be required by law fully to preserve, maintain and protect
+the interest of the Issuer and of the Indenture Trustee in the Receivables and
+in the proceeds thereof. The Seller shall deliver (or cause to be delivered) to
+the Owner Trustee and the Indenture Trustee file-stamped copies of, or filing
+receipts for, any document filed as provided above, as soon as available
+following such filing.
+
+ 
+
+   55    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) The Seller and the Servicer shall notify the Owner Trustee and the Indenture
+Trustee within 30 days after any change of its name, identity or corporate
+structure in any manner that would, could or might make any financing statement
+or continuation statement filed in accordance with paragraph (a) above seriously
+misleading within the meaning of Section 9-507(c) of the UCC, and shall promptly
+file appropriate amendments to all previously filed financing statements or
+continuation statements.
+
+(c) The Servicer shall maintain accounts and records as to each Receivable
+accurately and in sufficient detail to permit (i) the reader thereof to know at
+any time the status of such Receivable, including payments and recoveries made
+and payments owing (and the nature of each), and (ii) reconciliation between
+payments or recoveries on (or with respect to) each Receivable and the amounts
+from time to time deposited in the Collection Account in respect of such
+Receivable.
+
+(d) The Servicer shall maintain its computer systems so that, from and after the
+time of sale under this Agreement of the Receivables to the Trust, the
+Servicer’s master computer records that refer to any Receivable shall indicate
+clearly the interest of the Issuer and the Indenture Trustee in such Receivable
+and that such Receivable is owned by the Issuer and has been pledged to the
+Indenture Trustee. The Servicer shall at all times maintain control of the
+Receivables constituting electronic chattel paper. Indication of these
+respective interests in a Receivable shall be deleted from or modified on the
+Servicer’s computer systems when, and only when, the related Receivable shall
+have become a Liquidated Receivable or been purchased by the Seller or NMAC.
+
+(e) If at any time the Seller or the Servicer shall propose to sell, grant a
+security interest in, or otherwise transfer any interest in automotive
+receivables to, any prospective purchaser, lender or other transferee, the
+Servicer shall give to such prospective purchaser, lender or other transferee
+computer tapes, records or printouts that, if they shall refer in any manner
+whatsoever to any Receivable, shall indicate clearly that such Receivable has
+been sold and is owned by the Issuer and has been pledged to the Indenture
+Trustee.
+
+SECTION 10.03 Notices. All demands, notices, communications and instructions
+upon or to the Seller, the Servicer, the Owner Trustee, the Indenture Trustee or
+the Rating Agencies under this Agreement shall be in writing, personally
+delivered, mailed by certified mail, return receipt requested, or delivered by
+telecopier or electronically by email (if an email address is provided), and
+shall be deemed to have been duly given upon receipt (a) in the case of the
+Seller, to Nissan Auto Receivables Corporation II, One Nissan Way, Franklin,
+Tennessee, 37067 (telecopier no. (615) 725-8530) (email:
+doug.gwin@nissan-usa.com), Attention: Treasurer, (b) in the case of the
+Servicer, to Nissan Motor Acceptance Corporation, One Nissan Way, Franklin,
+Tennessee, 37067 (telecopier no. (615) 725-8530) (email:
+doug.gwin@nissan-usa.com), Attention: Treasurer, (c) in the case of the Issuer
+or the Owner Trustee, to Nissan Auto Receivables 2020-A Owner Trust, c/o
+Wilmington Trust, National Association, Rodney Square North, 1100 North Market
+Street, Wilmington, Delaware 19890 (telecopier no. (302) 636-4140) (email:
+DCostello@wilmingtontrust.com), Attention: Nissan Auto Receivables 2020-A Owner
+Trust, (d) in the case of the Indenture Trustee, to U.S. Bank National
+Association, 190 South LaSalle Street, 7th Floor, Chicago, IL 60603 (telecopier
+no. (312) 332-7493) (email:
+
+ 
+
+   56    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+brian.kozack@usbank.com), Attention: NAROT 2020-A, (e) in the case of Moody’s,
+to Moody’s Investors Service, Inc., ABS Monitoring Department, 7 World Trade
+Center, 250 Greenwich Street, New York, New York 10007 (telecopier no. (212)
+553-7820) (email: ServicerReports@Moodys.com), (f) in the case of S&P, to S&P
+Global Ratings, 55 Water Street, New York, New York 10041 (email:
+servicer_reports@spglobal.com); or, as to each of the foregoing, at such other
+address as shall be designated by written notice to the other parties.
+
+All notices, requests, reports, consents or other communications required to be
+delivered to the Rating Agencies by the Servicer hereunder shall be delivered by
+the Servicer to each Rating Agency then rating the Notes; provided, however,
+that all notices, requests, reports, consents or other communications required
+to be delivered to the Rating Agencies hereunder or under any other Basic
+Document shall be deemed to be delivered if a copy of such notice, request,
+report, consent or other communication has been posted on any website maintained
+by or on behalf of NMAC pursuant to a commitment to any Rating Agency relating
+to the Notes in accordance with 17 C.F.R. 240 17g-5(a)(3).
+
+SECTION 10.04 Limitations on Rights of Others. The provisions of this Agreement
+are solely for the benefit of the Seller, the Servicer, the Issuer, the Owner
+Trustee, the Certificateholders, the Indenture Trustee, and the Noteholders and
+nothing in this Agreement, whether express or implied, shall be construed to
+give to any other Person any legal or equitable right, remedy or claim in the
+Owner Trust Estate or under or in respect of this Agreement or any covenants,
+conditions or provisions contained herein.
+
+SECTION 10.05 Severability. Any provision of this Agreement that is prohibited
+or unenforceable in any jurisdiction shall, as to such jurisdiction, be
+ineffective to the extent of such prohibition or unenforceability without
+invalidating the remaining provisions hereof, and any such prohibition or
+unenforceability in any jurisdiction shall not invalidate or render
+unenforceable such provision in any other jurisdiction.
+
+SECTION 10.06 Separate Counterparts and Electronic Signature. This Agreement may
+be executed by the parties hereto in separate counterparts, each of which when
+so executed and delivered shall be an original, but all such counterparts shall
+together constitute but one and the same instrument. Each party agrees that this
+Agreement and any other documents to be delivered in connection herewith may be
+digitally or electronically signed, and that any digital or electronic
+signatures (including pdf, facsimile or electronically imaged signatures
+provided by a digital signature provider as specified in writing to the
+Indenture Trustee) appearing on this Agreement or such other documents shall
+have the same effect as manual signatures for the purpose of validity,
+enforceability and admissibility. Other than with respect to instances in which
+manual signatures are expressly required by this paragraph, each party hereto
+shall be entitled to conclusively rely upon, and shall have no liability with
+respect to, any digital or electronic signature appearing on this Agreement or
+any other documents to be delivered in connection herewith and shall have no
+duty to investigate, confirm or otherwise verify the validity or authenticity
+thereof.
+
+SECTION 10.07 Headings. The headings of the various Articles and Sections herein
+are for convenience of reference only and shall not define or limit any of the
+terms or provisions hereof.
+
+SECTION 10.08 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
+WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
+PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
+STATE OF NEW YORK), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
+HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
+
+ 
+
+   57    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 10.09 Assignment by Issuer. The Seller hereby acknowledges and consents
+to any mortgage, pledge, assignment and grant of a security interest by the
+Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the
+Noteholders of all right, title and interest of the Issuer in, to and under the
+Receivables and the related property acquired hereunder and/or the assignment of
+any or all of the Issuer’s rights and obligations hereunder to the Indenture
+Trustee.
+
+SECTION 10.10 Nonpetition Covenant. Each party hereto agrees that, prior to the
+date which is one year and one day after payment in full of all obligations of
+each Bankruptcy Remote Party in respect of all securities issued by any
+Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy Remote
+Party to commence a voluntary winding-up or other voluntary case or other
+Proceeding seeking liquidation, reorganization or other relief with respect to
+such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or
+other similar law now or hereafter in effect in any jurisdiction or seeking the
+appointment of an administrator, a trustee, receiver, liquidator, custodian or
+other similar official with respect to such Bankruptcy Remote Party or any
+substantial part of its property or to consent to any such relief or to the
+appointment of or taking possession by any such official in an involuntary case
+or other Proceeding commenced against such Bankruptcy Remote Party, or to make a
+general assignment for the benefit of, its creditors generally, any party hereto
+or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall
+not commence, join with any other Person in commencing or institute with any
+other Person, any Proceeding against such Bankruptcy Remote Party under any
+bankruptcy, reorganization, liquidation or insolvency law or statute now or
+hereafter in effect in any jurisdiction. This Section shall survive the
+termination of this Agreement.
+
+SECTION 10.11 Limitation of Liability of Owner Trustee and Indenture Trustee.
+Notwithstanding anything contained herein to the contrary, this Agreement has
+been executed by Wilmington Trust, National Association, not in its individual
+capacity, but solely in its capacity as Owner Trustee of the Issuer, and by U.S.
+Bank National Association, not in its individual capacity, but solely in its
+capacity as Indenture Trustee under the Indenture. In no event shall Wilmington
+Trust, National Association or U.S. Bank National Association, have any
+liability for the representations, warranties, covenants, agreements or other
+obligations of the Issuer hereunder or in any of the certificates, notices or
+agreements delivered by the Seller or the Servicer, or prepared by the Seller or
+the Servicer for delivery by the Owner Trustee on behalf of the Issuer, pursuant
+hereto, as to all of which recourse shall be had solely to the assets of the
+Issuer. For all purposes of this Agreement, in the performance of its duties or
+obligations hereunder or in the performance of any duties or obligations of the
+Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the
+benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust
+Agreement.
+
+SECTION 10.12 Waivers. No failure or delay on the part of the Issuer in
+exercising any power, right or remedy under this Agreement or the Assignment
+shall operate as a waiver hereof or thereof, nor shall any single or partial
+exercise of any such power, right or remedy preclude any other or further
+exercise hereof or thereof or the exercise of any such power, right or remedy
+preclude any other or further exercise hereof or thereof or the exercise of any
+other power, right or remedy.
+
+ 
+
+   58    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 10.13 Dispute Resolution.
+
+(a) If the Seller, Issuer, an Investor, the Owner Trustee (acting at the
+direction of a Certificateholder) or the Indenture Trustee (acting at the
+direction of an Investor pursuant to Section 7.07 of the Indenture) (the
+“Requesting Party”) requests that NMAC or the Seller repurchase any Receivable
+pursuant to Section 4.3 of the Purchase Agreement or Section 3.02 hereof,
+respectively, (the party or parties requested to repurchase a receivable, the
+“Requested Party” or “Requested Parties”) and the repurchase request has not
+been fulfilled or otherwise resolved to the reasonable satisfaction of the
+Requesting Party within 180 days of the receipt of notice of the request by NMAC
+or the Seller, as applicable, the Requesting Party will have the right to refer
+the matter, at its discretion, to either mediation or arbitration pursuant to
+this Section 10.13. If the Requesting Party is the Indenture Trustee or the
+Owner Trustee, the Indenture Trustee or the Owner Trustee, as applicable, will
+follow the direction of the related Investor or Certificateholder, as
+applicable, during the mediation or arbitration. If both the Owner Trustee (on
+behalf of one or more Certificateholders) and the Indenture Trustee (on behalf
+of one or more Investors) are Requesting Parties, then the Indenture Trustee as
+Requesting Party (at the direction of the Investor that directed the Indenture
+Trustee to make the repurchase request) shall have the right to make the
+selection of mediation or arbitration.
+
+(b) The Requesting Party will provide notice in accordance with the provisions
+of Section 10.03 of its intention to refer the matter to mediation or
+arbitration, as applicable, to the Requested Parties, with a copy to the Issuer,
+the Owner Trustee and the Indenture Trustee. Each of NMAC and the Seller agree
+that such Person will participate in the resolution method selected by the
+Requesting Party to the extent such Person is a Requested Party. The Requested
+Party shall provide notice to the Seller, Issuer, the Owner Trustee, and the
+Indenture Trustee that the Requested Party has received a request to mediate or
+arbitrate a repurchase request. Upon receipt of such notice, the Depositor, the
+Issuer, the Owner Trustee and the Indenture Trustee shall advise the Requesting
+Party and Requested Party of an intent to join in the mediation or arbitration,
+which shall result in their being joined as a Requesting Party in the
+proceeding. A Requesting Party may not initiate a mediation or arbitration
+pursuant to this Section 10.13 with respect to a Receivable that is, or has
+been, the subject of an ongoing or previous mediation or arbitration (whether by
+that Requesting Party or another Requesting Party) but will have the right to
+join an existing mediation or arbitration with respect to that Receivable if the
+mediation or arbitration has not yet concluded, subject to a determination by
+the parties to the existing mediation or arbitration that such joinder would not
+prejudice the rights of the participants to such existing mediation or
+arbitration or unduly delay such proceeding.
+
+(c) If the Requesting Party selects mediation as the resolution method, the
+following provisions will apply:
+
+(i) The mediation will be administered by a nationally recognized arbitration
+and mediation association selected by the Requesting Party and conducted
+pursuant to such association’s mediation procedures in effect at such time.
+
+ 
+
+   59    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(ii) The fees and expenses of the mediation will be allocated as mutually agreed
+by the parties as part of the mediation.
+
+(iii) The mediator is required to be impartial, knowledgeable about and
+experienced with the laws of the State of New York that are relevant to the
+repurchase dispute and will be appointed from a list of neutrals maintained by
+the American Arbitration Association (the “AAA”).
+
+(d) If the Requesting Party selects arbitration as the resolution method, the
+following provisions will apply:
+
+(i) The arbitration will be administered by a nationally recognized arbitration
+and mediation association jointly selected by the parties, and if the parties
+are unable to agree on an association, by the AAA, and conducted pursuant to
+such association’s arbitration procedures in effect at such time.
+
+(ii) The arbitrator is required to be impartial, knowledgeable about and
+experienced with the laws of the State of New York that are relevant to the
+repurchase dispute and will be appointed from a list of neutrals maintained by
+AAA.
+
+(iii) The arbitrator will make its final determination no later than 90 days
+after appointment or as soon as practicable thereafter. The arbitrator will
+resolve the dispute in accordance with the terms of this Agreement, and may not
+modify or change this Agreement in any way. The arbitrator will not have the
+power to award punitive damages or consequential damages in any arbitration
+conducted by it, and the Requested Party shall not be required to pay more than
+the applicable Repurchase Amount with respect to any receivable which such
+Requested Party is required to repurchase under the terms of the Purchase
+Agreement or this Agreement, as applicable. In its final determination, the
+arbitrator will determine and award the costs of the arbitration (including the
+fees of the arbitrator, cost of any record or transcript of the arbitration, and
+administrative fees) and reasonable attorneys’ fees to the parties as determined
+by the arbitrator in its reasonable discretion. If an Asset Review was conducted
+in connection with the Receivables that are the subject of the arbitration, then
+the arbitrator will determine the party or parties required to pay the related
+Asset Reviewer Fee. The determination of the arbitrator will be in writing and
+counterpart copies will be promptly delivered to the parties. The determination
+will be final and non-appealable absent manifest error and may be enforced in
+any court of competent jurisdiction.
+
+(iv) By selecting arbitration, the Requesting Party is waiving the right to sue
+in court, including the right to a trial by jury.
+
+(v) No person may bring a putative or certified class action to arbitration.
+
+ 
+
+   60    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(e) For the avoidance of doubt, neither the Owner Trustee nor the Indenture
+Trustee shall be responsible to evaluate the qualifications of any mediator or
+arbitrator, or for paying the costs, expenses and fees of any mediation or
+arbitration initiated by a Requesting Party in accordance with this
+Section 10.13.
+
+(f) The following provisions will apply to both mediations and arbitrations:
+
+(i) Any mediation or arbitration will be held in New York, New York or such
+other location mutually agreed to by the Requesting Party and the Requested
+Parties;
+
+(ii) Notwithstanding this dispute resolution provision, the parties will have
+the right to seek provisional relief from a competent court of law, including a
+temporary restraining order, preliminary injunction or attachment order,
+provided such relief would otherwise be available by law;
+
+(iii) The details and/or existence of any unfulfilled repurchase request, any
+meetings or discussions regarding any unfulfilled repurchase request, mediations
+or arbitration proceedings conducted under this Section 10.13, including all
+offers, promises, conduct and statements, whether oral or written, made in the
+course of the parties’ attempt to resolve an unfulfilled repurchase request, any
+information exchanged in connection with any mediation, and any discovery taken
+in connection with any arbitration (collectively, “Confidential Information”),
+shall be and remain confidential and inadmissible (except disclosures required
+by Applicable Law) for any purpose, including impeachment, in any mediation,
+arbitration or litigation, or other proceeding (including any proceeding under
+this Section 10.13) other than as required to be disclosed in accordance with
+applicable law, regulatory requirements, or court order or to the extent that
+the Requested Party, in its sole discretion, elects to disclose such
+information. Such information will be kept strictly confidential and will not be
+disclosed or discussed with any third party, except that a party may disclose
+such information to its own attorneys, experts, accountants and other agents and
+representatives (collectively “Representatives”), as reasonably required in
+connection with any resolution procedure under this Section 10.13, and the Asset
+Representations Reviewer, if an Asset Review has been conducted, if the
+disclosing Party (a) directs such Representatives to keep the information
+confidential, (b) is responsible for any disclosure by its Representatives of
+such information and (c) takes at its sole expense all reasonable measures to
+restrain such Representatives from disclosing such information. If any party
+receives a subpoena or other request for information from a third party (other
+than a governmental regulatory body) for Confidential Information, the recipient
+will promptly notify the other party and will provide the other party with the
+opportunity to object to the production of its Confidential Information or seek
+other appropriate protective remedies, consistent with the applicable
+requirements of law and regulation. If, in the absence of a protective order,
+such party or any of its representatives are compelled as a matter of law,
+regulation, legal process or by regulatory authority to disclose any portion of
+the Confidential Information, such party may disclose to the party compelling
+disclosure only the part of such Confidential Information that is required to be
+disclosed.
+
+ 
+
+   61    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 10.14 Cooperation with Voting. Each of NMAC, the Seller and the Issuer
+hereby acknowledges and agrees that it shall reasonably cooperate with the
+Indenture Trustee to facilitate any vote by the Instituting Noteholders pursuant
+to terms of Section 7.08 of the Indenture.
+
+[Signature Page Follows]
+
+ 
+
+   62    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
+executed by their respective officers as of the day and year first above
+written.
+
+ 
+
+NISSAN AUTO RECEIVABLES 2020-A
+
+OWNER TRUST
+
+By:   WILMINGTON TRUST, NATIONAL ASSOCIATION,   not in its individual capacity
+but solely as   Owner Trustee on behalf of the Trust By:  
+
+ 
+
+  Name:   Title: NISSAN AUTO RECEIVABLES CORPORATION II, as Seller By:  
+
+ 
+
+  Name: Victor Pausin   Title: Treasurer NISSAN MOTOR ACCEPTANCE CORPORATION,
+individually and as Servicer By:  
+
+ 
+
+  Name: Kevin J. Cullum   Title: President
+
+U.S. BANK NATIONAL ASSOCIATION, not in
+
+its individual capacity but
+
+solely as Indenture Trustee
+
+By:  
+
+ 
+
+  Name:   Title:
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Schedule I
+
+REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE RECEIVABLES
+
+ 
+
+  (a)
+
+Characteristics of Receivables. Such Receivable
+
+ 
+
+  a.
+
+has been originated in the United States of America by a Dealer for the retail
+sale of a Financed Vehicle, has been fully and properly executed or
+authenticated by the parties thereto, and has been validly assigned by such
+Dealer to NMAC,
+
+ 
+
+  b.
+
+created a valid and enforceable security interest in favor of NMAC in such
+Financed Vehicle,
+
+ 
+
+  c.
+
+contains provisions that entitle the holder thereof to realize on the collateral
+as security,
+
+ 
+
+  d.
+
+provides for level monthly payments that fully amortize the Amount Financed over
+an original term of no greater than 75 payments, except that (i) the payment
+amount in the first or last month in the life of the Receivable may be minimally
+different from the level payment amount and (ii) the initial payment on such
+Receivable may have been deferred for up to 92 days, and
+
+ 
+
+  e.
+
+provides for interest at the related APR.
+
+ 
+
+  (b)
+
+Compliance with Law. Such Receivable complied at the time it was originated or
+made with all requirements of applicable federal, state and local laws, and
+regulations thereunder.
+
+ 
+
+  (c)
+
+Binding Obligation. Such Receivable represents the legal, valid and binding
+payment obligation in writing of the related Obligor, enforceable by the holder
+thereof in accordance with its terms subject to (i) the effect of bankruptcy,
+insolvency, reorganization, moratorium or other similar laws affecting
+creditors’ rights generally, (ii) the effect of general equitable principles and
+(iii) the potential unenforceability of waivers of jury trial provisions in
+certain states.
+
+ 
+
+  (d)
+
+Security Interest in Financed Vehicle. Immediately prior to the sale, assignment
+and transfer thereof to the Issuer, such Receivable was secured by a validly
+perfected first priority security interest in the Financed Vehicle in favor of
+NMAC as secured party or all necessary and appropriate actions shall have been
+commenced that would result in the valid perfection of a first priority security
+interest in the Financed Vehicle in favor of NMAC as secured party.
+
+ 
+
+  (e)
+
+Repossession. As of the Cut-off Date, according to the records of NMAC, the
+Financed Vehicle related to such Receivable has not been repossessed and the
+possession thereof not reinstated.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+  (f)
+
+Receivables in Force. The records of the Servicer do not reflect that such
+Receivable has been satisfied, subordinated or rescinded, nor that any Financed
+Vehicle has been released from the lien granted by the related Receivable in
+whole or in part.
+
+ 
+
+  (g)
+
+No Waiver. No provision of the Receivable has been waived in a manner that is
+prohibited by the provisions of Section 4.01.
+
+ 
+
+  (h)
+
+No Defenses. The records of the Servicer do not reflect that such Receivable is
+subject to any asserted or threatened right of rescission, setoff, counterclaim
+or defense.
+
+ 
+
+  (i)
+
+No Default. The records of the Servicer reflect that, except for payment
+defaults continuing for a period of not more than 29 days as of the Cut-off
+Date, no default, breach, violation or event permitting acceleration under the
+terms of such Receivable has occurred.
+
+ 
+
+  (j)
+
+Insurance. The Obligor is required under the terms of the related Receivable to
+maintain physical damage insurance covering the Financed Vehicle.
+
+ 
+
+  (k)
+
+Certificate of Title. The Receivable File related to such Receivable contains
+the original Certificate of Title (or a photocopy or image thereof) or evidence
+that an application for a Certificate of Title has been filed.
+
+ 
+
+  (l)
+
+Lawful Assignment. Such Receivable has not been originated in, or shall be
+subject to the laws of, any jurisdiction under which the sale, transfer and
+assignment of such Receivable under this Agreement are unlawful, void or
+voidable.
+
+ 
+
+  (m)
+
+Chattel Paper. Such Receivable constitutes either “tangible chattel paper” or
+“electronic chattel paper” as such terms are defined in the UCC.
+
+ 
+
+  (n)
+
+Simple Interest Receivables. Such Receivable is a Simple Interest Receivable.
+
+ 
+
+  (o)
+
+APR. The Annual Percentage Rate of such Receivable ranges from 0.00% to 11.83%.
+
+ 
+
+  (p)
+
+Maturity. As of the Cut-off Date, such Receivable had a remaining term to
+maturity of not less than 3 payments and not greater than 73 payments.
+
+ 
+
+  (q)
+
+First Payment. As of the Cut-off Date, the related Obligor has made the initial
+payment on such Receivable.
+
+ 
+
+  (r)
+
+Balance. Such Receivable had an original Principal Balance of not more than
+$84,932.38 and, as of the Cut-off Date, had a Principal Balance of not less than
+$1,999.58 and not more than $81,510.89.
+
+ 
+
+  (s)
+
+Delinquency. Such Receivable was not more than 29 days past due as of the
+Cut-off Date, and such Receivable has not been extended by more than two months.
+
+ 
+
+  (t)
+
+Bankruptcy. The records of the Servicer do not reflect that the related Obligor
+was the subject of a bankruptcy proceeding as of the Cut-off Date.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+  (u)
+
+Origination. Such Receivable has an origination date on or after March 12, 2014.
+
+ 
+
+  (v)
+
+Receivable Files. There is only one original executed copy of each “tangible
+record” constituting or forming a part of such Receivable that is tangible
+chattel paper and a single “authoritative copy” (as such term is used in
+Section 9-105 of the UCC) of each electronic record constituting or forming a
+part of such Receivable that is electronic chattel paper. The Receivable Files
+that constitute or evidence such Receivable do not have any marks or notations
+indicating that they have been pledged, assigned or otherwise conveyed by the
+Seller to any Person other than the Issuer.
+
+ 
+
+  (w)
+
+Forced-Placed Insurance Premiums. No contract relating to such Receivable has
+had forced-placed insurance premiums added to the amount financed.
+
+ 
+
+  (x)
+
+No Government Obligors. Such receivable shall not be due from the United States
+or any state, or from any agency, department subdivision or instrumentality
+thereof.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+[a101wla-811068xv3xcrossr001.jpg]
+CROSSROADS, SAN MATEO, CALIFORNIA OFFICE LEASE This Office Lease (the "Lease"),
+dated as of the date set forth in Section 1 of the Summary of Basic Lease
+Information (the "Summary"), below, is made by and between BCSP CROSSROADS
+PROPERTY LLC, a Delaware limited liability company ("Landlord"), and
+HEALTHEQUITY, INC., a Delaware corporation ("Tenant"). SUMMARY OF BASIC LEASE
+INFORMATION TERMS OF LEASE DESCRIPTION 1. Date: January 17, 2020 2. Premises
+(Article 1). 2.1 Building: 1825 South Grant Street San Mateo, California 94402
+2.2 Premises: Approximately 7,614 rentable square feet of space located on the
+seventh (7th) floor of the Building and commonly known as Suite 725, as further
+set forth in Exhibit A to the Office Lease. 2.3 Project: The Building and the
+adjacent buildings located at 1875 and 1855 South Grant Street, San Mateo,
+California 3. Lease Term (Article 2). 3.1 Length of Term: Three (3) years and
+one (1) month. 3.2 Lease Commencement March 1, 2020. Date: 3.3 Lease Expiration
+Date: The last day of the thirty-seventh (37th) full calendar month of the Lease
+Term. 4. Base Rent (Article 3): Monthly Base Monthly Rent Period During
+Annualized Installment per Rentable Lease Term Base Rent of Base Rent Square
+Foot Lease Months 1-12 $415,724.40 $34,643.70* $4.55 Lease Months 13-24
+$428,196.12 $35,683.01 $4.69 Lease Months 25-36 $441,042.00 $36,753.50 $4.83
+Lease Month 37 N/A $37,856.11 $4.97 * Subject to the Rent Abatement Period set
+forth in Section 3.2 below. CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr002.jpg]
+5. Tenant's Share (Article 4): Approximately 4.7304%. 6. Permitted Use (Article
+5): General office use consistent with a first-class office building. 7.
+Security Deposit (Article 21): $41,366.39. 8. Parking Pass Ratio (Article 28):
+3.3 unreserved parking passes for every 1,000 rentable square feet of the
+Premises, of which, subject to the terms of Article 28 of the Lease. 9. Address
+of Tenant HealthEquity, Inc. (Section 29.18): 15 W. Scenic Pointe Drive, Suite
+100 Draper, Utah 84020 Attention: General Counsel And with a required copy to:
+Colliers International 6440 South Millrock Drive, #500 Salt Lake City, Utah
+84121 Attention: Lora Munson, Executive Vice President 10. Address of Landlord
+(Section 29.18): See Section 29.18 of the Lease. 11. Brokers Jones Lang LaSalle
+and Cushman & Wakefield, (Section 29.24): representing Landlord and Colliers
+International, representing Tenant. 12. Improvement Allowance (Exhibit B):
+$15.00 per rentable square foot of the Premises. CROSSROADS 811068.04/WLA Office
+Lease 375985-00061/1-24-20/cb/ejs -2- [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr003.jpg]
+Page(s) ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS 1.1 Premises,
+Building, Project and Common Areas. 1.1.1 The Premises. Landlord hereby leases
+to Tenant and Tenant hereby leases from Landlord the premises set forth in
+Section 2.2 of the Summary (the "Premises"). The outline of the Premises is set
+forth in Exhibit A attached hereto. Landlord and Tenant hereby acknowledge and
+agree that the rentable square footage of the Premises is as set forth in
+Section 2.2 of the Summary, and that such rentable square footage shall not be
+subject to remeasurement or modification. The parties hereto agree that the
+lease of the Premises is upon and subject to the terms, covenants and conditions
+herein set forth, and Tenant covenants as a material part of the consideration
+for this Lease to keep and perform each and all of such terms, covenants and
+conditions by it to be kept and performed and that this Lease is made upon the
+condition of such performance. The parties hereto hereby acknowledge that the
+purpose of Exhibit A is to show the approximate location of the Premises in the
+"Building," as that term is defined in Section 1.1.2, below, only, and such
+Exhibit is not meant to constitute an agreement, representation or warranty as
+to the construction of the Premises, the precise area thereof or the specific
+location of the "Common Areas," as that term is defined in Section 1.1.3, below,
+or the elements thereof or of the accessways to the Premises or the "Project,"
+as that term is defined in Section 1.1.2, below. Except as specifically set
+forth in this Lease and in the Tenant Work Letter attached hereto as Exhibit B
+(the "Tenant Work Letter"), Tenant shall accept the Premises in their existing,
+"as is" condition, and Landlord shall not be obligated to provide or pay for any
+improvement work or services related to the improvement of the Premises. Tenant
+also acknowledges that neither Landlord nor any agent of Landlord has made any
+representation or warranty regarding the condition of the Premises, the Building
+or the Project or with respect to the suitability of any of the foregoing for
+the conduct of Tenant's business, except as specifically set forth in this Lease
+and the Tenant Work Letter. The taking of possession of the Premises by Tenant
+shall conclusively establish that the Premises and the Building were at such
+time in good and sanitary order, condition and repair, subject only to (i) to
+Landlord's obligation to complete any punch list items in accordance with
+Section 1.1 of the Tenant Work Letter, and (ii) Landlord's obligations set forth
+in Article 7 of this Lease with respect to the maintenance and repair of the
+Base Building (as defined in Section 8.2 of this Lease). 1.1.2 The Building and
+The Project. The Premises are a part of the building set forth in Section 2.1 of
+the Summary (the "Building"). The Building is part of an office project
+currently known as "Crossroads." The term "Project," as used in this Lease,
+shall mean (i) the Building and the Common Areas, (ii) adjacent office buildings
+as set forth in Section 2.3 of the Summary (the "Adjacent Buildings"), (iii) the
+associated parking areas, and (iv) the outside plaza areas and the land (which
+is improved with landscaping and other improvements) upon which the Building,
+Adjacent Buildings and the Common Areas are located, and (iv) at Landlord's
+discretion, any additional real property, areas, land, buildings or other
+improvements added thereto outside of the Project. 1.1.3 Common Areas. Tenant
+shall have the non-exclusive right to use in common with other tenants in the
+Project, and subject to the rules and regulations referred to in Article 5 of
+this Lease, those portions of the Project which are provided, from time to time,
+for use in common by Landlord, Tenant and any other tenants of the Project (such
+areas, together with such other portions of the Project designated by Landlord,
+in its discretion, including certain areas designated for the exclusive use of
+certain tenants, or to be shared by Landlord and certain tenants, are
+collectively referred to herein as the "Common Areas"). The Common Areas shall
+consist of the "Project Common Areas" and the "Building Common Areas." The term
+"Project Common Areas," as used in this Lease, shall mean the portion of the
+Project designated as such by Landlord. The term "Building Common Areas," as
+used in this Lease, shall mean the portions of the Common Areas located within
+the Building designated as such by Landlord. The manner in which the Common
+Areas are maintained and operated shall be at the sole discretion of Landlord
+and the use thereof shall be subject to such rules, regulations and restrictions
+as Landlord may make from time to time. Landlord reserves the right to close
+temporarily, make alterations or additions to, or change the location of
+elements of the Project and the Common Areas. CROSSROADS 811068.04/WLA Office
+Lease 375985-00061/1-24-20/cb/ejs (1) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr004.jpg]
+Page(s) 1.2 Temporary Premises. Commencing on February 18, 2020 (the "Temporary
+Premises Commencement Date") and continuing through and including the date (the
+"Temporary Premises Expiration Date") immediately preceding the earlier to occur
+of (a) the Landlord Work Substantial Completion Date, (b) the date that Tenant
+elects upon five (5) days' written notice to Landlord, to occupy the Premises
+from and after the Lease Commencement Date, notwithstanding the Substantial
+Completion Date has not yet occurred, and (c) April 30, 2020, Tenant shall lease
+approximately 3,437 rentable square feet of space located on the seventh (7th)
+floor of the Building, commonly known as Suite 700 and as more particularly set
+forth on Exhibit A-2, attached hereto (the "Temporary Premises") upon the terms
+and conditions set forth in this Section 1.2 and this Lease. The period of
+Tenant's lease of the Temporary Premises, commencing as of the Temporary
+Premises Commencement Date and continuing through and including the Temporary
+Premises Expiration Date, shall be referred to herein as the "Temporary Premises
+Term". Landlord and Tenant hereby acknowledge and agree that the rentable square
+footage of the Temporary Premises, as set forth herein, shall not be subject to
+re-measurement or modification. Tenant's lease of the Temporary Premises shall
+be upon all of the terms and conditions set forth in this Lease as though the
+Temporary Premises was the Premises, provided that (i) Tenant shall not be
+required to pay monthly Base Rent for the Temporary Premises, (ii) Tenant shall
+not be required to pay Tenant's Share of Direct Expenses for the Temporary
+Premises for the period commencing on the Temporary Premises Commencement Date
+and continuing through and including February 29, 2020, and following such
+period (to the extent the Temporary Premises Expiration Date has not occurred)
+Tenant shall pay all Direct Expenses attributable to the Temporary Premises,
+provided that Tenant's Share of the Temporary Premises shall be equal to
+2.1353%, (iii) Tenant shall have no right to alter or improve the Temporary
+Premises, (iv) Tenant shall have no right to sublease or otherwise transfer any
+interest in the Temporary Premises, and (v) Tenant shall accept the Temporary
+Premises in its existing, "as is" condition, the terms of the Tenant Work Letter
+shall be inapplicable to the Temporary Premises, and Landlord shall have no
+obligation to provide or pay for improvements of any kind with respect to the
+Temporary Premises. Tenant shall surrender the Temporary Premises upon the
+expiration of the Temporary Premises Term in the condition received (reasonable
+wear and tear excepted). Landlord shall have the right, at Tenant's sole cost
+and expense, to repair and restore the Premises to the condition existing prior
+to Landlord's delivery thereof to Tenant (reasonable wear and tear excepted).
+Any such amounts due to Landlord from Tenant hereunder shall be paid by Tenant
+within ten (10) days following demand. In the event that Tenant shall fail to
+timely vacate and surrender the Temporary Premises upon the expiration of the
+Temporary Premises Term, then the terms of Article 16 of this Lease shall be
+applicable (with the holdover rent due thereunder to be calculated as if Tenant
+had paid monthly Base Rent for the Temporary Premises during the Temporary
+Premises Term at the per rentable square foot rate payable by Tenant for the
+Premises as of the Lease Commencement Date). Landlord shall allow Tenant access
+to the Temporary Premises beginning on February 1, 2020 for the purpose of
+Tenant installing furniture, equipment or fixtures (including Tenant's data and
+telephone equipment and cabling) in the Temporary Premises. Prior to Tenant's
+entry into the Temporary Premises as permitted by the terms of this Paragraph,
+Tenant shall have submitted a schedule to Landlord for its approval, which
+schedule shall detail the timing and purpose of Tenant's entry. Tenant shall
+hold Landlord harmless from and indemnify, protect and defend Landlord against
+any loss or damage to the Building or Temporary Premises and against injury to
+any persons caused by Tenant's actions pursuant to this Paragraph. ARTICLE 2
+LEASE TERM 2.1 Lease Term. The terms and provisions of this Lease shall be
+effective as of the date of this Lease. The term of this Lease (the "Lease
+Term") shall be as set forth in Section 3.1 of the Summary, shall commence on
+the date set forth in Section 3.2 of the Summary (the "Lease Commencement
+Date"), and shall terminate on the date set forth in Section 3.3 of the Summary
+(the "Lease Expiration Date") unless this Lease is sooner terminated as
+hereinafter provided. Tenant hereby acknowledges that the Premises are currently
+occupied by another tenant of the Building. If Landlord is unable for any reason
+to deliver possession of the Premises to Tenant on any specific date, then
+Landlord shall not be subject to any liability for its failure to do so, and
+such failure shall not affect the validity of this Lease or the obligations of
+Tenant hereunder. For purposes of this Lease, the term "Lease Month" shall mean
+each succeeding calendar month during the Lease Term; provided that the first
+Lease Month shall commence on the Lease Commencement Date and shall end on the
+last day of the first (1st) full calendar month of the Lease Term and that the
+last Lease Month shall expire on the Lease Expiration Date. At any time during
+the Lease Term, Landlord CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (2) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr005.jpg]
+Page(s) may deliver to Tenant a notice in the form as set forth in Exhibit C,
+attached hereto, as a confirmation only of the information set forth therein,
+which Tenant shall execute and return to Landlord within five (5) days of
+receipt thereof. 2.2 Option Term. 2.2.1 Option Right. Landlord hereby grants to
+the originally named Tenant herein ("Original Tenant") one (1) option to extend
+the Lease Term for a period of three (3) years (the "Option Term"), which option
+shall be exercisable only by written notice delivered by Tenant to Landlord as
+provided in Section 2.2.3 below, provided that the following conditions (the
+"Option Conditions") are satisfied: (i) as of the date of delivery of such
+notice, Tenant is not in default under this Lease; (ii) Tenant is not in default
+under this Lease at the time Landlord and Tenant execute an amendment to this
+Lease extending the Lease Term for the Option Term, and as of the end of the
+Lease Term, Tenant is not in default under this Lease; (iii) Tenant has not
+previously been in default under this Lease more than once; and (iv) the Lease
+then remains in full force and effect and Original Tenant occupies the entire
+Premises at the time the option to extend is exercised and as of the
+commencement of the Option Term. Landlord may, at Landlord's option, exercised
+in Landlord's sole and absolute discretion, waive any of the Option Conditions
+in which case the option, if otherwise properly exercised by Tenant, shall
+remain in full force and effect. Upon the proper exercise of such option to
+extend, and provided that Tenant satisfies all of the Option Conditions (except
+those, if any, which are waived by Landlord), the Lease Term, as it applies to
+the Premises, shall be extended for a period of three (3) years. The rights
+contained in this Section 2.2 shall be personal to Original Tenant and may be
+exercised by Original Tenant only (and not by any assignee, sublessee or other
+"Transferee," as that term is defined in Section 14.1 of this Lease, of Tenant's
+interest in this Lease). 2.2.2 Option Rent. The rent payable by Tenant during
+the Option Term (the "Option Rent") shall be equal to the "Fair Market Rent", as
+defined below, for the Premises as of the commencement of the Option Term. As
+used herein, the "Fair Market Rent" shall mean the rent (including additional
+rent and considering any "base year" or "expense stop" applicable thereto),
+including all escalations, at which tenants, as of the commencement of the
+Option Term, are leasing non-expansion, non-sublease, non-encumbered, non-equity
+space comparable in size, location and quality to the Premises, for a similar
+lease term, which comparable space is located in the Project and in the
+"Comparable Buildings," as that term is defined, below and which comparable
+transactions (collectively, the "Comparable Transactions") are entered into
+within the six (6) month period immediately preceding Landlord's delivery of the
+Option Rent Notice (as defined in Section 2.2.3 below), and taking into
+consideration only the following concessions (the "Concessions"): (a) rental
+abatement concessions, if any, being granted such tenants in connection with
+such comparable space, (b) tenant improvements or allowances provided or to be
+provided for such comparable space, taking into account, and deducting the value
+of, the existing improvements in the Premises, such value to be based upon the
+age, quality and layout of the improvements and the extent to which the same
+could be utilized by a typical general office user, and (c) other reasonable
+monetary concessions being granted such tenants in connection with such
+comparable space; provided, however, that in calculating the Option Rent, no
+consideration shall be given to (i) the fact that Landlord is or is not required
+to pay a real estate brokerage commission in connection with Tenant's exercise
+of its right to lease the Premises during the Option Term or in connection with
+the Comparable Transactions or the fact that landlords are or are not paying
+real estate brokerage commissions in connection with such Comparable
+Transactions, and (ii) any period of rental abatement, if any, granted to
+tenants in Comparable Transactions in connection with the design, permitting and
+construction of tenant improvements in such comparable spaces. The Option Rent
+shall additionally include a determination as to whether, and if so to what
+extent, Tenant must provide Landlord with financial security, such as a letter
+of credit or guaranty, for Tenant's Rent obligations during the applicable
+Option Term. Such determination shall be made by reviewing the extent of
+financial security then generally being imposed in Comparable Transactions from
+tenants of comparable financial condition and credit history to the then
+existing financial condition and credit history of Tenant (with appropriate
+adjustments to account for differences in the then-existing financial condition
+of Tenant and such other tenants). If in determining the Option Rent a tenant
+improvement allowance is granted under item (b) above, Landlord may, at
+Landlord's sole option, elect any or a portion of the following: (A) to grant
+some or all of the Concessions to Tenant in the form as described above (i.e.,
+as free rent or as an improvement allowance), and (B) to adjust the rental rate
+component of the Option Rent to be an effective rental rate which takes into
+consideration the total dollar value of the Concessions (in which case the
+Concessions evidenced in the effective rental rate shall not be granted to
+Tenant). For purposes of this Lease, the term “Comparable Buildings” shall mean
+Class A office properties which are substantially similar in size, construction
+quality, age, and use, and are located within the City of San Mateo, Foster
+City, and Redwood Shores. CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (3) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr006.jpg]
+Page(s) Notwithstanding anything to the contrary contained in this Section 2.2.2
+above, if there are not a sufficient number of Comparable Transactions with a
+comparable lease term to the Option Term to determine the Fair Market Rent for a
+lease of such duration, then the Fair Market Rent for purposes of this Section
+2.2 shall be equal to that of Comparable Transactions with a term of five (5)
+years, provided that the Concessions shall be appropriately prorated on a
+fractional basis to account for the difference between the Option Term and the
+lease terms of the Comparable Transactions. 2.2.3 Exercise of Option. The option
+contained in this Section 2.2 shall be exercised by Tenant, if at all, only in
+the following manner: Tenant shall deliver written notice to Landlord of its
+intention to extend the Lease Term not more than twelve (12) months and not less
+than nine (9) months prior to the expiration of the initial Lease Term (the
+"Option Interest Notice"). Landlord, within thirty (30) days after receipt of
+Tenant's Option Interest Notice, shall deliver notice (the "Option Rent Notice")
+to Tenant setting forth the Option Rent. If Tenant wishes to exercise such
+option, Tenant shall, on or before the date occurring thirty (30) days after
+Tenant's receipt of the Option Rent Notice, exercise the option by delivering
+written notice thereof to Landlord (the "Option Exercise Notice"). Concurrently
+with Tenant's delivery of the Option Exercise Notice, Tenant may, at its option,
+object to the Option Rent contained in the Option Rent, in which case the
+parties shall follow the procedure, and the Option Rent shall be determined, as
+set forth in Section 2.2.4 below. If Tenant fails to so object, then the Option
+Rent shall be as set forth in the Option Rent Notice. If Tenant fails to deliver
+the Option Exercise Notice by the date set forth above for such delivery, Tenant
+shall be deemed to have waived its right to extend the Lease Term pursuant to
+this Section 2.2. 2.2.4 Determination of Option Rent. In the event Tenant timely
+and appropriately objects to the Option Rent, Landlord and Tenant shall attempt
+to agree upon the Option Rent using their best good-faith efforts. If Landlord
+and Tenant fail to reach agreement within thirty (30) days following Tenant's
+objection to the Option Rent, (the "Outside Agreement Date"), then each party
+shall make a separate determination of the Option Rent, as the case may be,
+within thirty (30) days, and such determinations shall be submitted to
+arbitration in accordance with Sections 2.2.4.1 through 2.2.4.7 below. 2.2.4.1
+Landlord and Tenant shall each appoint one arbitrator who shall by profession be
+a real estate broker, lawyer or appraiser who shall have been active over the
+five (5) year period ending on the date of such appointment in the leasing (or
+appraisal, as the case may be) of commercial office properties in San Mateo and
+surrounding areas. The determination of the arbitrators shall be limited solely
+to the issue of whether Landlord's or Tenant's submitted Option Rent, is the
+closest to the actual Option Rent as determined by the arbitrators, taking into
+account the requirements of Section 2.2.3 of this Lease. Each such arbitrator
+shall be appointed within fifteen (15) days after the Outside Agreement Date.
+2.2.4.2 The two arbitrators so appointed shall within ten (10) days of the date
+of the appointment of the last appointed arbitrator agree upon and appoint a
+third arbitrator who shall be qualified under the same criteria set forth
+hereinabove for qualification of the initial two arbitrators. 2.2.4.3 The three
+arbitrators shall within thirty (30) days of the appointment of the third
+arbitrator reach a decision as to whether the parties shall use Landlord's or
+Tenant's submitted Option Rent, and shall notify Landlord and Tenant thereof.
+2.2.4.4 The decision of the majority of the three arbitrators shall be binding
+upon Landlord and Tenant. 2.2.4.5 If either Landlord or Tenant fails to appoint
+an arbitrator within fifteen (15) days after the applicable Outside Agreement
+Date, the arbitrator appointed by one of them shall reach a decision, notify
+Landlord and Tenant thereof, and such arbitrator's decision shall be binding
+upon Landlord and Tenant. 2.2.4.6 If the two arbitrators fail to agree upon and
+appoint a third arbitrator, or both parties fail to appoint an arbitrator, then
+the appointment of the third arbitrator or any arbitrator shall be dismissed and
+the matter to be decided shall be forthwith submitted to arbitration under the
+provisions of the JAMS, but subject to the instruction set forth in this Section
+2.2.4. CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (4)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr007.jpg]
+Page(s) 2.2.4.7 The cost of arbitration shall be paid by Landlord and Tenant
+equally. ARTICLE 3 BASE RENT 3.1 In General. Tenant shall pay, without prior
+notice or demand, to Landlord or Landlord's agent at the management office of
+the Project, or, at Landlord's option, at such other place as Landlord may from
+time to time designate in writing, by a check for currency which, at the time of
+payment, is legal tender for private or public debts in the United States of
+America, base rent ("Base Rent") as set forth in Section 4 of the Summary,
+payable in equal monthly installments as set forth in Section 4 of the Summary
+in advance on or before the first day of each and every calendar month during
+the Lease Term, without any setoff or deduction whatsoever. On or before the
+date that is ten (10) days following Tenant's execution and delivery of this
+Lease to Landlord, Tenant shall pay to Landlord an amount equal to $48,348.90,
+which amount shall be applied to the first Base Rent and Tenant's Share of
+"Direct Expenses," as that term is defined in Section 4.2.2, below, due under
+this Lease following the Rent Abatement Period set forth in Section 3.2 below.
+If any Rent payment date (including the Lease Commencement Date) falls on a day
+of the month other than the first day of such month or if any payment of Rent is
+for a period which is shorter than one month, the Rent for any fractional month
+shall accrue on a daily basis for the period from the date such payment is due
+to the end of such calendar month or to the end of the Lease Term at a rate per
+day which is equal to 1/365 of the applicable annual Rent. All other payments or
+adjustments required to be made under the terms of this Lease that require
+proration on a time basis shall be prorated on the same basis. 3.2 Abated Base
+Rent. Provided that Tenant is not then in default under the terms of this Lease,
+then Tenant shall not be obligated to pay the Base Rent otherwise attributable
+to the Premises (the "Rent Abatement") during the first full calendar month of
+the Lease Term (the "Rent Abatement Period"). Landlord and Tenant acknowledge
+that the aggregate amount of the Base Rent Abatement equals $34,643.70
+"Abatement Amount". Tenant acknowledges and agrees that the foregoing Rent
+Abatement has been granted to Tenant as additional consideration for entering
+into this Lease, and for agreeing to pay the Rent and perform the terms and
+conditions otherwise required under this Lease. If Tenant shall be in default
+under this Lease and shall fail to cure such default within the notice and cure
+period, if any, permitted for cure pursuant to this Lease, then Landlord may at
+its option, elect, in addition to any other remedies Landlord may have under
+this Lease, the following remedy: that the dollar amount of the unapplied
+portion of the Rent Abatement as of such default shall be converted to a credit
+to be applied to the Base Rent applicable at the end of the Lease Term and
+Tenant shall immediately be obligated to begin paying Base Rent for the Premises
+in full. ARTICLE 4 ADDITIONAL RENT 4.1 General Terms. In addition to paying the
+Base Rent specified in Article 3 of this Lease, Tenant shall pay "Tenant's
+Share" of the annual "Direct Expenses," as those terms are defined in Sections
+4.2.6 and 4.2.2 of this Lease, respectively. Such payments by Tenant, together
+with any and all other amounts payable by Tenant to Landlord pursuant to the
+terms of this Lease, are hereinafter collectively referred to as the "Additional
+Rent", and the Base Rent and the Additional Rent are herein collectively
+referred to as "Rent." All amounts due under this Article 4 as Additional Rent
+shall be payable for the same periods and in the same manner as the Base Rent.
+Without limitation on other obligations of Tenant which survive the expiration
+of the Lease Term, the obligations of Tenant to pay the Additional Rent provided
+for in this Article 4 shall survive the expiration of the Lease Term. 4.2
+Definitions of Key Terms Relating to Additional Rent. As used in this Article 4,
+the following terms shall have the meanings hereinafter set forth: 4.2.1
+"Tenant's Share " shall mean the amount set forth in Section 5 of the Summary.
+4.2.2 ""Direct Expenses" shall mean "Operating Expenses" and "Tax Expenses."
+CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (5)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr008.jpg]
+Page(s) 4.2.3 "Expense Year" shall mean each calendar year in which any portion
+of the Lease Term falls, through and including the calendar year in which the
+Lease Term expires, provided that Landlord, upon notice to Tenant, may change
+the Expense Year from time to time to any other twelve (12) consecutive month
+period, and, in the event of any such change, Tenant's Share of Direct Expenses
+shall be equitably adjusted for any Expense Year involved in any such change.
+4.2.4 "Operating Expenses" shall mean all expenses, costs and amounts of every
+kind and nature which Landlord pays or accrues during any Expense Year because
+of or in connection with the ownership, management, maintenance, security,
+repair, restoration or operation of the Project, or any portion thereof. Without
+limiting the generality of the foregoing, Operating Expenses shall specifically
+include any and all of the following: (i) the cost of supplying all utilities,
+the cost of operating, repairing, maintaining, and renovating the utility,
+telephone, mechanical, sanitary, storm drainage, and elevator systems, and the
+cost of maintenance and service contracts in connection therewith; (ii) the cost
+of licenses, certificates, permits and inspections for the Project and the cost
+of contesting any governmental enactments which may affect Operating Expenses,
+and the costs incurred in connection with a governmentally mandated
+transportation system management program or similar program; (iii) the cost of
+all insurance carried by Landlord in connection with the Project as reasonably
+determined by Landlord; (iv) the cost of landscaping, relamping, and all
+supplies, tools, equipment and materials used in the operation, repair and
+maintenance of the Project, or any portion thereof; (v) the cost of parking area
+operation, repair, restoration, and maintenance; (vi) fees and other costs,
+including management fees, consulting fees, legal fees and accounting fees, of
+all contractors and consultants in connection with the management, operation,
+maintenance and repair of the Project; (vii) payments under any equipment rental
+agreements and the fair rental value of any management office space and tenant
+amenity spaces; (viii) subject to item (f), below, wages, salaries and other
+compensation and benefits, including taxes levied thereon, of all persons
+engaged in the operation, maintenance and security of the Project; (ix) costs
+under any instrument pertaining to the sharing of costs by the Project; (x)
+operation, repair, maintenance and replacement of all systems and equipment and
+components thereof of the Project; (xi) the cost of janitorial, alarm, security
+and other services, replacement of wall and floor coverings, ceiling tiles and
+fixtures in common areas, maintenance and replacement of curbs and walkways,
+repair to roofs and re-roofing; (xii) amortization (including interest on the
+unamortized cost) over such period of time as Landlord shall reasonably
+determine, of the cost of acquiring or the rental expense of personal property
+used in the maintenance, operation and repair of the Project, or any portion
+thereof; (xiii) the cost of capital improvements or other costs incurred in
+connection with the Project (A) which are intended to effect economies in the
+operation or maintenance of the Project, or any portion thereof, or to reduce
+current or future Operating Expenses or to enhance or improve the safety or
+security of the Project (including without limitation the communication systems)
+or its occupants, (B) that are required to comply with present or anticipated
+conservation programs, (C) which are replacements or modifications of
+nonstructural items located in the Common Areas required to keep the Common
+Areas in good order or condition, or (D) that are required under any
+governmental law or regulation; provided, however, that any capital expenditure
+shall be amortized (including interest on the amortized cost) over its
+reasonable useful life as Landlord shall reasonably determine consistent with
+sound real estate accounting principles; and (xiv) costs, fees, charges or
+assessments imposed by, or resulting from any mandate imposed on Landlord by,
+any federal, state or local government for fire and police protection, trash
+removal, community services, or other services which do not constitute "Tax
+Expenses" as that term is defined in Section 4.2.5, below, (xv) market rental
+and expenses to operate, maintain and repair amenities and programming provided
+by Landlord for the benefit of tenants; (xvi) cost of tenant relation programs
+reasonably established by Landlord, and (xvii) payments under any easement,
+license, operating agreement, declaration, restrictive covenant, or instrument
+pertaining to the sharing of costs by the Building, including, without
+limitation, any covenants, conditions and restrictions affecting the property,
+and reciprocal easement agreements affecting the property, any parking licenses,
+and any agreements with transit agencies affecting the Project (collectively,
+"Underlying Documents"). Notwithstanding the foregoing, for purposes of this
+Lease, Operating Expenses shall not, however, include: (a) costs, including
+legal fees, space planners' fees, advertising and promotional expenses (except
+as otherwise set forth above), and brokerage fees incurred in connection with
+the original construction or development, or original or future leasing of the
+Project, and costs, including permit, license and inspection costs, incurred
+with respect to the installation of tenant improvements made for new tenants
+initially occupying space in the Project after the Lease Commencement Date or
+incurred in renovating or otherwise improving, decorating, painting or
+redecorating vacant space for tenants or other occupants of the CROSSROADS
+811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (6) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr009.jpg]
+Page(s) Project (including, without limitation, "spec suites") (excluding,
+however, such costs relating to any common areas of the Project or parking
+facilities); (b) except as set forth in items (xii), (xiii), and (xiv) above,
+depreciation, interest and principal payments on mortgages and other debt costs,
+if any, penalties and interest, costs of capital repairs and alterations, and
+costs of capital improvements and equipment; (c) costs for which the Landlord is
+reimbursed by any tenant or occupant of the Project or by insurance by its
+carrier or any tenant's carrier or by anyone else, and electric power costs for
+which any tenant directly contracts with the local public service company; (d)
+any bad debt loss, rent loss, or reserves for bad debts or rent loss; (e) costs
+associated with the operation of the business of the partnership or entity which
+constitutes the Landlord, as the same are distinguished from the costs of
+operation of the Project (which shall specifically include, but not be limited
+to, accounting costs associated with the operation of the Project). Costs
+associated with the operation of the business of the partnership or entity which
+constitutes the Landlord include costs of partnership accounting and legal
+matters, costs of defending any lawsuits with any mortgagee (except as the
+actions of the Tenant may be in issue), costs of selling, syndicating,
+financing, mortgaging or hypothecating any of the Landlord's interest in the
+Project, and costs incurred in connection with any disputes between Landlord and
+its employees, between Landlord and Project management, or between Landlord and
+other tenants or occupants; (f) the wages and benefits of any employee who does
+not devote substantially all of his or her employed time to the Project unless
+such wages and benefits are prorated to reflect time spent on operating and
+managing the Project vis-a-vis time spent on matters unrelated to operating and
+managing the Project; provided, that in no event shall Operating Expenses for
+purposes of this Lease include salaries and all other compensation (including
+fringe benefits) of persons generally considered to be higher in rank than the
+position of a person, regardless of title, who supervises property managers that
+manage the Project and other projects of Landlord and affiliates of Landlord;
+(g) amount paid as ground rental for the Project by the Landlord; (h) except for
+a Project management fee, overhead and profit increment paid to the Landlord or
+to subsidiaries or affiliates of the Landlord for services in the Project to the
+extent the same exceeds the costs of such services rendered by qualified,
+first-class unaffiliated third parties on a competitive basis; (i) any
+compensation paid to clerks, attendants or other persons in commercial
+concessions operated by the Landlord, provided that any compensation paid to any
+concierge at the Project shall be includable as an Operating Expense; (j)
+rentals and other related expenses incurred in leasing air conditioning systems,
+elevators or other equipment which if purchased the cost of which would be
+excluded from Operating Expenses as a capital cost, except equipment not affixed
+to the Project which is used in providing janitorial or similar services and,
+further excepting from this exclusion such equipment rented or leased to remedy
+or ameliorate an emergency condition in the Project; (k) all items and services
+for which Tenant or any other tenant in the Project reimburses Landlord or which
+Landlord provides selectively to one or more tenants (other than Tenant) without
+reimbursement; (l) any costs expressly excluded from Operating Expenses
+elsewhere in this Lease; CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (7) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr010.jpg]
+Page(s) (m) rent for any office space occupied by Project management personnel
+to the extent the size or rental rate of such office space exceeds the size or
+fair market rental value of office space occupied by management personnel of the
+comparable buildings in the vicinity of the Building, with adjustment where
+appropriate for the size of the applicable project; (n) costs arising from the
+gross negligence or willful misconduct of Landlord or its agents, employees,
+vendors, contractors, or providers of materials or services; (o) costs incurred
+to comply with laws relating to the removal of hazardous material (as defined
+under applicable law) which was in existence in the Building or on the Project
+prior to the Lease Commencement Date, and was of such a nature that a federal,
+State or municipal governmental authority, if it had then had knowledge of the
+presence of such hazardous material, in the state, and under the conditions that
+it then existed in the Building or on the Project, would have then required the
+removal of such hazardous material or other remedial or containment action with
+respect thereto; and costs incurred to remove, remedy, contain, or treat
+hazardous material, which hazardous material is brought into the Building or
+onto the Project after the date hereof by Landlord or any other tenant of the
+Project and is of such a nature, at that time, that a federal, State or
+municipal governmental authority, if it had then had knowledge of the presence
+of such hazardous material, in the state, and under the conditions, that it then
+exists in the Building or on the Project, would have then required the removal
+of such hazardous material or other remedial or containment action with respect
+thereto; (p) entertainment and travel expenses for any purpose not directly
+related to the operations and management of the Building; (q) rentals and other
+related expenses incurred in leasing air conditioning systems, elevators or
+other equipment which if purchased the cost of which would be excluded from
+Operating Expenses as a capital cost, except equipment not affixed to the
+Project which is used in providing janitorial or similar services and, further
+excepting from this exclusion such equipment rented or leased to remedy or
+ameliorate an emergency condition in the Project; and (r) costs arising from
+Landlord's charitable or political contributions. If Landlord is not furnishing
+any particular work or service (the cost of which, if performed by Landlord,
+would be included in Operating Expenses) to a tenant who has undertaken to
+perform such work or service in lieu of the performance thereof by Landlord,
+Operating Expenses shall be deemed to be increased by an amount equal to the
+additional Operating Expenses which would reasonably have been incurred during
+such period by Landlord if it had at its own expense furnished such work or
+service to such tenant. If the Project is not one hundred percent (100%)
+occupied during all or a portion of any Expense Year, Landlord shall make an
+appropriate adjustment to the components of Operating Expenses for such year to
+determine the amount of Operating Expenses that would have been incurred had the
+Project been one hundred percent (100%) occupied; and the amount so determined
+shall be deemed to have been the amount of Operating Expenses for such year.
+4.2.5 Taxes. 4.2.5.1 "Tax Expenses" shall mean all federal, state, county, or
+local governmental or municipal taxes, fees, charges or other impositions of
+every kind and nature, whether general, special, ordinary or extraordinary,
+(including, without limitation, real estate taxes, general and special
+assessments, transit taxes, leasehold taxes or taxes based upon the receipt of
+rent, including gross receipts or sales taxes applicable to the receipt of rent,
+unless required to be paid by Tenant, personal property taxes imposed upon the
+fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances,
+furniture and other personal property used in connection with the Project, or
+any portion thereof), which shall be paid or accrued during any Expense Year
+(without regard to any different fiscal year used by such governmental or
+municipal authority) because of or in connection with the ownership, leasing and
+operation of the Project, or any portion thereof. CROSSROADS 811068.04/WLA
+Office Lease 375985-00061/1-24-20/cb/ejs (8) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr011.jpg]
+Page(s) 4.2.5.2 Tax Expenses shall include, without limitation: (i) Any tax on
+the rent, right to rent or other income from the Project, or any portion
+thereof, or as against the business of leasing the Project, or any portion
+thereof; (ii) Any assessment, tax, fee, levy or charge in addition to, or in
+substitution, partially or totally, of any assessment, tax, fee, levy or charge
+previously included within the definition of real property tax, it being
+acknowledged by Tenant and Landlord that Proposition 13 was adopted by the
+voters of the State of California in the June 1978 election ("Proposition 13")
+and that assessments, taxes, fees, levies and charges may be imposed by
+governmental agencies for such services as fire protection, street, sidewalk and
+road maintenance, refuse removal and for other governmental services formerly
+provided without charge to property owners or occupants, and, in further
+recognition of the decrease in the level and quality of governmental services
+and amenities as a result of Proposition 13, Tax Expenses shall also include any
+governmental or private assessments or the Project's contribution towards a
+governmental or private cost-sharing agreement for the purpose of augmenting or
+improving the quality of services and amenities normally provided by
+governmental agencies; (iii) any tax or assessment levied in connection with
+Metrorail or any similar transportation system; (iv) Any assessment, tax, fee,
+levy, or charge allocable to or measured by the area of the Premises or the Rent
+payable hereunder, including, without limitation, any business or gross income
+tax or excise tax with respect to the receipt of such rent, or upon or with
+respect to the possession, leasing, operating, management, maintenance,
+alteration, repair, use or occupancy by Tenant of the Premises, or any portion
+thereof; and (v) Any assessment, tax, fee, levy or charge, upon this transaction
+or any document to which Tenant is a party, creating or transferring an interest
+or an estate in the Premises. 4.2.5.3 Any costs and expenses (including, without
+limitation, reasonable attorneys' and consultants' fees) incurred in attempting
+to protest, reduce or minimize Tax Expenses shall be included in Tax Expenses in
+the Expense Year such expenses are incurred. Tax refunds shall be credited
+against Tax Expenses and refunded to Tenant regardless of when received, based
+on the Expense Year to which the refund is applicable, provided that in no event
+shall the amount to be refunded to Tenant for any such Expense Year exceed the
+total amount paid by Tenant as Additional Rent under this Article 4 for such
+Expense Year. Notwithstanding anything to the contrary set forth in this Lease,
+(a) only Landlord may institute proceedings to reduce Tax Expenses and the
+filing of any such proceeding by Tenant without Landlord's consent shall
+constitute an event of default by Tenant under this Lease, and (b) Landlord
+shall not be obligated to file any application or institute any proceeding
+seeking a reduction in Tax Expenses. If Tax Expenses for any period during the
+Lease Term or any extension thereof are increased after payment thereof for any
+reason, including, without limitation, error or reassessment by applicable
+governmental or municipal authorities, Tenant shall pay Landlord upon demand
+Tenant's Share of any such increased Tax Expenses. Notwithstanding anything to
+the contrary contained in this Section 4.2.5 (except as set forth in Section
+4.2.5.1, above), there shall be excluded from Tax Expenses (i) all excess
+profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and
+succession taxes, estate taxes, federal and state income taxes, and other taxes
+to the extent applicable to Landlord's general or net income (as opposed to
+rents, receipts or income attributable to operations at the Project), (ii) any
+items included as Operating Expenses, and (iii) any items paid by Tenant under
+Section 4.5 of this Lease. 4.3 Allocation of Expenses. 4.3.1 Method of
+Allocation. The parties acknowledge that the Building is a part of a multi-
+building project and that the costs and expenses incurred in connection with the
+Project (i.e., the Direct Expenses) should be shared between the tenants of the
+Building and the tenants of the Adjacent Buildings. Accordingly, as set forth in
+Section 4.2 above, Direct Expenses (which consists of Operating Expenses and Tax
+Expenses) are determined annually for the Project as a whole, and a portion of
+the Direct Expenses, which portion shall be determined by Landlord on an
+equitable basis, shall be allocated to the tenants of the Building (as opposed
+to the tenants of Adjacent Buildings) and such portion shall be the Building
+Direct Expenses for purposes of this Lease. Such portion of Direct Expenses
+allocated to the tenants of the Building shall include all Direct Expenses
+attributable solely to the Building and an equitable portion of the Direct
+Expenses attributable to the Project as a whole. 4.3.2 Cost Pools. Landlord
+shall have the right, from time to time, to equitably allocate some or all of
+the Direct Expenses for the Project among different portions or occupants of the
+Project (the "Cost Pools"), in Landlord's reasonable discretion. Such Cost Pools
+may include, but shall not be limited to, the office space tenants of a building
+of the Project or of the Project, and the retail space tenants of a building of
+the Project or of the Project. The Direct Expenses within each such Cost Pool
+shall be allocated and charged to the tenants within such Cost Pool in an
+equitable manner. CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (9) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr012.jpg]
+Page(s) 4.4 Calculation and Payment of Additional Rent. Tenant shall pay to
+Landlord, in the manner set forth in Section 4.4.1, below, and as Additional
+Rent, an amount equal to Tenant's Share of Direct Expenses. 4.4.1 Statement of
+Actual Direct Expenses and Payment by Tenant. Landlord shall endeavor to give to
+Tenant following the end of each Expense Year, a statement (the "Statement")
+which shall state the Direct Expenses incurred or accrued for such preceding
+Expense Year, and which shall indicate the amount of Tenant's Share of Direct
+Expenses. Upon receipt of the Statement for each Expense Year commencing or
+ending during the Lease Term, Tenant shall pay, with its next installment of
+Base Rent due, the full amount of Tenant's Share of Direct Expenses for such
+Expense Year, less the amounts, if any, paid during such Expense Year as
+"Estimated Direct Expenses," as that term is defined in Section 4.4.2, below,
+and if Tenant paid more as Estimated Direct Expenses than the actual Tenant's
+Share of Direct Expenses, Tenant shall receive a credit in the amount of
+Tenant's overpayment against Rent next due under this Lease. The failure of
+Landlord to timely furnish the Statement for any Expense Year shall not
+prejudice Landlord or Tenant from enforcing its rights under this Article 4.
+Even though the Lease Term has expired and Tenant has vacated the Premises, when
+the final determination is made of Tenant's Share of Direct Expenses for the
+Expense Year in which this Lease terminates, Tenant shall immediately pay to
+Landlord Tenant's Share of Direct Expenses, and if Tenant paid more as Estimated
+Direct Expenses than the actual Tenant's Share of Direct Expenses, Landlord
+shall, within thirty (30) days, deliver a check payable to Tenant in the amount
+of the overpayment. The provisions of this Section 4.4.1 shall survive the
+expiration or earlier termination of the Lease Term. 4.4.2 Statement of
+Estimated Direct Expenses. In addition, Landlord shall endeavor to give Tenant a
+yearly expense estimate statement (the "Estimate Statement") which shall set
+forth Landlord's reasonable estimate (the "Estimate") of what the total amount
+of Direct Expenses for the then-current Expense Year shall be and the estimated
+Tenant's Share of Direct Expenses (the "Estimated Direct Expenses"). The failure
+of Landlord to timely furnish the Estimate Statement for any Expense Year shall
+not preclude Landlord from enforcing its rights to collect any Estimated Direct
+Expenses under this Article 4, nor shall Landlord be prohibited from revising
+any Estimate Statement or Estimated Direct Expenses theretofore delivered to the
+extent necessary. Thereafter, Tenant shall pay, with its next installment of
+Base Rent due, a fraction of the Estimated Direct Expenses for the then-current
+Expense Year (reduced by any amounts paid pursuant to the last sentence of this
+Section 4.4.2). Such fraction shall have as its numerator the number of months
+which have elapsed in such current Expense Year, including the month of such
+payment, and twelve (12) as its denominator. Until a new Estimate Statement is
+furnished (which Landlord shall have the right to deliver to Tenant at any
+time), Tenant shall pay monthly, with the monthly Base Rent installments, an
+amount equal to one-twelfth (1/12) of the total Estimated Direct Expenses set
+forth in the previous Estimate Statement delivered by Landlord to Tenant. 4.5
+Taxes and Other Charges for Which Tenant Is Directly Responsible. 4.5.1 Tenant
+shall be liable for and shall pay ten (10) days before delinquency, taxes levied
+against Tenant's equipment, furniture, fixtures and any other personal property
+located in or about the Premises. If any such taxes on Tenant's equipment,
+furniture, fixtures and any other personal property are levied against Landlord
+or Landlord's property or if the assessed value of Landlord's property is
+increased by the inclusion therein of a value placed upon such equipment,
+furniture, fixtures or any other personal property and if Landlord pays the
+taxes based upon such increased assessment, which Landlord shall have the right
+to do regardless of the validity thereof but only under proper protest if
+requested by Tenant, Tenant shall upon demand repay to Landlord the taxes so
+levied against Landlord or the proportion of such taxes resulting from such
+increase in the assessment, as the case may be. 4.5.2 If the tenant improvements
+in the Premises, whether installed and/or paid for by Landlord or Tenant and
+whether or not affixed to the real property so as to become a part thereof, are
+assessed for real property tax purposes at a valuation higher than the valuation
+at which tenant improvements conforming to Landlord's "building standard" in
+other space in the Building are assessed, then the Tax Expenses levied against
+Landlord or the property by reason of such excess assessed valuation shall be
+deemed to be taxes levied against personal property of Tenant and shall be
+governed by the provisions of Section 4.5.1, above. 4.5.3 Notwithstanding any
+contrary provision herein, Tenant shall pay prior to delinquency any (i) rent
+tax or sales tax, service tax, transfer tax or value added tax, or any other
+applicable tax on the rent or services CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (10) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr013.jpg]
+Page(s) herein or otherwise respecting this Lease, (ii) taxes assessed upon or
+with respect to the possession, leasing, operation, management, maintenance,
+alteration, repair, use or occupancy by Tenant of the Premises or any portion of
+the Project, including the Project parking facility; or (iii) taxes assessed
+upon this transaction or any document to which Tenant is a party creating or
+transferring an interest or an estate in the Premises. 4.6 Landlord's Records.
+Upon Tenant's written request given not more than ninety (90) days after
+Tenant's receipt of a Statement for a particular Expense Year, and provided that
+Tenant is not then in default under this Lease beyond the applicable notice and
+cure period provided in this Lease, specifically including, but not limited to,
+the timely payment of Additional Rent (whether or not the same is the subject of
+the audit contemplated herein), Landlord shall furnish Tenant with such
+reasonable supporting documentation in connection with said Direct Expenses as
+Tenant may reasonably request. Landlord shall provide said documentation to
+Tenant within sixty (60) days after Tenant's written request therefor. Within
+one hundred eighty (180) days after receipt of a Statement by Tenant (the "Audit
+Period"), if Tenant disputes the amount of Direct Expenses set forth in the
+Statement, an independent certified public accountant (which accountant (A) is a
+member of a nationally or regionally recognized certified public accounting firm
+which has previous experience in auditing financial operating records of
+landlords of office buildings, (B) shall not already be providing primary
+accounting and/or lease administration services to Tenant and shall not have
+provided primary accounting and/or lease administration services to Tenant in
+the past three (3) years, (C) is not working on a contingency fee basis [i.e.,
+Tenant must be billed based on the actual time and materials that are incurred
+by the certified public accounting firm in the performance of the audit], and
+(D) shall not currently or in the future be providing accounting and/or lease
+administration services to another tenant in the Building and/or the Project in
+connection with a review or audit by such other tenant of Direct Expenses),
+designated and paid for by Tenant, may, after reasonable notice to Landlord and
+at reasonable times, audit Landlord's records with respect to the Statement at
+Landlord's corporate offices, provided that (i) Tenant is not then in default
+under this Lease (beyond the applicable notice and cure periods provided under
+this Lease), (ii) Tenant has paid all amounts required to be paid under the
+applicable Estimate Statement and Statement, and (iii) a copy of the audit
+agreement between Tenant and its particular certified public accounting firm has
+been delivered to Landlord prior to the commencement of the audit. In connection
+with such audit, Tenant and Tenant's certified public accounting firm must agree
+in advance to follow Landlord's reasonable rules and procedures regarding an
+audit of the aforementioned Landlord records, and shall execute a commercially
+reasonable confidentiality agreement regarding such audit. Any audit report
+prepared by Tenant's certified public accounting firm shall be delivered
+concurrently to Landlord and Tenant within the Audit Period. Tenant's failure to
+audit the amount of Direct Expenses set forth in any Statement within the Audit
+Period shall be deemed to be Tenant's approval of such Statement and Tenant,
+thereafter, waives the right or ability to audit the amounts set forth in such
+Statement. If after such audit, Tenant still disputes such Direct Expenses, an
+audit to determine the proper amount shall be made, at Tenant's expense, by an
+independent certified public accountant (the "Accountant") selected by Landlord
+and subject to Tenant's reasonable approval; provided that if such audit by the
+Accountant proves that Direct Expenses set forth in the particular Statement
+were overstated by more than seven percent (7%), then the cost of the Accountant
+and the cost of such audit shall be paid for by Landlord. Tenant hereby
+acknowledges that Tenant's sole right to audit Landlord's records and to contest
+the amount of Direct Expenses payable by Tenant shall be as set forth in this
+Section 4.6, and Tenant hereby waives any and all other rights pursuant to
+applicable law to audit such records and/or to contest the amount of Direct
+Expenses payable by Tenant. ARTICLE 5 USE OF PREMISES 5.1 Permitted Use. Tenant
+shall use the Premises solely for the Permitted Use set forth in Section 6 of
+the Summary and Tenant shall not use or permit the Premises or the Project to be
+used for any other purpose or purposes whatsoever without the prior written
+consent of Landlord, which may be withheld in Landlord's sole discretion. Tenant
+shall comply with the terms of Exhibit F, attached hereto. 5.2 Prohibited Uses.
+Tenant further covenants and agrees that Tenant shall not use, or suffer or
+permit any person or persons to use, the Premises or any part thereof for any
+use or purpose contrary to the provisions of the Rules and Regulations set forth
+in Exhibit D, attached hereto, or in violation of the laws of the United States
+of America, the State of California, the ordinances, regulations or requirements
+of the local municipal or county governing body or other lawful authorities
+having jurisdiction over the Project) including, without limitation, any such
+CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (11)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr014.jpg]
+Page(s) laws, ordinances, regulations or requirements relating to hazardous
+materials or substances, as those terms are defined by applicable laws now or
+hereafter in effect, or any Underlying Documents. Tenant shall not do or permit
+anything to be done in or about the Premises which will in any way damage the
+reputation of the Project or obstruct or interfere with the rights of other
+tenants or occupants of the Building, or injure or annoy them or use or allow
+the Premises to be used for any improper, unlawful or objectionable purpose, nor
+shall Tenant cause, maintain or permit any nuisance in, on or about the
+Premises. Tenant shall comply with, and Tenant's rights and obligations under
+the Lease and Tenant's use of the Premises shall be subject and subordinate to,
+all recorded easements, covenants, conditions, and restrictions now or hereafter
+affecting the Project. ARTICLE 6 SERVICES AND UTILITIES 6.1 Standard Tenant
+Services. Landlord shall provide the following services on all days (unless
+otherwise stated below) during the Lease Term. 6.1.1 Subject to limitations
+imposed by all governmental rules, regulations and guidelines applicable
+thereto, Landlord shall provide heating and air conditioning ("HVAC") when
+necessary for normal comfort for normal office use in the Premises from 8:00
+A.M. to 6:00 P.M. Monday through Friday (collectively, the "Building Hours"),
+except for the date of observation of New Year's Day, President's Day,
+Independence Day, Labor Day, Memorial Day, Thanksgiving Day, Christmas Day and,
+at Landlord's discretion, other locally or nationally recognized holidays which
+are observed by other buildings comparable to and in the vicinity of the
+Building (collectively, the "Holidays"). 6.1.2 Landlord shall provide adequate
+electrical wiring and facilities for connection to Tenant's lighting fixtures
+and incidental use equipment, provided that (i) the connected electrical load of
+the incidental use equipment does not exceed an average of five (5) watts per
+usable square foot of the Premises, calculated during Building Hours, on a
+monthly basis, and the electricity so furnished for incidental use equipment
+will be at a nominal one hundred twenty (120) volts and no electrical circuit
+for the supply of such incidental use equipment will require a current capacity
+exceeding twenty (20) amperes, and (ii) the connected electrical load of
+Tenant's lighting fixtures does not exceed an average of one (1) watt per usable
+square foot of the Premises, calculated during Building Hours, upon a monthly
+basis, and the electricity so furnished for Tenant's lighting will be at a
+nominal two hundred seventy- seven (277) volts, which electrical usage shall be
+subject to applicable laws and regulations, including Title 24. Tenant shall
+bear the cost of replacement of lamps, starters and ballasts for non-Building
+standard lighting fixtures within the Premises. 6.1.3 Landlord shall provide
+city water from the regular Building outlets for drinking, lavatory and toilet
+purposes in the Building Common Areas and the Premises. 6.1.4 Landlord shall
+provide janitorial services to the Premises Monday through Friday, except the
+date of observation of the Holidays, in and about the Premises and window
+washing services in a manner consistent with other comparable buildings in the
+vicinity of the Building. 6.1.5 Landlord shall provide nonexclusive,
+non-attended automatic passenger elevator service during the Building Hours,
+shall have one elevator available at all other times, including on the Holidays.
+6.1.6 Landlord shall provide nonexclusive freight elevator service subject to
+scheduling by Landlord. 6.1.7 Subject to applicable laws and the other
+provisions of this Lease, and except in the event of an emergency, Tenant shall
+have access to the Building, the Premises and the Building Common Areas, other
+than common areas requiring access with a Building engineer, twenty-four (24)
+hours per day, seven (7) days per week, every day of the year; provided,
+however, that Tenant shall only be permitted to have access to and use of the
+Project CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (12)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr015.jpg]
+Page(s) parking areas, freight elevator, loading dock, mailroom and other
+limited-access areas of the Building during the normal operating hours of such
+portions of the Building. Tenant shall cooperate fully with Landlord at all
+times and abide by all regulations and requirements that Landlord may reasonably
+prescribe for the proper functioning and protection of the HVAC, electrical,
+mechanical and plumbing systems servicing the Premises. 6.2 Overstandard Tenant
+Use. Tenant shall not, without Landlord's prior written consent, use heat-
+generating machines, machines other than normal fractional horsepower office
+machines, or equipment or lighting other than Building standard lights in the
+Premises, which may affect the temperature otherwise maintained by the air
+conditioning system or increase the water normally furnished for the Premises by
+Landlord pursuant to the terms of Section 6.1 of this Lease. If Tenant uses
+water, electricity, heat or air conditioning in excess of that supplied by
+Landlord pursuant to Section 6.1 of this Lease, Tenant shall pay to Landlord,
+upon billing, the actual cost of such excess consumption, the cost of the
+installation, operation, and maintenance of equipment which is installed in
+order to supply such excess consumption, and the cost of the increased wear and
+tear on existing equipment caused by such excess consumption; and Landlord may
+install devices to separately meter any increased use and in such event Tenant
+shall pay the increased cost directly to Landlord, on demand, at the rates
+charged by the public utility company furnishing the same, including the cost of
+installing, testing and maintaining of such additional metering devices.
+Tenant's use of electricity shall never exceed the capacity of the feeders to
+the Project or the risers or wiring installation, and subject to the terms of
+Section 29.31, below, Tenant shall not install or use or permit the installation
+or use of any computer or electronic data processing equipment in the Premises,
+without the prior written consent of Landlord; provided, however, the foregoing
+restriction shall not apply to general office use of printers and personal
+computers on the desktops of Tenant's employees. If Tenant desires to use heat,
+ventilation or air conditioning during hours other than those for which Landlord
+is obligated to supply such utilities pursuant to the terms of Section 6.1 of
+this Lease, Tenant shall give Landlord such prior notice, if any, as Landlord
+shall from time to time establish as appropriate, of Tenant's desired use in
+order to supply such utilities, and Landlord shall supply such utilities to
+Tenant at such hourly cost per zone to Tenant (which shall be treated as
+Additional Rent) as Landlord shall from time to time establish. Notwithstanding
+any provision to the contrary contained in this Lease, Tenant shall pay to
+Landlord, Landlord's standard charge, for any services provided to Tenant which
+Landlord is not obligated to provide to Tenant pursuant to the terms of this
+Lease. 6.3 Interruption of Use. Tenant agrees that Landlord shall not be liable
+for damages, by abatement of Rent or otherwise, for failure to furnish or delay
+in furnishing any service (including telephone and telecommunication services),
+or for any diminution in the quality or quantity thereof, when such failure or
+delay or diminution is occasioned, in whole or in part, by breakage, repairs,
+replacements, or improvements, by any strike, lockout or other labor trouble, by
+inability to secure electricity, gas, water, or other fuel at the Building or
+Project after reasonable effort to do so, by any riot or other dangerous
+condition, emergency, accident or casualty whatsoever, by act or default of
+Tenant or other parties, or by any other cause beyond Landlord's reasonable
+control; and such failures or delays or diminution shall never be deemed to
+constitute an eviction or disturbance of Tenant's use and possession of the
+Premises or relieve Tenant from paying Rent or performing any of its obligations
+under this Lease. Furthermore, Landlord shall not be liable under any
+circumstances for a loss of, or injury to, property or for injury to, or
+interference with, Tenant's business, including, without limitation, loss of
+profits, however occurring, through or in connection with or incidental to a
+failure to furnish any of the services or utilities as set forth in this Article
+6. ARTICLE 7 REPAIRS Tenant shall, at Tenant's own expense, keep the Premises,
+including all improvements, fixtures, furnishings, and systems and equipment
+therein (including, without limitation, plumbing fixtures and equipment such as
+dishwashers, garbage disposals, and insta-hot dispensers) in good order, repair
+and condition at all times during the Lease Term. In addition, Tenant shall, at
+Tenant's own expense, but under the supervision and subject to the prior
+approval of Landlord, and within any reasonable period of time specified by
+Landlord, promptly and adequately repair all damage to the Premises and replace
+or repair all damaged, broken, or worn fixtures and appurtenances, except for
+damage caused by ordinary wear and tear or beyond the reasonable control of
+Tenant; provided however, that, at CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (13) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr016.jpg]
+Page(s) Landlord's option, or if Tenant fails to make such repairs, Landlord
+may, but need not, make such repairs and replacements, and Tenant shall pay
+Landlord the cost thereof, including a percentage of the cost thereof (to be
+uniformly established for the Building and/or the Project) sufficient to
+reimburse Landlord for all overhead, general conditions, fees and other costs or
+expenses arising from Landlord's involvement with such repairs and replacements
+forthwith upon being billed for same. Notwithstanding the foregoing, Landlord
+shall be responsible for repairs to the exterior walls, foundation and roof of
+the Building, the structural portions of the floors of the Building, and the
+base building systems and equipment of the Building, except to the extent that
+such repairs are required due to the negligence or willful misconduct of Tenant;
+provided, however, that if such repairs are due to the negligence or willful
+misconduct of Tenant, Landlord shall nevertheless make such repairs at Tenant's
+expense, or, if covered by Landlord's insurance, Tenant shall only be obligated
+to pay any deductible in connection therewith. Landlord may, but shall not be
+required to, enter the Premises at all reasonable times to make such repairs,
+alterations, improvements or additions to the Premises or to the Project or to
+any equipment located in the Project as Landlord shall desire or deem necessary
+or as Landlord may be required to do by governmental or quasi-governmental
+authority or court order or decree. Tenant hereby waives any and all rights
+under and benefits of subsection 1 of Section 1932 and Sections 1941 and 1942 of
+the California Civil Code or under any similar law, statute, or ordinance now or
+hereafter in effect. ARTICLE 8 ADDITIONS AND ALTERATIONS 8.1 Landlord's Consent
+to Alterations. Tenant may not make any improvements, alterations, additions or
+changes to the Premises or any mechanical, plumbing or HVAC facilities or
+systems pertaining to the Premises (collectively, the "Alterations") without
+first procuring the prior written consent of Landlord to such Alterations, which
+consent shall be requested by Tenant not less than thirty (30) days prior to the
+commencement thereof, and which consent shall not be unreasonably withheld by
+Landlord, provided it shall be deemed reasonable for Landlord to withhold its
+consent to any Alteration which adversely affects the structural portions or the
+systems or equipment of the Building or is visible from the exterior of the
+Building. Notwithstanding the foregoing, Tenant shall be permitted to make
+Alterations following ten (10) business days notice to Landlord, but without
+Landlord's prior consent, to the extent that such Alterations are decorative
+only (i.e., installation of carpeting or painting of the Premises). The
+construction of the initial improvements to the Premises shall be governed by
+the terms of the Tenant Work Letter and not the terms of this Article 8. 8.2
+Manner of Construction. Landlord may impose, as a condition of its consent to
+any and all Alterations or repairs of the Premises or about the Premises, such
+requirements as Landlord in its reasonable discretion may deem desirable,
+including, but not limited to, the requirement that Tenant utilize for such
+purposes only contractors, subcontractors, materials, mechanics and materialmen
+selected by Tenant from a list provided and approved by Landlord, the
+requirement that upon Landlord's request, Tenant shall, at Tenant's expense,
+remove such Alterations upon the expiration or any early termination of the
+Lease Term. Tenant shall construct such Alterations and perform such repairs in
+a good and workmanlike manner, in conformance with any and all applicable
+federal, state, county or municipal laws, rules and regulations and pursuant to
+a valid building permit, issued by the City of San Mateo, all in conformance
+with Landlord's construction rules and regulations; provided, however, that
+prior to commencing to construct any Alteration, Tenant shall meet with Landlord
+to discuss Landlord's design parameters and code compliance issues. In the event
+Tenant performs any Alterations in the Premises which require or give rise to
+governmentally required changes to the "Base Building," as that term is defined
+below, then Landlord shall, at Tenant's expense, make such changes to the Base
+Building. The "Base Building" shall include the structural portions of the
+Building, and the public restrooms, elevators, exit stairwells and the systems
+and equipment located in the internal core of the Building on the floor or
+floors on which the Premises are located. In performing the work of any such
+Alterations, Tenant shall have the work performed in such manner so as not to
+obstruct access to the Project or any portion thereof, by any other tenant of
+the Project, and so as not to obstruct the business of Landlord or other tenants
+in the Project. Tenant shall not use (and upon notice from Landlord shall cease
+using) contractors, services, workmen, labor, materials or equipment that, in
+Landlord's reasonable judgment, would disturb labor harmony with the workforce
+or trades engaged in performing other work, labor or services in or about the
+Building or the Common Areas. In addition to Tenant's obligations under Article
+9 of this Lease, upon completion of any Alterations, Tenant agrees to cause a
+Notice of Completion to be recorded in the office of the Recorder of the County
+of San Mateo in accordance with Section 8182 of the Civil Code of the State of
+California or any successor statute, and Tenant shall CROSSROADS 811068.04/WLA
+Office Lease 375985-00061/1-24-20/cb/ejs (14) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr017.jpg]
+Page(s) deliver to the Project construction manager a reproducible copy of the
+"as built" drawings of the Alterations as well as all permits, approvals and
+other documents issued by any governmental agency in connection with the
+Alterations. 8.3 Payment for Improvements. If payment is made by Tenant directly
+to contractors, Tenant shall (i) comply with Landlord's requirements for final
+lien releases and waivers in connection with Tenant's payment for work to
+contractors, and (ii) sign Landlord's standard contractor's rules and
+regulations. If Tenant orders any work directly from Landlord, Tenant shall pay
+to Landlord an amount equal to five percent (5%) of the cost of such work to
+compensate Landlord for all overhead, general conditions, fees and other costs
+and expenses arising from Landlord's involvement with such work. If Tenant does
+not order any work directly from Landlord, Tenant shall reimburse Landlord for
+Landlord's reasonable, actual, out-of-pocket costs and expenses actually
+incurred in connection with Landlord's review of such work. At Landlord's
+option, prior to the commencement of construction of any Alteration, Tenant
+shall provide Landlord with the reasonably anticipated cost thereof, which
+Landlord shall disburse during construction pursuant to Landlord's standard,
+commercially reasonable disbursement procedure. 8.4 Construction Insurance. In
+addition to the requirements of Article 10 of this Lease, in the event that
+Tenant makes any Alterations, prior to the commencement of such Alterations,
+Tenant shall provide Landlord with evidence that Tenant carries or has caused
+its Contractor to carry "Builder's All Risk" insurance in an amount approved by
+Landlord covering the construction of such Alterations, and such other insurance
+as Landlord may reasonably require, it being understood and agreed that all of
+such Alterations shall be insured by Tenant pursuant to Article 10 of this Lease
+immediately upon completion thereof. In addition, Tenant's contractors and
+subcontractors shall be required to carry Commercial General Liability insurance
+in an amount approved by Landlord and otherwise in accordance with the
+requirements of Article 10 of this Lease. Landlord may, in its discretion,
+require Tenant to obtain a lien and completion bond or some alternate form of
+security satisfactory to Landlord in an amount sufficient to ensure the
+lien-free completion of such Alterations and naming Landlord as a co-obligee.
+8.5 Landlord's Property. All Alterations, improvements, fixtures, equipment
+and/or appurtenances which may be installed or placed in or about the Premises,
+from time to time, shall be at the sole cost of Tenant and shall be and become
+the property of Landlord, except that Tenant may remove any Alterations,
+improvements, fixtures and/or equipment which Tenant can substantiate to
+Landlord have not been paid for with any Tenant improvement allowance funds
+provided to Tenant by Landlord, provided Tenant repairs any damage to the
+Premises and Building caused by such removal and returns the affected portion of
+the Premises to a building standard tenant improved condition as determined by
+Landlord; provided, however, that notwithstanding the foregoing, upon request by
+Tenant at the time of Tenant's request for Landlord's consent to any Alteration
+or improvement, Landlord shall notify Tenant whether the applicable Alteration
+or improvement will be required to be removed pursuant to the terms of this
+Section 8.5. Furthermore, Landlord may, by written notice to Tenant prior to the
+end of the Lease Term, or given following any earlier termination of this Lease,
+require Tenant, at Tenant's expense, to remove any Alterations and/or
+improvements and/or systems and equipment within the Premises and to repair any
+damage to the Premises and Building caused by such removal and return the
+affected portion of the Premises to a building standard tenant improved
+condition as determined by Landlord. If Tenant fails to complete such removal
+and/or to repair any damage caused by the removal of any Alterations and/or
+improvements and/or systems and equipment in the Premises and return the
+affected portion of the Premises to a building standard tenant improved
+condition as reasonably determined by Landlord, Landlord may do so and may
+charge the cost thereof to Tenant. Tenant hereby protects, defends, indemnifies
+and holds Landlord harmless from any liability, cost, obligation, expense or
+claim of lien in any manner relating to the installation, placement, removal or
+financing of any such Alterations, improvements, fixtures and/or equipment in,
+on or about the Premises, which obligations of Tenant shall survive the
+expiration or earlier termination of this Lease. ARTICLE 9 COVENANT AGAINST
+LIENS Tenant shall keep the Project and Premises free from any liens or
+encumbrances arising out of the work performed, materials furnished or
+obligations incurred by or on behalf of Tenant, and shall protect, defend,
+indemnify and hold Landlord harmless from and against any claims, liabilities,
+judgments or costs (including, without limitation, reasonable attorneys' fees
+and costs) arising out of same or in connection therewith. Tenant shall give
+Landlord notice CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (15) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr018.jpg]
+Page(s) at least twenty (20) days prior to the commencement of any such work on
+the Premises (or such additional time as may be necessary under applicable laws)
+to afford Landlord the opportunity of posting and recording appropriate notices
+of non-responsibility. Tenant shall remove any such lien or encumbrance by bond
+or otherwise within ten (10) business days after notice by Landlord, and if
+Tenant shall fail to do so, Landlord may pay the amount necessary to remove such
+lien or encumbrance, without being responsible for investigating the validity
+thereof. The amount so paid shall be deemed Additional Rent under this Lease
+payable upon demand, without limitation as to other remedies available to
+Landlord under this Lease. Nothing contained in this Lease shall authorize
+Tenant to do any act which shall subject Landlord's title to the Building or
+Premises to any liens or encumbrances whether claimed by operation of law or
+express or implied contract. Any claim to a lien or encumbrance upon the
+Building or Premises arising in connection with any such work or respecting the
+Premises not performed by or at the request of Landlord shall be null and void,
+or at Landlord's option shall attach only against Tenant's interest in the
+Premises and shall in all respects be subordinate to Landlord's title to the
+Project, Building and Premises. ARTICLE 10 INSURANCE 10.1 Indemnification and
+Waiver. Tenant hereby assumes all risk of damage to property or injury to
+persons in, upon or about the Premises from any cause whatsoever (including, but
+not limited to, any personal injuries resulting from a slip and fall in, upon or
+about the Premises) and agrees that Landlord, its partners, subpartners and
+their respective officers, agents, servants, employees, and independent
+contractors (collectively, "Landlord Parties") shall not be liable for, and are
+hereby released from any responsibility for, any damage either to person or
+property or resulting from the loss of use thereof, which damage is sustained by
+Tenant or by other persons claiming through Tenant. Tenant shall indemnify,
+defend, protect, and hold harmless the Landlord Parties from any and all loss,
+cost, damage, expense and liability (including without limitation court costs
+and reasonable attorneys' fees) incurred in connection with or arising from any
+cause in, on or about the Premises (including, but not limited to, a slip and
+fall), any acts, omissions or negligence of Tenant or of any person claiming by,
+through or under Tenant, or of the contractors, agents, servants, employees,
+invitees, guests or licensees of Tenant or any such person, in, on or about the
+Project or any breach of the terms of this Lease, either prior to, during, or
+after the expiration of the Lease Term, provided that the terms of the foregoing
+indemnity shall not apply to the negligence or willful misconduct of Landlord or
+any Landlord Parties. Should Landlord be named as a defendant in any suit
+brought against Tenant in connection with or arising out of Tenant's occupancy
+of the Premises, Tenant shall pay to Landlord its costs and expenses incurred in
+such suit, including without limitation, its actual professional fees such as
+reasonable appraisers', accountants' and attorneys' fees. The provisions of this
+Section 10.1 shall survive the expiration or sooner termination of this Lease
+with respect to any claims or liability arising in connection with any event
+occurring prior to such expiration or termination. 10.2 Tenant's Compliance With
+Landlord's Fire and Casualty Insurance. Tenant shall, at Tenant's expense,
+comply with all insurance company requirements pertaining to the use of the
+Premises. If Tenant's conduct or use of the Premises causes any increase in the
+premium for such insurance policies then Tenant shall reimburse Landlord for any
+such increase. Tenant, at Tenant's expense, shall comply with all rules, orders,
+regulations or requirements of the American Insurance Association (formerly the
+National Board of Fire Underwriters) and with any similar body. 10.3 Tenant's
+Insurance. Tenant shall maintain the following coverages in the following
+amounts. Landlord makes no representation or warranty to Tenant that the amount
+of insurance required to be carried by Tenant under the terms of this Lease is
+adequate to fully protect Tenant's interests. Tenant is encouraged to evaluate
+its insurance needs and obtain whatever additional types or amounts of insurance
+that it may deem desirable or appropriate. 10.3.1 Commercial General Liability
+Insurance on an occurrence form covering the insured against claims of bodily
+injury, personal injury and property damage (including loss of use thereof)
+arising out of Tenant's operations, and contractual liabilities (covering the
+performance by Tenant of its indemnity agreements) including a Broad Form
+endorsement covering the insuring provisions of this Lease and the performance
+by Tenant CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (16)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr019.jpg]
+Page(s) of the indemnity agreements set forth in Section 10.1 of this Lease and
+including products and completed operations coverage for limits of liability on
+a per location basis of not less than: Bodily Injury and $5,000,000 each
+occurrence Property Damage Liability $5,000,000 annual aggregate Personal Injury
+Liability $5,000,000 each occurrence $5,000,000 annual aggregate Subject to
+commercially reasonable deductibles 10.3.2 Physical Damage Insurance covering
+(i) all office furniture, business and trade fixtures, office equipment,
+free-standing cabinet work, movable partitions, merchandise and all other items
+of Tenant's property on the Premises installed by, for, or at the expense of
+Tenant, (ii) the "Tenant Improvements," as that term is defined in the Tenant
+Work Letter, and any other improvements which exist in the Premises as of the
+Lease Commencement Date (excluding the Base Building) (the "Original
+Improvements"), and (iii) all other improvements, alterations and additions to
+the Premises. Such insurance shall be written on an "all risks" of physical loss
+or damage basis, for the full replacement cost value (subject to reasonable
+deductible amounts) new without deduction for depreciation of the covered items
+and in amounts that meet any co-insurance clauses of the policies of insurance
+and shall include coverage for damage or other loss caused by fire or other
+peril including, but not limited to, vandalism and malicious mischief, theft,
+water damage of any type, including sprinkler leakage, bursting or stoppage of
+pipes, and explosion, and providing business interruption coverage for a period
+of one year. 10.3.3 Worker's Compensation and Employer's Liability or other
+similar insurance pursuant to all applicable state and local statutes and
+regulations. 10.4 Form of Policies. The minimum limits of policies of insurance
+required of Tenant under this Lease shall in no event limit the liability of
+Tenant under this Lease. Such insurance shall (i) except with respect to
+Worker's Compensation and Employer's Liability, name Landlord, and any other
+party the Landlord so specifies, as an additional insured, including Landlord's
+managing agent, if any; (ii) specifically cover the liability assumed by Tenant
+under this Lease, including, but not limited to, Tenant's obligations under
+Section 10.1 of this Lease; (iii) be issued by an insurance company having a
+rating of not less than A-VIII in Best's Insurance Guide or which is otherwise
+acceptable to Landlord and licensed to do business in the State of California;
+(iv) be primary and non-contributory insurance as to all claims thereunder and
+provide that any insurance carried by Landlord is excess and is non-
+contributing with any insurance requirement of Tenant; (v) be in form and
+content reasonably acceptable to Landlord; and (vi) provide that said insurance
+shall not be canceled or coverage changed unless fifteen (15) days' prior
+written notice shall have been given to Landlord and any mortgagee of Landlord.
+Tenant shall deliver said policy or policies or certificates thereof to Landlord
+on or before the Lease Commencement Date and at least thirty (30) days before
+the expiration dates thereof. Further, Landlord shall have the right, from time
+to time, to request copies of policies of Tenant's insurance required hereunder,
+which Tenant shall thereafter provide within ten (10) business days. In the
+event Tenant shall fail to procure such insurance, or to deliver such policies
+or certificate, Landlord may, at its option, procure such policies for the
+account of Tenant, and the cost thereof shall be paid to Landlord within five
+(5) days after delivery to Tenant of bills therefor. 10.5 Subrogation. Landlord
+and Tenant intend that their respective property loss risks shall be borne by
+reasonable insurance carriers to the extent above provided, and Landlord and
+Tenant hereby agree to look solely to, and seek recovery only from, their
+respective insurance carriers in the event of a property loss to the extent that
+such coverage is agreed to be provided hereunder. The parties each hereby waive
+all rights and claims against each other for such losses, and waive all rights
+of subrogation of their respective insurers, provided such waiver of subrogation
+shall not affect the right to the insured to recover thereunder. The parties
+agree that their respective insurance policies are now, or shall be, endorsed
+such that the waiver of subrogation shall not affect the right of the insured to
+recover thereunder, so long as no material additional premium is charged
+therefor. 10.6 Additional Insurance Obligations. Tenant shall carry and maintain
+during the entire Lease Term, at Tenant's sole cost and expense, increased
+amounts of the insurance required to be carried by Tenant pursuant to this
+Article 10 and such other reasonable types of insurance coverage and in such
+reasonable amounts covering the CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (17) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr020.jpg]
+Page(s) Premises and Tenant's operations therein, as may be reasonably requested
+by Landlord, but in no event in excess of the amounts and types of insurance
+then being required by landlords of buildings comparable to and in the vicinity
+of the Building. ARTICLE 11 DAMAGE AND DESTRUCTION 11.1 Repair of Damage to
+Premises by Landlord. Tenant shall promptly notify Landlord of any damage to the
+Premises resulting from fire or any other casualty. If the Premises or any
+Common Areas serving or providing access to the Premises shall be damaged by
+fire or other casualty, Landlord shall promptly and diligently, subject to
+reasonable delays for insurance adjustment or other matters beyond Landlord's
+reasonable control, and subject to all other terms of this Article 11, restore
+the Base Building and such Common Areas. Such restoration shall be to
+substantially the same condition of the Base Building and the Common Areas prior
+to the casualty, except for modifications required by zoning and building codes
+and other laws or by the holder of a mortgage on the Building or Project or any
+other modifications to the Common Areas deemed desirable by Landlord, which are
+consistent with the character of the Project, provided that access to the
+Premises and any common restrooms serving the Premises shall not be materially
+impaired. Upon the occurrence of any damage to the Premises, upon notice (the
+"Landlord Repair Notice") to Tenant from Landlord, Tenant shall assign to
+Landlord (or to any party designated by Landlord) all insurance proceeds payable
+to Tenant under Tenant's insurance required under Section 10.3 of this Lease,
+and Landlord shall repair any injury or damage to the Tenant Improvements and
+the Original Improvements installed in the Premises and shall return such Tenant
+Improvements and Original Improvements to their original condition; provided
+that if the cost of such repair by Landlord exceeds the amount of insurance
+proceeds received by Landlord from Tenant's insurance carrier, as assigned by
+Tenant, the cost of such repairs shall be paid by Tenant to Landlord prior to
+Landlord's commencement of repair of the damage. In the event that Landlord does
+not deliver the Landlord Repair Notice within sixty (60) days following the date
+the casualty becomes known to Landlord, Tenant shall, at its sole cost and
+expense, repair any injury or damage to the Tenant Improvements and the Original
+Improvements installed in the Premises and shall return such Tenant Improvements
+and Original Improvements to their original condition. Whether or not Landlord
+delivers a Landlord Repair Notice, prior to the commencement of construction,
+Tenant shall submit to Landlord, for Landlord's review and approval, all plans,
+specifications and working drawings relating thereto, and Landlord shall select
+the contractors to perform such improvement work. Landlord shall not be liable
+for any inconvenience or annoyance to Tenant or its visitors, or injury to
+Tenant's business resulting in any way from such damage or the repair thereof;
+provided however, that if such fire or other casualty shall have damaged the
+Premises or Common Areas necessary to Tenant's occupancy, and the Premises are
+not occupied by Tenant as a result thereof, then during the time and to the
+extent the Premises are unfit for occupancy, the Rent shall be abated in
+proportion to the ratio that the amount of rentable square feet of the Premises
+which is unfit for occupancy for the purposes permitted under this Lease bears
+to the total rentable square feet of the Premises. In the event that Landlord
+shall not deliver the Landlord Repair Notice, Tenant's right to rent abatement
+pursuant to the preceding sentence shall terminate as of the date which is
+reasonably determined by Landlord to be the date Tenant should have completed
+repairs to the Premises assuming Tenant used reasonable due diligence in
+connection therewith. 11.2 Landlord's Option to Repair. Notwithstanding the
+terms of Section 11.1 of this Lease, Landlord may elect not to rebuild and/or
+restore the Premises, Building and/or Project, and instead terminate this Lease,
+by notifying Tenant in writing of such termination within sixty (60) days after
+the date of discovery of the damage, such notice to include a termination date
+giving Tenant sixty (60) days to vacate the Premises, but Landlord may so elect
+only if the Building or Project shall be damaged by fire or other casualty or
+cause, whether or not the Premises are affected, and one or more of the
+following conditions is present: (i) in Landlord's reasonable judgment, repairs
+cannot reasonably be completed within one hundred eighty (180) days after the
+date of discovery of the damage (when such repairs are made without the payment
+of overtime or other premiums); (ii) the holder of any mortgage on the Building
+or Project or ground lessor with respect to the Building or Project shall
+require that the insurance proceeds or any portion thereof be used to retire the
+mortgage debt, or shall terminate the ground lease, as the case may be; (iii)
+the damage is not fully covered by Landlord's insurance policies; (iv) Landlord
+decides to rebuild the Building or Common Areas so that they will be
+substantially different structurally or architecturally; (v) the damage occurs
+during the last twelve (12) months of the Lease Term; or (vi) any owner of any
+other portion of the Project, other than Landlord, does not intend to repair the
+damage to such portion of the Project; provided, however, that if Landlord does
+not elect to CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs
+(18) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr021.jpg]
+Page(s) terminate this Lease pursuant to Landlord's termination right as
+provided above, and the repairs cannot, in the reasonable opinion of Landlord,
+be completed within one hundred eighty (180) days after being commenced, Tenant
+may elect, no earlier than sixty (60) days after the date of the damage and not
+later than ninety (90) days after the date of such damage, to terminate this
+Lease by written notice to Landlord effective as of the date specified in the
+notice, which date shall not be less than thirty (30) days nor more than sixty
+(60) days after the date such notice is given by Tenant. Notwithstanding the
+provisions of this Section 11.2, Tenant shall have the right to terminate this
+Lease under this Section 11.2 only if each of the following conditions is
+satisfied: (a) the damage to the Project by fire or other casualty was not
+caused by the gross negligence or intentional act of Tenant or its partners or
+subpartners and their respective officers, agents, servants, employees, and
+independent contractors; (b) Tenant is not then in default under this Lease; (c)
+as a result of the damage, Tenant cannot reasonably conduct business from the
+Premises; and, (d) as a result of the damage to the Project, Tenant does not
+occupy or use the Premises at all. 11.3 Waiver of Statutory Provisions. The
+provisions of this Lease, including this Article 11, constitute an express
+agreement between Landlord and Tenant with respect to any and all damage to, or
+destruction of, all or any part of the Premises, the Building or the Project,
+and any statute or regulation of the State of California, including, without
+limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with
+respect to any rights or obligations concerning damage or destruction in the
+absence of an express agreement between the parties, and any other statute or
+regulation, now or hereafter in effect, shall have no application to this Lease
+or any damage or destruction to all or any part of the Premises, the Building or
+the Project. ARTICLE 12 NONWAIVER No provision of this Lease shall be deemed
+waived by either party hereto unless expressly waived in a writing signed
+thereby. The waiver by either party hereto of any breach of any term, covenant
+or condition herein contained shall not be deemed to be a waiver of any
+subsequent breach of same or any other term, covenant or condition herein
+contained. The subsequent acceptance of Rent hereunder by Landlord shall not be
+deemed to be a waiver of any preceding breach by Tenant of any term, covenant or
+condition of this Lease, other than the failure of Tenant to pay the particular
+Rent so accepted, regardless of Landlord's knowledge of such preceding breach at
+the time of acceptance of such Rent. No acceptance of a lesser amount than the
+Rent herein stipulated shall be deemed a waiver of Landlord's right to receive
+the full amount due, nor shall any endorsement or statement on any check or
+payment or any letter accompanying such check or payment be deemed an accord and
+satisfaction, and Landlord may accept such check or payment without prejudice to
+Landlord's right to recover the full amount due. No receipt of monies by
+Landlord from Tenant after the termination of this Lease shall in any way alter
+the length of the Lease Term or of Tenant's right of possession hereunder, or
+after the giving of any notice shall reinstate, continue or extend the Lease
+Term or affect any notice given Tenant prior to the receipt of such monies, it
+being agreed that after the service of notice or the commencement of a suit, or
+after final judgment for possession of the Premises, Landlord may receive and
+collect any Rent due, and the payment of said Rent shall not waive or affect
+said notice, suit or judgment. ARTICLE 13 CONDEMNATION If the whole or any part
+of the Premises, Building or Project shall be taken by power of eminent domain
+or condemned by any competent authority for any public or quasi-public use or
+purpose, or if any adjacent property or street shall be so taken or condemned,
+or reconfigured or vacated by such authority in such manner as to require the
+use, reconstruction or remodeling of any part of the Premises, Building or
+Project, or if Landlord shall grant a deed or other instrument in lieu of such
+taking by eminent domain or condemnation, Landlord shall have the option to
+terminate this Lease effective as of the date possession is required to be
+surrendered to the authority. If more than twenty-five percent (25%) of the
+rentable square feet of the Premises is taken, or if access to the Premises is
+substantially impaired, in each case for a period in excess of one hundred
+eighty (180) days, Tenant shall have the option to terminate this Lease
+effective as of the date possession is required to be surrendered to the
+authority. Tenant shall not because of such taking assert any claim against
+Landlord or the authority for any compensation because of such taking and
+Landlord shall be entitled to the entire award or payment in connection
+therewith, except that Tenant CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (19) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr022.jpg]
+Page(s) shall have the right to file any separate claim available to Tenant for
+any taking of Tenant's personal property and fixtures belonging to Tenant and
+removable by Tenant upon expiration of the Lease Term pursuant to the terms of
+this Lease, and for moving expenses, so long as such claims do not diminish the
+award available to Landlord, its ground lessor with respect to the Building or
+Project or its mortgagee, and such claim is payable separately to Tenant. All
+Rent shall be apportioned as of the date of such termination. If any part of the
+Premises shall be taken, and this Lease shall not be so terminated, the Rent
+shall be proportionately abated. Tenant hereby waives any and all rights it
+might otherwise have pursuant to Section 1265.130 of The California Code of
+Civil Procedure. Notwithstanding anything to the contrary contained in this
+Article 13, in the event of a temporary taking of all or any portion of the
+Premises for a period of one hundred and eighty (180) days or less, then this
+Lease shall not terminate but the Base Rent and the Additional Rent shall be
+abated for the period of such taking in proportion to the ratio that the amount
+of rentable square feet of the Premises taken bears to the total rentable square
+feet of the Premises. Landlord shall be entitled to receive the entire award
+made in connection with any such temporary taking. ARTICLE 14 ASSIGNMENT AND
+SUBLETTING 14.1 Transfers. Tenant shall not, without the prior written consent
+of Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien
+to attach to, or otherwise transfer, this Lease or any interest hereunder,
+permit any assignment, or other transfer of this Lease or any interest hereunder
+by operation of law, sublet the Premises or any part thereof, or enter into any
+license or concession agreements or otherwise permit the occupancy or use of the
+Premises or any part thereof by any persons other than Tenant and its employees
+and contractors (all of the foregoing are hereinafter sometimes referred to
+collectively as "Transfers" and any person to whom any Transfer is made or
+sought to be made is hereinafter sometimes referred to as a "Transferee"). If
+Tenant desires Landlord's consent to any Transfer, Tenant shall notify Landlord
+in writing, which notice (the "Transfer Notice") shall include (i) the proposed
+effective date of the Transfer, which shall not be less than thirty (30) days
+nor more than one hundred eighty (180) days after the date of delivery of the
+Transfer Notice, (ii) a description of the portion of the Premises to be
+transferred (the "Subject Space"), (iii) all of the terms of the proposed
+Transfer and the consideration therefor, including calculation of the "Transfer
+Premium", as that term is defined in Section 14.3 below, in connection with such
+Transfer, the name and address of the proposed Transferee, and a copy of all
+existing executed and/or proposed documentation pertaining to the proposed
+Transfer, including all existing operative documents to be executed to evidence
+such Transfer or the agreements incidental or related to such Transfer, provided
+that Landlord shall have the right to require Tenant to utilize Landlord's
+standard Transfer documents in connection with the documentation of such
+Transfer, (iv) current financial statements of the proposed Transferee certified
+by an officer, partner or owner thereof, business credit and personal references
+and history of the proposed Transferee and any other information reasonably
+required by Landlord which will enable Landlord to determine the financial
+responsibility, character, and reputation of the proposed Transferee, nature of
+such Transferee's business and proposed use of the Subject Space, and (v) an
+executed estoppel certificate from Tenant in the form attached hereto as Exhibit
+E. Any Transfer made without Landlord's prior written consent shall, at
+Landlord's option, be null, void and of no effect, and shall, at Landlord's
+option, constitute a default by Tenant under this Lease. Whether or not Landlord
+consents to any proposed Transfer, Tenant shall pay Landlord's reasonable review
+and processing fees, as well as any reasonable professional fees (including,
+without limitation, attorneys', accountants', architects', engineers' and
+consultants' fees) incurred by Landlord, not to exceed $3,000.00 for a Transfer
+in the ordinary course of business, within thirty (30) days after written
+request by Landlord. 14.2 Landlord's Consent. Landlord shall not unreasonably
+withhold or delay its consent to any proposed Transfer of the Subject Space to
+the Transferee on the terms specified in the Transfer Notice. Without limitation
+as to other reasonable grounds for withholding consent, the parties hereby agree
+that it shall be reasonable under this Lease and under any applicable law for
+Landlord to withhold consent to any proposed Transfer where one or more of the
+following apply: 14.2.1 The Transferee is of a character or reputation or
+engaged in a business which is not consistent with the quality of the Building
+or the Project; CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (20) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr023.jpg]
+Page(s) 14.2.2 The Transferee intends to use the Subject Space for purposes
+which are not permitted under this Lease; 14.2.3 The Transferee is either a
+governmental agency or instrumentality thereof or a non-profit organization;
+14.2.4 The Transferee is not a party of reasonable financial worth and/or
+financial stability in light of the responsibilities to be undertaken in
+connection with the Transfer on the date consent is requested; 14.2.5 The
+proposed Transfer would cause a violation of another lease for space in the
+Project, or would give an occupant of the Project a right to cancel its lease;
+or 14.2.6 Either the proposed Transferee, or any person or entity which directly
+or indirectly, controls, is controlled by, or is under common control with, the
+proposed Transferee, (i) occupies space in the Project at the time of the
+request (provided, however, that Landlord may not withhold its consent to an
+assignment or a sublease pursuant to the terms of this Section 14.2.6(i) to the
+extent Landlord cannot meet such occupant’s space needs) for consent, or (ii) is
+negotiating with Landlord or has negotiated with Landlord during the six (6)
+month period immediately preceding the date Landlord receives the Transfer
+Notice, to lease space in the Project. If Landlord consents to any Transfer
+pursuant to the terms of this Section 14.2 (and does not exercise any recapture
+rights Landlord may have under Section 14.4 of this Lease), Tenant may within
+six (6) months after Landlord's consent, but not later than the expiration of
+said six-month period, enter into such Transfer of the Premises or portion
+thereof, upon substantially the same terms and conditions as are set forth in
+the Transfer Notice furnished by Tenant to Landlord pursuant to Section 14.1 of
+this Lease, provided that if there are any material changes in the terms and
+conditions from those specified in the Transfer Notice (i) such that Landlord
+would initially have been entitled to refuse its consent to such Transfer under
+this Section 14.2, or (ii) which would cause the proposed Transfer to be more
+favorable to the Transferee than the terms set forth in Tenant's original
+Transfer Notice, Tenant shall again submit the Transfer to Landlord for its
+approval and other action under this Article 14 (including Landlord's right of
+recapture, if any, under Section 14.4 of this Lease). Notwithstanding anything
+to the contrary in this Lease, if Tenant or any proposed Transferee claims that
+Landlord has unreasonably withheld or delayed its consent under Section 14.2 or
+otherwise has breached or acted unreasonably under this Article 14, their sole
+remedies shall be a suit for contract damages (other than damages for injury to,
+or interference with, Tenant's business including, without limitation, loss of
+profits, however occurring) or declaratory judgment and an injunction for the
+relief sought, and Tenant hereby waives all other remedies, including, without
+limitation, any right at law or equity to terminate this Lease, on its own
+behalf and, to the extent permitted under all applicable laws, on behalf of the
+proposed Transferee. 14.3 Transfer Premium. If Landlord consents to a Transfer,
+as a condition thereto which the parties hereby agree is reasonable, Tenant
+shall pay to Landlord fifty percent (50%) of any "Transfer Premium," as that
+term is defined in this Section 14.3, received by Tenant from such Transferee.
+"Transfer Premium" shall mean all rent, additional rent or other consideration
+payable by such Transferee in connection with the Transfer in excess of the Rent
+and Additional Rent payable by Tenant under this Lease during the term of the
+Transfer on a per rentable square foot basis if less than all of the Premises is
+transferred, after deducting the reasonable expenses incurred by Tenant for (i)
+any changes, alterations and improvements to the Premises in connection with the
+Transfer, (ii) any free base rent reasonably provided to the Transferee in
+connection with the Transfer (provided that such free rent shall be deducted
+only to the extent the same is included in the calculation of total
+consideration payable by such Transferee), and (iii) any brokerage commissions
+in connection with the Transfer and (iv) legal fees reasonably incurred in
+connection with the Transfer (collectively, "Tenant's Subleasing Costs").
+"Transfer Premium" shall also include, but not be limited to, key money, bonus
+money or other cash consideration paid by Transferee to Tenant in connection
+with such Transfer, and any payment in excess of fair market value for services
+rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment,
+or furniture transferred by Tenant to Transferee in connection with such
+Transfer. The determination of the amount of Landlord's applicable share of the
+Transfer Premium shall be made on a monthly basis as rent or other consideration
+is received by Tenant under the Transfer. For purposes of calculating the
+Transfer Premium on a monthly basis, Tenant's Subleasing Costs shall be deemed
+to be expended by Tenant in equal monthly amounts over the entire term of the
+Transfer. CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (21)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr024.jpg]
+Page(s) 14.4 Landlord's Option as to Subject Space. Notwithstanding anything to
+the contrary contained in this Article 14, in the event Tenant contemplates a
+Transfer of all or a portion of the Premises, Tenant shall give Landlord notice
+(the "Intention to Transfer Notice") of such contemplated Transfer (whether or
+not the contemplated Transferee or the terms of such contemplated Transfer have
+been determined). The Intention to Transfer Notice shall specify the portion of
+and amount of rentable square feet of the Premises which Tenant intends to
+Transfer (the "Contemplated Transfer Space"), the contemplated date of
+commencement of the contemplated Transfer (the "Contemplated Effective Date"),
+and the contemplated length of the term of such contemplated Transfer, and shall
+specify that such Intention to Transfer Notice is delivered to Landlord pursuant
+to this Section 14.4 in order to allow Landlord to elect to recapture the
+Contemplated Transfer Space. Thereafter, Landlord shall have the option, by
+giving written notice to Tenant within fifteen (15) days after receipt of any
+Intention to Transfer Notice, to recapture the Contemplated Transfer Space. Such
+recapture shall cancel and terminate this Lease with respect to such
+Contemplated Transfer Space as of the Contemplated Effective Date. In the event
+of a recapture by Landlord, if this Lease shall be canceled with respect to less
+than the entire Premises, the Rent reserved herein shall be prorated on the
+basis of the number of rentable square feet retained by Tenant in proportion to
+the number of rentable square feet contained in the Premises, and this Lease as
+so amended shall continue thereafter in full force and effect, and upon request
+of either party, the parties shall execute written confirmation of the same. If
+Landlord declines, or fails to elect in a timely manner, to recapture such
+Contemplated Transfer Space under this Section 14.4, then, subject to the other
+terms of this Article 14, for a period of nine (9) months (the "Nine Month
+Period") commencing on the last day of such fifteen (15) day period, Landlord
+shall not have any right to recapture the Contemplated Transfer Space with
+respect to any Transfer made during the Nine Month Period, provided that any
+such Transfer is substantially on the terms set forth in the Intention to
+Transfer Notice, and provided further that any such Transfer shall be subject to
+the remaining terms of this Article 14. If such a Transfer is not so consummated
+within the Nine Month Period (or if a Transfer is so consummated, then upon the
+expiration of the term of any Transfer of such Contemplated Transfer Space
+consummated within such Nine Month Period), Tenant shall again be required to
+submit a new Intention to Transfer Notice to Landlord with respect any
+contemplated Transfer, as provided above in this Section 14.4. 14.5 Effect of
+Transfer. If Landlord consents to a Transfer, (i) the terms and conditions of
+this Lease shall in no way be deemed to have been waived or modified, (ii) such
+consent shall not be deemed consent to any further Transfer by either Tenant or
+a Transferee, (iii) Tenant shall deliver to Landlord, promptly after execution,
+an original executed copy of all documentation pertaining to the Transfer in
+form reasonably acceptable to Landlord, (iv) Tenant shall furnish upon
+Landlord's request a complete statement, certified by an independent certified
+public accountant, or Tenant's chief financial officer, setting forth in detail
+the computation of any Transfer Premium Tenant has derived and shall derive from
+such Transfer, and (v) no Transfer relating to this Lease or agreement entered
+into with respect thereto, whether with or without Landlord's consent, shall
+relieve Tenant or any guarantor of the Lease from any liability under this
+Lease, including, without limitation, in connection with the Subject Space. In
+the event that Tenant subleases all or any portion of the Premises in accordance
+with the terms of this Article 14, Tenant shall cause such subtenant to carry
+and maintain the same insurance coverage terms and limits as are required of
+Tenant, in accordance with the terms of Article 10 of this Lease. Landlord or
+its authorized representatives shall have the right at all reasonable times to
+audit the books, records and papers of Tenant relating to any Transfer, and
+shall have the right to make copies thereof. If the Transfer Premium respecting
+any Transfer shall be found understated, Tenant shall, within thirty (30) days
+after demand, pay the deficiency, and if understated by more than two percent
+(2%), Tenant shall pay Landlord's costs of such audit. 14.6 Additional
+Transfers. For purposes of this Lease, the term "Transfer" shall also include
+(i) if Tenant is a partnership, the withdrawal or change, voluntary, involuntary
+or by operation of law, of fifty percent (50%) or more of the partners, or
+transfer of fifty percent (50%) or more of partnership interests, within a
+twelve (12)-month period, or the dissolution of the partnership without
+immediate reconstitution thereof, and (ii) if Tenant is a closely held
+corporation (i.e., whose stock is not publicly held and not traded through an
+exchange or over the counter), (A) the dissolution, merger, consolidation or
+other reorganization of Tenant or (B) the sale or other transfer of an aggregate
+of fifty percent (50%) or more of the voting shares of Tenant (other than to
+immediate family members by reason of gift or death), within a twelve (12)-month
+period, or (C) the sale, mortgage, hypothecation or pledge of an aggregate of
+fifty percent (50%) or more of the value of the unencumbered assets of Tenant
+within a twelve (12)-month period. 14.7 Occurrence of Default. Any Transfer
+hereunder shall be subordinate and subject to the provisions of this Lease, and
+if this Lease shall be terminated during the term of any Transfer, Landlord
+shall have the right to: CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (22) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr025.jpg]
+Page(s) (i) treat such Transfer as cancelled and repossess the Subject Space by
+any lawful means, or (ii) require that such Transferee attorn to and recognize
+Landlord as its landlord under any such Transfer. If Tenant shall be in default
+under this Lease, Landlord is hereby irrevocably authorized, as Tenant's agent
+and attorney-in-fact, to direct any Transferee to make all payments under or in
+connection with the Transfer directly to Landlord (which Landlord shall apply
+towards Tenant's obligations under this Lease) until such default is cured. Such
+Transferee shall rely on any representation by Landlord that Tenant is in
+default hereunder, without any need for confirmation thereof by Tenant. Upon any
+assignment, the assignee shall assume in writing all obligations and covenants
+of Tenant thereafter to be performed or observed under this Lease. No collection
+or acceptance of rent by Landlord from any Transferee shall be deemed a waiver
+of any provision of this Article 14 or the approval of any Transferee or a
+release of Tenant from any obligation under this Lease, whether theretofore or
+thereafter accruing. In no event shall Landlord's enforcement of any provision
+of this Lease against any Transferee be deemed a waiver of Landlord's right to
+enforce any term of this Lease against Tenant or any other person. If Tenant's
+obligations hereunder have been guaranteed, Landlord's consent to any Transfer
+shall not be effective unless the guarantor also consents to such Transfer. 14.8
+Non-Transfers. Notwithstanding anything to the contrary contained in this
+Article 14, an assignment or subletting of all or a portion of the Premises to
+an affiliate of Tenant (an entity which is controlled by, controls, or is under
+common control with, Tenant), shall not be deemed a Transfer under this Article
+14, provided that Tenant notifies Landlord of any such assignment or sublease
+and promptly supplies Landlord with any documents or information requested by
+Landlord regarding such assignment or sublease or such affiliate, and further
+provided that such assignment or sublease is not a subterfuge by Tenant to avoid
+its obligations under this Lease. "Control," as used in this Section 14.8, shall
+mean the ownership, directly or indirectly, of at least fifty-one percent (51%)
+of the voting securities of, or possession of the right to vote, in the ordinary
+direction of its affairs, of at least fifty-one percent (51%) of the voting
+interest in, any person or entity. ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP
+AND REMOVAL OF TRADE FIXTURES 15.1 Surrender of Premises. No act or thing done
+by Landlord or any agent or employee of Landlord during the Lease Term shall be
+deemed to constitute an acceptance by Landlord of a surrender of the Premises
+unless such intent is specifically acknowledged in writing by Landlord. The
+delivery of keys to the Premises to Landlord or any agent or employee of
+Landlord shall not constitute a surrender of the Premises or effect a
+termination of this Lease, whether or not the keys are thereafter retained by
+Landlord, and notwithstanding such delivery Tenant shall be entitled to the
+return of such keys at any reasonable time upon request until this Lease shall
+have been properly terminated. The voluntary or other surrender of this Lease by
+Tenant, whether accepted by Landlord or not, or a mutual termination hereof,
+shall not work a merger, and at the option of Landlord shall operate as an
+assignment to Landlord of all subleases or subtenancies affecting the Premises
+or terminate any or all such sublessees or subtenancies. 15.2 Removal of Tenant
+Property by Tenant. Upon the expiration of the Lease Term, or upon any earlier
+termination of this Lease, Tenant shall, subject to the provisions of this
+Article 15, quit and surrender possession of the Premises to Landlord in as good
+order and condition as when Tenant took possession and as thereafter improved by
+Landlord and/or Tenant, reasonable wear and tear and repairs which are
+specifically made the responsibility of Landlord hereunder excepted. Upon such
+expiration or termination, Tenant shall, without expense to Landlord, remove or
+cause to be removed from the Premises all debris and rubbish, and such items of
+furniture, equipment, business and trade fixtures, free-standing cabinet work,
+movable partitions and other articles of personal property owned by Tenant or
+installed or placed by Tenant at its expense in the Premises, and such similar
+articles of any other persons claiming under Tenant, as Landlord may, in its
+sole discretion, require to be removed, and Tenant shall repair at its own
+expense all damage to the Premises and Building resulting from such removal.
+CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (23)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr026.jpg]
+Page(s) ARTICLE 16 HOLDING OVER If Tenant holds over after the expiration of the
+Lease Term or earlier termination thereof, such tenancy shall be a
+tenancy-at-sufferance, and shall not constitute a renewal hereof or an extension
+for any further term, and in such case Rent shall be payable at a daily rate
+equal to the product of (i) the daily Rent applicable during the last rental
+period of the Lease Term under this Lease, and (ii) a percentage equal to 150%
+during the first two (2) months immediately following the expiration or earlier
+termination of the Lease Term, and 200% thereafter. Such tenancy shall be
+subject to every other applicable term, covenant and agreement contained herein.
+Nothing contained in this Article 16 shall be construed as consent by Landlord
+to any holding over by Tenant, and Landlord expressly reserves the right to
+require Tenant to surrender possession of the Premises to Landlord as provided
+in this Lease upon the expiration or other termination of this Lease. If Tenant
+holds over without Landlord's express written consent, and tenders payment of
+rent for any period beyond the expiration of the Lease Term by way of check
+(whether directly to Landlord, its agents, or to a lock box) or wire transfer,
+Tenant acknowledges and agrees that the cashing of such check or acceptance of
+such wire shall be considered inadvertent and not be construed as creating a
+month-to-month tenancy, provided Landlord refunds such payment to Tenant
+promptly upon learning that such check has been cashed or wire transfer
+received. The provisions of this Article 16 shall not be deemed to limit or
+constitute a waiver of any other rights or remedies of Landlord provided herein
+or at law. If Tenant fails to surrender the Premises upon the termination or
+expiration of this Lease, in addition to any other liabilities to Landlord
+accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
+harmless from all loss, costs (including reasonable attorneys' fees) and
+liability resulting from such failure, including, without limiting the
+generality of the foregoing, any claims made by any succeeding tenant founded
+upon such failure to surrender and any lost profits to Landlord resulting
+therefrom. Tenant agrees that any proceedings necessary to recover possession of
+the Premises, whether before or after expiration of the Lease Term, shall be
+considered an action to enforce the terms of this Lease for purposes of the
+awarding of any attorney’s fees in connection therewith. ARTICLE 17 ESTOPPEL
+CERTIFICATES Within ten (10) business days following a request in writing by
+Landlord, Tenant shall execute, acknowledge and deliver to Landlord an estoppel
+certificate, which, as submitted by Landlord, shall be substantially in the form
+of Exhibit E, attached hereto (or such other form as may be required by any
+prospective mortgagee or purchaser of the Project, or any portion thereof),
+indicating therein any exceptions thereto that may exist at that time, and shall
+also contain any other information reasonably requested by Landlord or
+Landlord's mortgagee or prospective mortgagee. Any such certificate may be
+relied upon by any prospective mortgagee or purchaser of all or any portion of
+the Project. Tenant shall execute and deliver whatever other instruments may be
+reasonably required for such purposes. At any time during the Lease Term,
+Landlord may require Tenant to provide Landlord with a current financial
+statement and financial statements of the two (2) years prior to the current
+financial statement year. Such statements shall be prepared in accordance with
+generally accepted accounting principles and, if such is the normal practice of
+Tenant, shall be audited by an independent certified public accountant. Failure
+of Tenant to timely execute, acknowledge and deliver such estoppel certificate
+or other instruments shall constitute an acceptance of the Premises and an
+acknowledgment by Tenant that statements included in the estoppel certificate
+are true and correct, without exception. Notwithstanding the foregoing, in the
+event that (i) stock in the entity which constitutes Tenant under this Lease (as
+opposed to an entity that "controls" Tenant or is otherwise an "affiliate" of
+Tenant, as those terms are defined in Section 14.8 of this Lease) is publicly
+traded on a national stock exchange, and (ii) Tenant has its own, separate and
+distinct 10K and 10Q filing requirements (as opposed joint or cumulative filings
+with an entity that controls Tenant or with entities which are otherwise
+Affiliates of Tenant), then Tenant's obligation to provide Landlord with a copy
+of its most recent current financial statement shall be deemed satisfied.
+CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (24)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr027.jpg]
+Page(s) ARTICLE 18 SUBORDINATION This Lease shall be subject and subordinate to
+all present and future ground or underlying leases of the Building or Project
+and to the lien of any mortgage, trust deed or other encumbrances now or
+hereafter in force against the Building or Project or any part thereof, if any,
+and to all renewals, extensions, modifications, consolidations and replacements
+thereof, and to all advances made or hereafter to be made upon the security of
+such mortgages or trust deeds, unless the holders of such mortgages, trust deeds
+or other encumbrances, or the lessors under such ground lease or underlying
+leases, require in writing that this Lease be superior thereto. Tenant covenants
+and agrees in the event any proceedings are brought for the foreclosure of any
+such mortgage or deed in lieu thereof (or if any ground lease is terminated), to
+attorn, without any deductions or set-offs whatsoever, to the lienholder or
+purchaser or any successors thereto upon any such foreclosure sale or deed in
+lieu thereof (or to the ground lessor), if so requested to do so by such
+purchaser or lienholder or ground lessor, and to recognize such purchaser or
+lienholder or ground lessor as the lessor under this Lease, provided such
+lienholder or purchaser or ground lessor shall agree to accept this Lease and
+not disturb Tenant's occupancy, so long as Tenant timely pays the rent and
+observes and performs the terms, covenants and conditions of this Lease to be
+observed and performed by Tenant. Landlord's interest herein may be assigned as
+security at any time to any lienholder. Tenant shall, within ten (10) days of
+request by Landlord, execute such further instruments or assurances as Landlord
+may reasonably deem necessary to evidence or confirm the subordination or
+superiority of this Lease to any such mortgages, trust deeds, ground leases or
+underlying leases. Tenant waives the provisions of any current or future
+statute, rule or law which may give or purport to give Tenant any right or
+election to terminate or otherwise adversely affect this Lease and the
+obligations of the Tenant hereunder in the event of any foreclosure proceeding
+or sale. ARTICLE 19 DEFAULTS; REMEDIES 19.1 Events of Default. The occurrence of
+any of the following shall constitute a default of this Lease by Tenant: 19.1.1
+Any failure by Tenant to pay any Rent or any other charge required to be paid
+under this Lease, or any part thereof, when due unless such failure is cured
+within five (5) business days after the date due; or 19.1.2 Except where a
+specific time period is otherwise set forth for Tenant's performance in this
+Lease, in which event the failure to perform by Tenant within such time period
+shall be a default by Tenant under this Section 19.1.2, any failure by Tenant to
+observe or perform any other provision, covenant or condition of this Lease to
+be observed or performed by Tenant where such failure continues for thirty (30)
+days after written notice thereof from Landlord to Tenant; provided that if the
+nature of such default is such that the same cannot reasonably be cured within a
+thirty (30) day period, Tenant shall not be deemed to be in default if it
+diligently commences such cure within such period and thereafter diligently
+proceeds to rectify and cure such default; or 19.1.3 Abandonment pursuant to
+Applicable Law of the Premises by Tenant; or 19.1.4 The failure by Tenant to
+observe or perform according to the provisions of Articles 5, 14, 17 or 18 of
+this Lease where such failure continues for more than two (2) business days
+after notice from Landlord; or 19.1.5 Tenant's failure to occupy the Premises
+within thirty (30) business days after the Lease Commencement Date. The notice
+periods provided herein are in lieu of, and not in addition to, any notice
+periods provided by law. CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (25) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr028.jpg]
+Page(s) 19.2 Remedies Upon Default. Upon the occurrence of any event of default
+by Tenant, Landlord shall have, in addition to any other remedies available to
+Landlord at law or in equity (all of which remedies shall be distinct, separate
+and cumulative), the option to pursue any one or more of the following remedies,
+each and all of which shall be cumulative and nonexclusive, without any notice
+or demand whatsoever. 19.2.1 Terminate this Lease, in which event Tenant shall
+immediately surrender the Premises to Landlord, and if Tenant fails to do so,
+Landlord may, without prejudice to any other remedy which it may have for
+possession or arrearages in rent, enter upon and take possession of the Premises
+and expel or remove Tenant and any other person who may be occupying the
+Premises or any part thereof, without being liable for prosecution or any claim
+or damages therefor; and Landlord may recover from Tenant the following: (i) The
+worth at the time of award of the unpaid rent which has been earned at the time
+of such termination; plus (ii) The worth at the time of award of the amount by
+which the unpaid rent which would have been earned after termination until the
+time of award exceeds the amount of such rental loss that Tenant proves could
+have been reasonably avoided; plus (iii) The worth at the time of award of the
+amount by which the unpaid rent for the balance of the Lease Term after the time
+of award exceeds the amount of such rental loss that Tenant proves could have
+been reasonably avoided; plus (iv) Any other amount necessary to compensate
+Landlord for all the detriment proximately caused by Tenant's failure to perform
+its obligations under this Lease or which in the ordinary course of things would
+be likely to result therefrom, specifically including but not limited to,
+brokerage commissions and advertising expenses incurred, expenses of remodeling
+the Premises or any portion thereof for a new tenant, whether for the same or a
+different use, and any special concessions made to obtain a new tenant; and (v)
+At Landlord's election, such other amounts in addition to or in lieu of the
+foregoing as may be permitted from time to time by applicable law. The term
+"rent" as used in this Section 19.2 shall be deemed to be and to mean all sums
+of every nature required to be paid by Tenant pursuant to the terms of this
+Lease, whether to Landlord or to others. As used in Sections 19.2.1(i) and (ii),
+above, the "worth at the time of award" shall be computed by allowing interest
+at the rate set forth in Article 25 of this Lease, but in no case greater than
+the maximum amount of such interest permitted by law. As used in Section
+19.2.1(iii) above, the "worth at the time of award" shall be computed by
+discounting such amount at the discount rate of the Federal Reserve Bank of San
+Francisco at the time of award plus one percent (1%). 19.2.2 Landlord shall have
+the remedy described in California Civil Code Section 1951.4 (lessor may
+continue lease in effect after lessee's breach and abandonment and recover rent
+as it becomes due, if lessee has the right to sublet or assign, subject only to
+reasonable limitations). Accordingly, if Landlord does not elect to terminate
+this Lease on account of any default by Tenant, Landlord may, from time to time,
+without terminating this Lease, enforce all of its rights and remedies under
+this Lease, including the right to recover all rent as it becomes due. 19.2.3
+Landlord shall at all times have the rights and remedies (which shall be
+cumulative with each other and cumulative and in addition to those rights and
+remedies available under Sections 19.2.1 and 19.2.2, above, or any law or other
+provision of this Lease), without prior demand or notice except as required by
+applicable law, to seek any declaratory, injunctive or other equitable relief,
+and specifically enforce this Lease, or restrain or enjoin a violation or breach
+of any provision hereof. 19.3 Subleases of Tenant. Whether or not Landlord
+elects to terminate this Lease on account of any default by Tenant, as set forth
+in this Article 19, Landlord shall have the right to terminate any and all
+subleases, licenses, concessions or other consensual arrangements for possession
+entered into by Tenant and affecting the CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (26) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr029.jpg]
+Page(s) Premises or may, in Landlord's sole discretion, succeed to Tenant's
+interest in such subleases, licenses, concessions or arrangements. In the event
+of Landlord's election to succeed to Tenant's interest in any such subleases,
+licenses, concessions or arrangements, Tenant shall, as of the date of notice by
+Landlord of such election, have no further right to or interest in the rent or
+other consideration receivable thereunder. 19.4 Efforts to Relet. No re-entry or
+repossession, repairs, maintenance, changes, alterations and additions,
+reletting, appointment of a receiver to protect Landlord's interests hereunder,
+or any other action or omission by Landlord shall be construed as an election by
+Landlord to terminate this Lease or Tenant's right to possession, or to accept a
+surrender of the Premises, nor shall same operate to release Tenant in whole or
+in part from any of Tenant's obligations hereunder, unless express written
+notice of such intention is sent by Landlord to Tenant. Tenant hereby
+irrevocably waives any right otherwise available under any law to redeem or
+reinstate this Lease. ARTICLE 20 COVENANT OF QUIET ENJOYMENT Landlord covenants
+that Tenant, on paying the Rent, charges for services and other payments herein
+reserved and on keeping, observing and performing all the other terms,
+covenants, conditions, provisions and agreements herein contained on the part of
+Tenant to be kept, observed and performed, shall, during the Lease Term,
+peaceably and quietly have, hold and enjoy the Premises subject to the terms,
+covenants, conditions, provisions and agreements hereof without interference by
+any persons lawfully claiming by or through Landlord. The foregoing covenant is
+in lieu of any other covenant express or implied. ARTICLE 21 SECURITY DEPOSIT
+Concurrently with Tenant's execution of this Lease, Tenant shall deposit with
+Landlord a security deposit (the "Security Deposit") in the amount set forth in
+Section 7 of the Summary, as security for the faithful performance by Tenant of
+all of its obligations under this Lease. If Tenant defaults with respect to any
+provisions of this Lease, including, but not limited to, the provisions relating
+to the payment of Rent, the removal of property and the repair of resultant
+damage, Landlord may, without notice to Tenant, but shall not be required to
+apply all or any part of the Security Deposit for the payment of any Rent or any
+other sum in default and Tenant shall, upon demand therefor, restore the
+Security Deposit to its original amount. Any unapplied portion of the Security
+Deposit shall be returned to Tenant, or, at Landlord's option, to the last
+assignee of Tenant's interest hereunder, within sixty (60) days following the
+expiration of the Lease Term. Tenant shall not be entitled to any interest on
+the Security Deposit. Tenant hereby waives the provisions of Section 1950.7 of
+the California Civil Code, or any successor statute and all other provisions of
+law, now or hereafter in effect, which (i) establish the time frame by which a
+landlord must refund a security deposit under a lease, and/or (ii) provide that
+a landlord may claim from a security deposit only those sums reasonably
+necessary to remedy defaults in the payment of rent, to repair damage caused by
+a tenant or to clean the premises, it being agreed that Landlord may, in
+addition, claim those sums specified in this Section above and/or those sums
+reasonably necessary to compensate Landlord for any loss or damage caused by
+Tenant's default of this Lease, including, but not limited to, all damages or
+rent due upon termination of this Lease pursuant to Section 1951.2 of the
+California Civil Code. ARTICLE 22 SUBSTITUTION OF OTHER PREMISES Landlord shall
+have the right to move Tenant to other space in the Project comparable to the
+Premises (e.g. comparable finishes, comparable number of office, comparable
+doors and hardware), and all terms hereof shall apply to the new space with
+equal force; provided that Tenant's then existing monetary obligations under
+this Lease shall not be increased as a result of such relocation of the
+Premises. In such event, Landlord shall give Tenant prior notice, shall provide
+Tenant, at Landlord's sole cost and expense, with tenant improvements at least
+equal in quality to those in the Premises and shall move Tenant's effects to the
+new space at Landlord's sole cost and expense at such time and CROSSROADS
+811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (27) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr030.jpg]
+Page(s) in such manner as to inconvenience Tenant as little as reasonably
+practicable. In addition, Landlord shall reimburse Tenant for the reasonable
+costs and expenses incurred by Tenant in connection with such relocation
+(including, but not limited to, the costs of reasonable supplies of replacement
+stationery and communication and telephone installations), within thirty (30)
+days of Landlord's receipt of an invoice therefor. Simultaneously with such
+relocation of the Premises, the parties shall immediately execute an amendment
+to this Lease stating the relocation of the Premises, provided, however, that
+notwithstanding the foregoing, (i) in no event shall the rentable area of the
+Relocation Space be less than one hundred percent (100%) of the rentable area of
+the Premises; and (ii) Tenant's Base Rent shall not increase as a result of such
+relocation. ARTICLE 23 SIGNS 23.1 Full Floors. Subject to Landlord's prior
+written approval, in its sole discretion, and provided all signs are in keeping
+with the quality, design and style of the Building and Project, Tenant, if the
+Premises comprise an entire floor of the Building, at its sole cost and expense,
+may install identification signage anywhere in the Premises including in the
+elevator lobby of the Premises, provided that such signs must not be visible
+from the exterior of the Building. 23.2 Multi-Tenant Floors. If other tenants
+occupy space on the floor on which the Premises is located, Tenant's identifying
+signage near the entry to the Premises shall be provided by Landlord, at
+Tenant's cost, and such signage shall be comparable to that used by Landlord for
+other similar floors in the Building and shall comply with Landlord's
+then-current Building standard signage program. 23.3 Prohibited Signage and
+Other Items. Any signs, notices, logos, pictures, names or advertisements which
+are installed and that have not been separately approved by Landlord may be
+removed without notice by Landlord at the sole expense of Tenant. Tenant may not
+install any signs on the exterior or roof of the Project or the Common Areas.
+Any signs, window coverings, or blinds (even if the same are located behind the
+Landlord-approved window coverings for the Building), or other items visible
+from the exterior of the Premises or Building, shall be subject to the prior
+approval of Landlord, in its sole discretion. 23.4 Building Directory. Tenant
+shall have the right, at Tenant's sole cost and expense, to designate one (1)
+name strip on the Building directory (as and to the extent any directory exists
+at the Building), and any subsequent changes to Tenant's name strip shall be
+following Tenant's receipt of Landlord's reasonable consent thereto. ARTICLE 24
+COMPLIANCE WITH LAW Tenant shall not do anything or suffer anything to be done
+in or about the Premises or the Project which will in any way conflict with any
+law, statute, ordinance or other governmental rule, regulation or requirement
+now in force or which may hereafter be enacted or promulgated. At its sole cost
+and expense, Tenant shall promptly comply with all such governmental measures.
+Should any standard or regulation now or hereafter be imposed on Landlord or
+Tenant by a state, federal or local governmental body charged with the
+establishment, regulation and enforcement of occupational, health or safety
+standards for employers, employees, landlords or tenants, then Tenant agrees, at
+its sole cost and expense, to comply promptly with such standards or
+regulations. Tenant shall be responsible, at its sole cost and expense, to make
+all alterations to the Premises as are required to comply with the governmental
+rules, regulations, requirements or standards described in this Article 24. The
+judgment of any court of competent jurisdiction or the admission of Tenant in
+any judicial action, regardless of whether Landlord is a party thereto, that
+Tenant has violated any of said governmental measures, shall be conclusive of
+that fact as between Landlord and Tenant. For purposes of Section 1938 of the
+California Civil Code, Landlord hereby discloses to Tenant, and Tenant hereby
+acknowledges, that the Premises have not undergone inspection by a Certified
+Access Specialist (CASp). As required by Section 1938(e) of the California Civil
+Code, Landlord hereby states as follows: "A Certified Access Specialist (CASp)
+can inspect the subject premises and determine whether the subject premises
+comply with all of the CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (28) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr031.jpg]
+Page(s) applicable construction-related accessibility standards under state law.
+Although state law does not require a CASp inspection of the subject premises,
+the commercial property owner or lessor may not prohibit the lessee or tenant
+from obtaining a CASp inspection of the subject premises for the occupancy or
+potential occupancy of the lessee or tenant, if requested by the lessee or
+tenant. The parties shall mutually agree on the arrangements for the time and
+manner of the CASp inspection, the payment of the fee for the CASp inspection,
+and the cost of making any repairs necessary to correct violations of
+construction-related accessibility standards within the premises." In
+furtherance of the foregoing, Landlord and Tenant hereby agree as follows: (a)
+any CASp inspection requested by Tenant shall be conducted, at Tenant's sole
+cost and expense, by a CASp approved in advance by Landlord; and (b) pursuant to
+this Article 24 above, Tenant, at its cost, is responsible for making any
+repairs within the Premises to correct violations of construction- related
+accessibility standards identified by such CASp inspection requested by Tenant,
+in accordance with the terms of Article 8 above. ARTICLE 25 LATE CHARGES If any
+installment of Rent or any other sum due from Tenant shall not be received by
+Landlord or Landlord's designee within five (5) business days after Tenant's
+receipt of written notice from Landlord that said amount is due, then Tenant
+shall pay to Landlord a late charge equal to ten percent (10%) of the overdue
+amount plus any reasonable attorneys' fees incurred by Landlord by reason of
+Tenant's failure to pay Rent and/or other charges when due hereunder.
+Notwithstanding the foregoing, Tenant shall be entitled to notice upon the
+expiration of a five (5) day cure period prior to imposition of any late charge
+under this Article 25 one (1) time per twelve (12) month period; after such
+written notice has been provided to Tenant in a twelve (12) month period, Tenant
+shall not be entitled to any further notice prior to imposition of a late charge
+under this Article 25 in such twelve (12) month period. The late charge shall be
+deemed Additional Rent and the right to require it shall be in addition to all
+of Landlord's other rights and remedies hereunder or at law and shall not be
+construed as liquidated damages or as limiting Landlord's remedies in any
+manner. In addition to the late charge described above, any Rent or other
+amounts owing hereunder which are not paid within ten (10) days after the date
+they are due shall bear interest from the date when due until paid at a rate per
+annum equal to the lesser of (i) the annual "Bank Prime Loan" rate cited in the
+Federal Reserve Statistical Release Publication H.15, published on the first
+Tuesday of each calendar month (or such other comparable index as Landlord and
+Tenant shall reasonably agree upon if such rate ceases to be published) plus two
+(2) percentage points, and (ii) the highest rate permitted by applicable law.
+ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT 26.1 Landlord's
+Cure. All covenants and agreements to be kept or performed by Tenant under this
+Lease shall be performed by Tenant at Tenant's sole cost and expense and without
+any reduction of Rent, except to the extent, if any, otherwise expressly
+provided herein. If Tenant shall fail to perform any obligation under this
+Lease, and such failure shall continue in excess of the time allowed under
+Section 19.1.2, above, unless a specific time period is otherwise stated in this
+Lease, Landlord may, but shall not be obligated to, make any such payment or
+perform any such act on Tenant's part without waiving its rights based upon any
+default of Tenant and without releasing Tenant from any obligations hereunder.
+26.2 Tenant's Reimbursement. Except as may be specifically provided to the
+contrary in this Lease, Tenant shall pay to Landlord, upon delivery by Landlord
+to Tenant of statements therefor: (i) sums equal to expenditures reasonably made
+and obligations incurred by Landlord in connection with the remedying by
+Landlord of Tenant's defaults pursuant to the provisions of Section 26.1; (ii)
+sums equal to all losses, costs, liabilities, damages and expenses referred to
+in Article 10 of this Lease; and (iii) sums equal to all expenditures made and
+obligations incurred by Landlord in collecting or attempting to collect the Rent
+or in enforcing or attempting to enforce any rights of Landlord under this Lease
+or pursuant to law, including, without limitation, all reasonable legal fees and
+other amounts so expended. Tenant's obligations under this Section 26.2 shall
+survive the expiration or sooner termination of the Lease Term. CROSSROADS
+811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (29) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr032.jpg]
+Page(s) ARTICLE 27 ENTRY BY LANDLORD Landlord reserves the right at all
+reasonable times and upon at least 24 hours' notice to Tenant, which notice may
+be verbal (except in the case of an emergency, where no notice shall be
+required), to enter the Premises to (i) inspect them; (ii) show the Premises to
+prospective purchasers, or to current or prospective mortgagees, ground or
+underlying lessors or insurers or, during the last twelve (12) months of the
+Lease Term, to prospective tenants; (iii) post notices of nonresponsibility; or
+(iv) alter, improve or repair the Premises or the Building, or for structural
+alterations, repairs or improvements to the Building or the Building's systems
+and equipment. Notwithstanding anything to the contrary contained in this
+Article 27, Landlord may enter the Premises at any time to (A) perform services
+required of Landlord, including janitorial service; (B) take possession due to
+any breach of this Lease in the manner provided herein; and (C) perform any
+covenants of Tenant which Tenant fails to perform. Landlord may make any such
+entries without the abatement of Rent, except as otherwise provided in this
+Lease, and may take such reasonable steps as required to accomplish the stated
+purposes. Except in the case of an emergency, Tenant shall have the right to
+have a representative of Tenant accompany the entrant, provided that Tenant's
+representative is reasonably available. Tenant hereby waives any claims for
+damages or for any injuries or inconvenience to or interference with Tenant's
+business, lost profits, any loss of occupancy or quiet enjoyment of the
+Premises, and any other loss occasioned thereby. For each of the above purposes,
+Landlord shall at all times have a key with which to unlock all the doors in the
+Premises, excluding Tenant's vaults, safes and special security areas designated
+in advance by Tenant. In an emergency, Landlord shall have the right to use any
+means that Landlord may deem proper to open the doors in and to the Premises.
+Any entry into the Premises by Landlord in the manner hereinbefore described
+shall not be deemed to be a forcible or unlawful entry into, or a detainer of,
+the Premises, or an actual or constructive eviction of Tenant from any portion
+of the Premises. No provision of this Lease shall be construed as obligating
+Landlord to perform any repairs, alterations or decorations except as otherwise
+expressly agreed to be performed by Landlord herein. ARTICLE 28 TENANT PARKING
+Tenant shall have the right to rent from Landlord, commencing on the Lease
+Commencement Date, the amount of parking passes set forth in Section 8 of the
+Summary, on a monthly basis throughout the Lease Term, which parking passes
+shall pertain to Project parking areas. Tenant shall pay to Landlord for
+automobile parking passes on a monthly basis the prevailing rate charged from
+time to time at the location of such parking passes; provided that during the
+initial Lease Term only, such parking passes shall be free of charge (except for
+any taxes as contemplated by the next sentence). In addition, Tenant shall be
+responsible for the full amount of any taxes imposed by any governmental
+authority in connection with the renting of such parking passes by Tenant or the
+use of the parking facility by Tenant. Tenant's continued right to use the
+parking passes is conditioned upon Tenant abiding by all rules and regulations
+which are prescribed from time to time for the orderly operation and use of the
+parking facility where the parking passes are located (including any sticker or
+other identification system established by Landlord and the prohibition of
+vehicle repair and maintenance activities in the Project's parking facilities),
+Tenant's cooperation in seeing that Tenant's employees and visitors also comply
+with such rules and regulations and Tenant not being in default under this
+Lease. Tenant's use of the Project parking facility shall be at Tenant's sole
+risk and Tenant acknowledges and agrees that Landlord shall have no liability
+whatsoever for damage to the vehicles of Tenant, its employees and/or visitors,
+or for other personal injury or property damage or theft relating to or
+connected with the parking rights granted herein or any of Tenant's, its
+employees' and/or visitors' use of the parking facilities. Tenant's rights
+hereunder are subject to the terms of any Underlying Documents. Landlord
+specifically reserves the right to change the size, configuration, design,
+layout and all other aspects of the Project parking facility at any time
+(provided that Tenant's parking rights are not reduced as a result thereof) and
+Tenant acknowledges and agrees that Landlord may, without incurring any
+liability to Tenant and without any abatement of Rent under this Lease, from
+time to time, temporarily close-off or restrict access to the Project parking
+facility for purposes of permitting or facilitating any such construction,
+alteration or improvements. Landlord shall use commercially reasonable efforts
+to cause any such work to be conducted in a manner designed to minimize
+inconvenience to the Tenant Parties and to provide alternative parking (if
+necessary), at no additional cost to Tenant. Landlord may delegate its
+responsibilities hereunder to a parking operator in which case such parking
+operator shall have all the rights of control attributed hereby to the
+CROSSROADS 811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (30)
+[Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr033.jpg]
+Page(s) Landlord. The parking passes rented by Tenant pursuant to this Article
+28 are provided to Tenant solely for use by Tenant's own personnel and such
+passes may not be transferred, assigned, subleased or otherwise alienated by
+Tenant without Landlord's prior approval. Tenant may validate visitor parking by
+such method or methods as the Landlord may establish, at the validation rate
+from time to time generally applicable to visitor parking. ARTICLE 29
+MISCELLANEOUS PROVISIONS 29.1 Terms; Captions. The words "Landlord" and "Tenant"
+as used herein shall include the plural as well as the singular. The necessary
+grammatical changes required to make the provisions hereof apply either to
+corporations or partnerships or individuals, men or women, as the case may
+require, shall in all cases be assumed as though in each case fully expressed.
+The captions of Articles and Sections are for convenience only and shall not be
+deemed to limit, construe, affect or alter the meaning of such Articles and
+Sections. 29.2 Binding Effect. Subject to all other provisions of this Lease,
+each of the covenants, conditions and provisions of this Lease shall extend to
+and shall, as the case may require, bind or inure to the benefit not only of
+Landlord and of Tenant, but also of their respective heirs, personal
+representatives, successors or assigns, provided this clause shall not permit
+any assignment by Tenant contrary to the provisions of Article 14 of this Lease.
+29.3 No Air Rights. No rights to any view or to light or air over any property,
+whether belonging to Landlord or any other person, are granted to Tenant by this
+Lease. If at any time any windows of the Premises are temporarily darkened or
+the light or view therefrom is obstructed by reason of any repairs,
+improvements, maintenance or cleaning in or about the Project, the same shall be
+without liability to Landlord and without any reduction or diminution of
+Tenant's obligations under this Lease. 29.4 Modification of Lease. Should any
+current or prospective mortgagee or ground lessor for the Building or Project
+require a modification of this Lease, which modification will not cause an
+increased cost or expense to Tenant or in any other way materially and adversely
+change the rights and obligations of Tenant hereunder, then and in such event,
+Tenant agrees that this Lease may be so modified and agrees to execute whatever
+documents are reasonably required therefor and to deliver the same to Landlord
+within ten (10) business days following a request therefor. At the request of
+Landlord or any mortgagee or ground lessor, Tenant agrees to execute a short
+form of Lease and deliver the same to Landlord within ten (10) business days
+following the request therefor. 29.5 Transfer of Landlord's Interest. Tenant
+acknowledges that Landlord has the right to transfer all or any portion of its
+interest in the Project or Building and in this Lease, and Tenant agrees that in
+the event of any such transfer, Landlord shall automatically be released from
+all liability under this Lease and Tenant agrees to look solely to such
+transferee for the performance of Landlord's obligations hereunder after the
+date of transfer and such transferee shall be deemed to have fully assumed and
+be liable for all obligations of this Lease to be performed by Landlord,
+including the return of any Security Deposit, and Tenant shall attorn to such
+transferee. 29.6 Prohibition Against Recording. Except as provided in Section
+29.4 of this Lease, neither this Lease, nor any memorandum, affidavit or other
+writing with respect thereto, shall be recorded by Tenant or by anyone acting
+through, under or on behalf of Tenant. 29.7 Landlord's Title. Landlord's title
+is and always shall be paramount to the title of Tenant. Nothing herein
+contained shall empower Tenant to do any act which can, shall or may encumber
+the title of Landlord. 29.8 Relationship of Parties. Nothing contained in this
+Lease shall be deemed or construed by the parties hereto or by any third party
+to create the relationship of principal and agent, partnership, joint venturer
+or any association between Landlord and Tenant. CROSSROADS 811068.04/WLA Office
+Lease 375985-00061/1-24-20/cb/ejs (31) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr034.jpg]
+Page(s) 29.9 Application of Payments. Landlord shall have the right to apply
+payments received from Tenant pursuant to this Lease, regardless of Tenant's
+designation of such payments, to satisfy any obligations of Tenant hereunder, in
+such order and amounts as Landlord, in its sole discretion, may elect. 29.10
+Time of Essence. Time is of the essence with respect to the performance of every
+provision of this Lease in which time of performance is a factor. 29.11 Partial
+Invalidity. If any term, provision or condition contained in this Lease shall,
+to any extent, be invalid or unenforceable, the remainder of this Lease, or the
+application of such term, provision or condition to persons or circumstances
+other than those with respect to which it is invalid or unenforceable, shall not
+be affected thereby, and each and every other term, provision and condition of
+this Lease shall be valid and enforceable to the fullest extent possible
+permitted by law. 29.12 No Warranty. In executing and delivering this Lease,
+Tenant has not relied on any representations, including, but not limited to, any
+representation as to the amount of any item comprising Additional Rent or the
+amount of the Additional Rent in the aggregate or that Landlord is furnishing
+the same services to other tenants, at all, on the same level or on the same
+basis, or any warranty or any statement of Landlord which is not set forth
+herein or in one or more of the exhibits attached hereto. 29.13 Landlord
+Exculpation. The liability of Landlord or the Landlord Parties to Tenant for any
+default by Landlord under this Lease or arising in connection herewith or with
+Landlord's operation, management, leasing, repair, renovation, alteration or any
+other matter relating to the Project or the Premises shall be limited solely and
+exclusively to an amount which is equal to the interest of Landlord in the
+Building, provided that in no event shall such liability extend to any sales or
+insurance proceeds received by Landlord or the Landlord Parties in connection
+with the Project, Building or Premises. Neither Landlord, nor any of the
+Landlord Parties shall have any personal liability therefor, and Tenant hereby
+expressly waives and releases such personal liability on behalf of itself and
+all persons claiming by, through or under Tenant. The limitations of liability
+contained in this Section 29.13 shall inure to the benefit of Landlord's and the
+Landlord Parties' present and future partners, beneficiaries, officers,
+directors, trustees, shareholders, agents and employees, and their respective
+partners, heirs, successors and assigns. Under no circumstances shall any
+present or future partner of Landlord (if Landlord is a partnership), or trustee
+or beneficiary (if Landlord or any partner of Landlord is a trust), have any
+liability for the performance of Landlord's obligations under this Lease.
+Notwithstanding any contrary provision herein, neither Landlord nor the Landlord
+Parties shall be liable under any circumstances for injury or damage to, or
+interference with, Tenant's business, including but not limited to, loss of
+profits, loss of rents or other revenues, loss of business opportunity, loss of
+goodwill or loss of use, in each case, however occurring. 29.14 Entire
+Agreement. It is understood and acknowledged that there are no oral agreements
+between the parties hereto affecting this Lease and this Lease constitutes the
+parties' entire agreement with respect to the leasing of the Premises and
+supersedes and cancels any and all previous negotiations, arrangements,
+brochures, agreements and understandings, if any, between the parties hereto or
+displayed by Landlord to Tenant with respect to the subject matter thereof, and
+none thereof shall be used to interpret or construe this Lease. None of the
+terms, covenants, conditions or provisions of this Lease can be modified,
+deleted or added to except in writing signed by the parties hereto. 29.15 Right
+to Lease. Landlord reserves the absolute right to effect such other tenancies in
+the Project as Landlord in the exercise of its sole business judgment shall
+determine to best promote the interests of the Building or Project. Tenant does
+not rely on the fact, nor does Landlord represent, that any specific tenant or
+type or number of tenants shall, during the Lease Term, occupy any space in the
+Building or Project. 29.16 Force Majeure. Any prevention, delay or stoppage due
+to strikes, lockouts, labor disputes, acts of God, acts of war, terrorist acts,
+inability to obtain services, labor, or materials or reasonable substitutes
+therefor, governmental actions, civil commotions, fire or other casualty, and
+other causes beyond the reasonable control of the party obligated to perform,
+except with respect to the obligations imposed with regard to Rent and other
+charges to be paid by Tenant pursuant to this Lease (collectively, a "Force
+Majeure"), notwithstanding anything to the contrary contained in this Lease,
+shall excuse the performance of such party for a period equal to any such
+prevention, delay CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (32) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr035.jpg]
+Page(s) or stoppage and, therefore, if this Lease specifies a time period for
+performance of an obligation of either party, that time period shall be extended
+by the period of any delay in such party's performance caused by a Force
+Majeure. 29.17 Waiver of Redemption by Tenant. Tenant hereby waives, for Tenant
+and for all those claiming under Tenant, any and all rights now or hereafter
+existing to redeem by order or judgment of any court or by any legal process or
+writ, Tenant's right of occupancy of the Premises after any termination of this
+Lease. 29.18 Notices. All notices, demands, statements, designations, approvals
+or other communications (collectively, "Notices") given or required to be given
+by either party to the other hereunder or by law shall be in writing, shall be
+(A) sent by United States certified or registered mail, postage prepaid, return
+receipt requested ("Mail"), (B) delivered by a nationally recognized overnight
+courier, or (C) delivered personally. Any Notice shall be sent, transmitted, or
+delivered, as the case may be, to Tenant at the appropriate address set forth in
+Section 9 of the Summary, or to such other place as Tenant may from time to time
+designate in a Notice to Landlord, or to Landlord at the addresses set forth
+below, or to such other places as Landlord may from time to time designate in a
+Notice to Tenant. Any Notice will be deemed given (i) three (3) days after the
+date it is posted if sent by Mail, (ii) the date the overnight courier delivery
+is made, or (iii) the date personal delivery is made. As of the date of this
+Lease, any Notices to Landlord must be sent, transmitted, or delivered, as the
+case may be, to the following addresses: c/o Beacon Capital Partners, LLC 44
+Montgomery Street, Suite 1210 San Francisco, CA 94104 Attention: Mr. McClure
+Kelly and c/o Beacon Capital Partners, LLC 200 State Street, 5th Floor Boston,
+Massachusetts 02109 Attention: General Counsel and Allen Matkins Leck Gamble
+Mallory & Natsis LLP 1901 Avenue of the Stars Suite 1800 Los Angeles, California
+90067 Attention: Anton N. Natsis, Esq. 29.19 Joint and Several. If there is more
+than one Tenant, the obligations imposed upon Tenant under this Lease shall be
+joint and several. 29.20 Authority. If Tenant is a corporation, trust or
+partnership, each individual executing this Lease on behalf of Tenant hereby
+represents and warrants that Tenant is a duly formed and existing entity
+qualified to do business in California and that Tenant has full right and
+authority to execute and deliver this Lease and that each person signing on
+behalf of Tenant is authorized to do so. In such event, Tenant shall, within ten
+(10) days after execution of this Lease, deliver to Landlord satisfactory
+evidence of such authority and, if a corporation, upon demand by Landlord, also
+deliver to Landlord satisfactory evidence of (i) good standing in Tenant's state
+of incorporation and (ii) qualification to do business in California. 29.21
+Attorneys' Fees. In the event that either Landlord or Tenant should bring suit
+for the possession of the Premises, for the recovery of any sum due under this
+Lease, or because of the breach of any provision of this Lease or for any other
+relief against the other, then all costs and expenses, including reasonable
+attorneys' fees, incurred by the prevailing party therein shall be paid by the
+other party, which obligation on the part of the other party shall be deemed to
+have accrued on the date of the commencement of such action and shall be
+enforceable whether or not the action is prosecuted to judgment. CROSSROADS
+811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (33) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr036.jpg]
+Page(s) 29.22 Governing Law; WAIVER OF TRIAL BY JURY. This Lease shall be
+construed and enforced in accordance with the laws of the State of California.
+IN ANY ACTION OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT
+TO (I) THE JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF CALIFORNIA,
+(II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY CALIFORNIA LAW, AND (III) TO
+THE EXTENT PERMITTED BY APPLICABLE LAW, IN THE INTEREST OF SAVING TIME AND
+EXPENSE, TRIAL WITHOUT A JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
+BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR THEIR SUCCESSORS IN RESPECT
+OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP
+OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY
+CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. IN THE EVENT
+LANDLORD COMMENCES ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT
+OR ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR
+DESCRIPTION (UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING
+OR ACTION, BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW. 29.23
+Submission of Lease. Submission of this instrument for examination or signature
+by Tenant does not constitute a reservation of, option for or option to lease,
+and it is not effective as a lease or otherwise until execution and delivery by
+both Landlord and Tenant. 29.24 Brokers. Landlord and Tenant hereby warrant to
+each other that they have had no dealings with any real estate broker or agent
+in connection with the negotiation of this Lease, excepting only the real estate
+brokers or agents specified in Section 11 of the Summary (the "Brokers"), and
+that they know of no other real estate broker or agent who is entitled to a
+commission in connection with this Lease. Each party agrees to indemnify and
+defend the other party against and hold the other party harmless from any and
+all claims, demands, losses, liabilities, lawsuits, judgments, costs and
+expenses (including without limitation reasonable attorneys' fees) with respect
+to any leasing commission or equivalent compensation alleged to be owing on
+account of any dealings with any real estate broker or agent, other than the
+Brokers, occurring by, through, or under the indemnifying party. The terms of
+this Section 29.24 shall survive the expiration or earlier termination of the
+Lease Term. 29.25 Independent Covenants. This Lease shall be construed as though
+the covenants herein between Landlord and Tenant are independent and not
+dependent and Tenant hereby expressly waives the benefit of any statute to the
+contrary and agrees that if Landlord fails to perform its obligations set forth
+herein, Tenant shall not be entitled to make any repairs or perform any acts
+hereunder at Landlord's expense or to any setoff of the Rent or other amounts
+owing hereunder against Landlord. 29.26 Project or Building Name and Signage.
+Landlord shall have the right at any time to change the name of the Project or
+Building and to install, affix and maintain any and all signs on the exterior
+and on the interior of the Project or Building as Landlord may, in Landlord's
+sole discretion, desire. Tenant shall not use the name of the Project or
+Building or use pictures or illustrations of the Project or Building in
+advertising or other publicity or for any purpose other than as the address of
+the business to be conducted by Tenant in the Premises, without the prior
+written consent of Landlord. 29.27 Counterparts. This Lease may be executed in
+counterparts with the same effect as if both parties hereto had executed the
+same document. Both counterparts shall be construed together and shall
+constitute a single lease. 29.28 Confidentiality. Tenant acknowledges that the
+content of this Lease and any related documents are confidential information.
+Tenant shall keep such confidential information strictly confidential and shall
+not disclose such confidential information to any person or entity other than
+Tenant's financial, legal, and space planning consultants. Notwithstanding the
+foregoing, Tenant shall have the right to record the Lease with or otherwise
+provide the Lease to the Security and Exchange Commission in connection with its
+reporting and similar requirements, and Landlord agrees that such actions will
+not be a violation of this Section 29.28. CROSSROADS 811068.04/WLA Office Lease
+375985-00061/1-24-20/cb/ejs (34) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr037.jpg]
+Page(s) 29.29 Building Renovations. It is specifically understood and agreed
+that Landlord has no obligation and has made no promises to alter, remodel,
+improve, renovate, repair or decorate the Premises, Building, or any part
+thereof and that no representations respecting the condition of the Premises or
+the Building have been made by Landlord to Tenant except as specifically set
+forth herein or in the Tenant Work Letter. However, Tenant hereby acknowledges
+that Landlord is currently renovating or may during the Lease Term renovate,
+improve, alter, or modify (collectively, the "Renovations") the Project, the
+Building and/or the Premises. Tenant hereby agrees that such Renovations shall
+in no way constitute a constructive eviction of Tenant nor entitle Tenant to any
+abatement of Rent. Landlord shall have no responsibility and shall not be liable
+to Tenant for any injury to or interference with Tenant's business arising from
+the Renovations, nor shall Tenant be entitled to any compensation or damages
+from Landlord for loss of the use of the whole or any part of the Premises or of
+Tenant's personal property or improvements resulting from the Renovations, or
+for any inconvenience or annoyance occasioned by such Renovations. 29.30 No
+Violation. Tenant hereby warrants and represents that neither its execution of
+nor performance under this Lease shall cause Tenant to be in violation of any
+agreement, instrument, contract, law, rule or regulation by which Tenant is
+bound, and Tenant shall protect, defend, indemnify and hold Landlord harmless
+against any claims, demands, losses, damages, liabilities, costs and expenses,
+including, without limitation, reasonable attorneys' fees and costs, arising
+from Tenant's breach of this warranty and representation. 29.31 Communications
+and Computer Lines. Tenant may install, maintain, replace, remove or use any
+communications or computer wires and cables serving the Premises (collectively,
+the "Lines"), provided that (i) Tenant shall obtain Landlord's prior written
+consent, use an experienced and qualified contractor approved in writing by
+Landlord, and comply with all of the other provisions of Articles 7 and 8 of
+this Lease, (ii) an acceptable number of spare Lines and space for additional
+Lines shall be maintained for existing and future occupants of the Project, as
+determined in Landlord's reasonable opinion, (iii) the Lines therefor (including
+riser cables) shall be appropriately insulated to prevent excessive
+electromagnetic fields or radiation, shall be surrounded by a protective conduit
+reasonably acceptable to Landlord, and shall be identified in accordance with
+the "Identification Requirements," as that term is set forth hereinbelow, (iv)
+any new or existing Lines servicing the Premises shall comply with all
+applicable governmental laws and regulations, (v) as a condition to permitting
+the installation of new Lines, Landlord may require that Tenant remove existing
+Lines located in or serving the Premises and repair any damage in connection
+with such removal, and (vi) Tenant shall pay all costs in connection therewith.
+All Lines shall be clearly marked with adhesive plastic labels (or plastic tags
+attached to such Lines with wire) to show Tenant's name, suite number, telephone
+number and the name of the person to contact in the case of an emergency (A)
+every four feet (4') outside the Premises (specifically including, but not
+limited to, the electrical room risers and other Common Areas), and (B) at the
+Lines' termination point(s) (collectively, the "Identification Requirements").
+Landlord reserves the right, upon notice to Tenant at any time prior to the
+expiration or earlier termination of this Lease, to require that Tenant, at
+Tenant's sole cost and expense, remove any Lines located in or serving the
+Premises which were installed by or on behalf of Tenant prior to the expiration
+or earlier termination of this Lease. 29.32 Transportation Management. Tenant
+shall fully comply with all present or future programs intended to manage
+parking, transportation or traffic in and around the Project and/or the
+Building, and in connection therewith, Tenant shall take responsible action for
+the transportation planning and management of all employees located at the
+Premises by working directly with Landlord, any governmental transportation
+management organization or any other transportation-related committees or
+entities. Such programs may include, without limitation: (i) restrictions on the
+number of peak-hour vehicle trips generated by Tenant; (ii) increased vehicle
+occupancy; (iii) implementation of an in-house ridesharing program and an
+employee transportation coordinator; (iv) working with employees and any
+Project, Building or area-wide ridesharing program manager; (v) instituting
+employer-sponsored incentives (financial or in-kind) to encourage employees to
+rideshare; and (vi) utilizing flexible work shifts for employees. 29.33
+Prohibited Persons; Foreign Corrupt Practices Act and Anti-Money Laundering.
+Neither Tenant nor any of its affiliates, nor any of their respective members,
+partners or other equity holders, and none of their respective officers,
+directors or managers is, nor prior to or during the Lease Term, will become a
+person or entity with whom U.S. persons or entities are restricted from doing
+business under (a) the Patriot Act (as defined below), (b) any other
+requirements contained in the rules and regulations of the Office of Foreign
+Assets Control, Department of the Treasury (“OFAC”) (including any “blocked”
+person or entity listed in the Annex to Executive Order Nos. 12947, CROSSROADS
+811068.04/WLA Office Lease 375985-00061/1-24-20/cb/ejs (35) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr038.jpg]
+Page(s) 13099 and 13224 and any modifications thereto or thereof or any other
+person or entity named on OFAC’s Specially Designated Blocked Persons List) or
+(c) any other U.S. statute, Executive Order (including the September 24, 2001,
+Executive Order Blocking Property and Prohibiting Transactions with Persons Who
+Commit, Threaten to Commit or Support Terrorism) or other governmental action
+(collectively, “Prohibited Persons”). Prior to and during the Lease Term,
+Tenant, and to Tenant’s knowledge, its employees and any person acting on its
+behalf have at all times fully complied with, and are currently in full
+compliance with, the Foreign Corrupt Practices Act of 1977 and any other
+applicable anti-bribery or anti-corruption laws. Tenant is not entering into
+this Lease, directly or indirectly, in violation of any laws relating to drug
+trafficking, money laundering or predicate crimes to money laundering. As used
+herein, “Patriot Act” shall mean the USA Patriot Act of 2001, 107 Public Law 56
+(October 26, 2001) and all other statutes, orders, rules and regulations of the
+U.S. government and its various executive departments, agencies and offices
+interpreting and implementing the Patriot Act. CROSSROADS 811068.04/WLA Office
+Lease 375985-00061/1-24-20/cb/ejs (36) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+[a101wla-811068xv3xcrossr039.jpg]
+Page(s) IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
+executed the day and date first above written. LANDLORD: TENANT: BCSP CROSSROADS
+PROPERTY LLC, HEALTHEQUITY, INC., a Delaware limited liability company a
+Delaware corporation By: /s/ McClure Kelly By: /s/ Darcy Mott Name: McClure
+Kelly Name: Darcy Mott Title: Senior Managing Director Title: CFO Date: January
+23, 2020 The date of this Lease shall be and remain as set forth in Section 1 of
+the Summary. The date below the Landlord's signature is merely intended to
+reflect the date of Landlord's execution of this Lease. CROSSROADS 811068.04/WLA
+Office Lease 375985-00061/1-24-20/cb/ejs (37) [Healthequity, Inc.]
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+ 
+
+
+
+
+[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
+BRACKETS, HAS BEEN OMITTED BECAUSE IT IS BOTH (1) NOT MATERIAL AND (2) WOULD BE
+COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
+Exhibit 10.1
+CONTRACT FOR SALE AND PURCHASE
+OF REAL PROPERTY
+SELLER:
+DEERFIELD LAND CORPORATION,
+a Delaware corporation,
+DART INDUSTRIES, INC.,
+a Delaware corporation,
+TUPPERWARE U.S., INC.,
+a Delaware corporation,
+collectively, as Seller
+PURCHASER:
+O’CONNOR MANAGEMENT LLC
+a Delaware limited liability company
+PROPERTY:
+TUPPERWARE HEADQUARTERS SALE LEASEBACK, 37 ACRE PARCEL, OSCEOLA COUNTY LAND, AND
+ORANGE COUNTY LAND
+
+
+
+CONTRACT FOR SALE AND PURCHASE
+OF REAL PROPERTY
+THIS CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY (“Agreement”) executed as
+of the Effective Date by and between DEERFIELD LAND CORPORATION, a Delaware
+corporation (“Deerfield”), DART INDUSTRIES, INC., a Delaware corporation, and
+TUPPERWARE U.S., INC., a Delaware corporation (collectively, “Seller”), and
+O’CONNOR MANAGEMENT LLC, a Delaware limited liability company (“Purchaser”). The
+Effective Date shall be the last date on which Seller or Purchaser shall have
+executed this Agreement.
+R E C I T A L S
+A.    Seller is the owner of the real property located in Osceola County,
+Florida, more particularly described on Exhibit “A” attached hereto (the
+“Osceola County Land”), and Seller is also the owner of the real property
+located in Orange County, Florida, more particularly described on Exhibit “B”
+attached hereto (the “Orange County Land”, and collectively with the Osceola
+County Land, the “Land”);
+B.    Purchaser desires to purchase the Property (defined below) from Seller and
+Seller desires to sell the Property to Purchaser.
+C.    Seller and Purchaser have agreed that at Closing (as hereinafter defined)
+Purchaser shall lease to Tupperware Brands Corporation the Tupperware HQ Complex
+(as hereafter defined) and the Additional Land (as hereinafter defined) on which
+Tupperware Brands Corporation currently conducts its operations related to its
+global headquarters, and on which is constructed its headquarters building and
+other related buildings, structures, parking lots, internal roadways, and other
+improvements as more particularly identified on the site plan attached hereto as
+Exhibit “G” (the “HQ Site Plan”).
+D.    To effectuate the sale/leaseback transaction described in Recital C above,
+Tupperware Brands Corporation (“TBC”) and Purchaser shall enter into a Lease
+with Purchaser, as landlord, and TBC, as tenant, on terms and conditions as more
+particularly set forth in this Agreement (the “Lease”).
+E.    As part of the transactions contemplated by this Agreement, Seller shall
+assign to Purchaser all of its right, title and interest as the Class B Member
+(the “Membership”) of the Osceola Corporate Center Master Owners’ Association,
+Inc., a Florida not-for-profit corporation (the “Association”), under that
+certain Master Declaration of Covenants, Conditions, and Restrictions for
+Osceola Corporate Center recorded April 8, 2002 in Official Records Book 2030,
+page 219, of the public records of Osceola County, Florida, as amended,
+supplemented, and spread from time to time through the date hereof (the
+“Declaration”).
+NOW THEREFORE, for and in consideration of the premises and mutual covenants
+hereinafter contained and in consideration of the funds paid simultaneously with
+the execution of this Agreement, the receipt and sufficiency of which is hereby
+acknowledged, Seller agrees to sell, and Purchaser agrees to buy the Property,
+upon the following terms and conditions.
+1.Sale and Purchase. Seller hereby agrees to sell, convey, and assign to
+Purchaser and Purchaser hereby agrees to purchase and accept from Seller, for
+the Purchase Price (as hereinafter defined) and on and subject to the terms and
+conditions herein set forth, the following (collectively, the “Property”):
+(a)    the Land together with all right, title, and interest in any and all
+easements, improvements, or other rights or benefits appurtenant to or related
+to the Land, including, without, limitation, all water rights, utility rights,
+rights-of-way, roadways, parking areas, roadbeds, alleyways, reversions,
+internal roads, dumpster areas, retention ponds, stormwater management systems
+and other appurtenances and amenities serving, or used in connection with the
+beneficial use of, the same (collectively, the “Project”). The Land includes
+acreage of wetlands, conservation areas and retention ponds for related
+stormwater and surface water management purposes;
+(b)    all of Seller’s right, title and interest in and to all now or hereafter
+existing (that are executed in accordance with the provisions hereof) leases of
+all or any portion of the Project (together with any amendments thereto, the
+"Project Leases"), together with all security deposits and prepaid rents, if
+any, being held by Seller in connection with the Project Leases;
+(c)    all of Seller’s right, title and interest (i) in and to the Membership,
+(ii) as the “Developer” under the Declaration, and (iii) as the “Declarant” (or
+similar term) under any other declarations of restrictive covenants (or similar
+instruments) encumbering all or any portion of the Land (collectively, the
+“Other Declarations”);
+(d)    all personal property located upon the Project which is owned by Seller
+and which is used in connection with and for or related to the occupancy,
+management and operation of the Project (collectively, the “Personalty”);
+provided, however, that the Personalty will exclude any furniture, trade
+fixtures, materials in the design center building, equipment of Seller, and any
+personal property owned or leased by Seller or TBC or by any affiliate of Seller
+or TBC and located on the Tupperware HQ Complex or Additional Land;
+(e)    all of Seller’s right, title and interest in and to, and Seller’s copies
+of, any surveys, drawings, site plans, construction plans and specifications
+associated with the Project and operating manuals, warranties and guarantees
+covering the Project and/or the Personalty (collectively, the “Plans and
+Warranties”);
+(f)    all of Seller’s and the Association’s right, title and interest in and to
+all assignable licenses, permits, approvals and consents with respect to the
+ownership, operation or maintenance of the Project and all development rights,
+allocations of development density, trips or other similar rights allocated to
+or attributable to the Land and any improvements constructed thereon including,
+without limitation, those identified on Exhibit “F” attached hereto and made a
+part hereof (copies of which are available as part of the Property Information)
+(collectively, the “Land Use Approvals and Development Rights”);
+(g)    all of Seller’s right, title and interest in and to the Mitigation
+Credits (as hereinafter defined);
+(h)    all of Seller’s right, title and interest in and to the Impact Fee
+Credits (as hereinafter defined);
+(i)    all of Seller’s right, title and interest in and to all intangible
+personal property owned or possessed by Seller and used in connection with the
+ownership and/or development of the Project, including, without limitation, all
+trademarks, service marks, and domain names used in connection with the Property
+(collectively, the “Intangible Personal Property”); and
+(j)    all of Seller’s or the Association’s right, title and interest in and to
+all service, maintenance, utility, management and other third party contracts
+relating to the Project which are set forth on Exhibit “E” attached hereto and
+made a part hereof (collectively, and together with any amendments thereto, the
+“Third Party Contracts”) that Purchaser desires to assume at Closing, as
+indicated by written notice given to Seller prior to the expiration of the
+Inspection Period.
+All of the Property shall be conveyed, assigned and transferred to Purchaser at
+Closing (as hereinafter defined) free and clear of all liens, claims, and
+encumbrances except for the Permitted Exceptions (as hereinafter defined) and
+for taxes for the year of Closing and subsequent years which are not yet due or
+payable. Purchaser intends to develop and construct on the Land any uses
+approved under Seller’s OCC PD (hereinafter defined) and any uses approved under
+Seller’s Tupperware Heights PD (hereinafter defined) (hereinafter collectively
+referred to as the “Intended Use”).
+2.    Purchase Price and Method of Payment. The total purchase price (“Purchase
+Price”) for the Property, and the entitlements related thereto other than the
+Impact Fee Credits (as hereinafter defined) which are excluded, shall be
+Eighty-Five Million Seven Hundred Fifty Thousand and 00/100 Dollars
+($85,750,000.00). The purchase price for the Impact Fee Credits is set forth in
+Section 5 of this Agreement.
+(a)    The Purchase Price shall be payable as follows: (a) Within two (2)
+business days of the Effective Date, Purchaser shall pay to Greenberg Traurig,
+P.A. (“Escrow Agent”) an earnest money deposit of Five Hundred Thousand and
+00/100 Dollars ($500,000.00) which shall constitute the initial earnest money
+deposit (the “Initial Deposit”);
+(b)    In the event Purchaser fails to terminate this Agreement prior to the
+expiration of the Inspection Period (as hereinafter defined), Purchaser shall
+deliver to Escrow Agent, an additional deposit in the amount of One Million
+Dollars ($1,000,000.00) within five (5) days after the expiration of the
+Inspection Period (the “Additional Deposit”, and collectively with the Initial
+Deposit, the “Deposit”); and
+(c)    The balance of the funds totaling the Purchase Price, plus or minus any
+amount resulting from prorations and adjustments required by this Agreement,
+shall be paid by wire transfer to the Closing Agent’s (as hereinafter defined)
+trust account on the Closing Date. All funds payable hereunder shall be tendered
+in lawful money of the United States of America.
+(d)    The Deposit shall be held by the Escrow Agent, with a local bank in a
+non-interest-bearing account. The Deposit shall, if this transaction closes,
+become a credit in favor of Purchaser toward payment of the Purchase Price at
+Closing. If this transaction shall fail to close, the disposition of the
+Deposit, shall be as hereinafter provided.
+3.    Inspection Period.
+(a)    Purchaser shall have the period from the Effective Date until June 15,
+2020 (the “Inspection Period”), within which to conduct a general investigation
+of the Property and determine the feasibility of the Project (the “Property
+Inspection”). If Purchaser is not satisfied with the results of the Property
+Inspection or determines that it does not wish to purchase the Property, for any
+reason or for no reason whatsoever, in Purchaser’s sole and absolute discretion,
+Purchaser may elect to cancel and terminate this Agreement by transmitting
+written notice to Seller within the Inspection Period, whereupon Escrow Agent
+shall return to Purchaser the Deposit paid hereunder, and this Agreement shall
+be terminated and the parties shall be relieved of any further obligations
+hereunder which do not expressly survive termination pursuant to the provisions
+of this Agreement. Purchaser agrees that it shall use Harris Civil Engineers in
+Orlando, Florida, or whichever engineering firm is then employing Abdul Alkadry,
+for the civil engineering work for the Project. Purchaser agrees at Seller’s
+request to meet (in person or via telephone conference) on a reasonable periodic
+basis with the Seller during the Inspection Period to assess the progress of the
+due diligence and to monitor progress on any contractual deadlines occurring
+within such period. If Purchaser does not transmit to Seller a written notice of
+termination of this Agreement on or before the expiration of the Inspection
+Period, then this Paragraph 3(a) shall no longer apply and Purchaser shall be
+deemed to have accepted the Property, and all of the Initial Deposit shall
+automatically become non-refundable unless Seller defaults hereunder, or as
+otherwise provided herein. Additionally, Purchaser shall make the Additional
+Deposit required under Section 2(b) of this Agreement which Additional Deposit
+shall be non-refundable unless Seller defaults, or as otherwise provided herein.
+(b)    Purchaser, during the Inspection Period, may enter upon the Property to
+perform such reasonable acts as are necessary in order to conduct the Property
+Inspection. Attached hereto as Exhibit “C” and made a part hereof are
+instructions provided by the Seller to Purchaser such that Purchaser can access
+an electronic data site which contains copies of documentation applicable to the
+Property (the “Property Information”). Additionally, at any time during the term
+of this Agreement, in the event of a reasonable request by Purchaser, Seller
+shall provide Purchaser with copies of or access to any and all other documents
+or information that Seller has in its possession or is within Seller’s control
+about or concerning the Property, and which is not privileged, confidential or
+proprietary in nature. Purchaser may make copies of the foregoing documents
+provided that Purchaser shall not disclose the contents of them to anyone other
+than Purchaser’s advisors, consultants, attorneys, professionals, or to actual
+or potential partners, investors, tenants or lenders, and provided further that
+all such copies shall be returned to Seller or destroyed if this Agreement is
+terminated. Purchaser may continue to enter upon the Property after the
+expiration of the Inspection Period provided this Agreement remains in full
+force and effect. Purchaser, its agents, representatives or contractors shall
+enter the Property at their own risk, all such entries and studies shall be at
+Purchaser’s cost, and Seller shall have no liability for any injuries or cost
+sustained by Purchaser, its agents, employees, officers, representatives or
+contractors, unless caused by Seller’s gross negligence or willful misconduct.
+Purchaser agrees the Property shall not be unnecessarily disturbed during the
+Property Inspection and prior to Closing and agrees to promptly repair or
+restore any damage to the Property caused by such entry or entries onto the
+Property. Purchaser shall indemnify and hold harmless Seller (and its legal
+representatives, successors and assigns) from and against any and all claims,
+liens, demands, personal injury, property damage, or liability of any nature
+whatsoever proximately caused by Purchaser’s (or its agents, representatives’ or
+contractors’) entry or entries onto the Property or activities upon the
+Property, unless caused by Seller’s gross negligence or willful misconduct. This
+indemnification shall include payment of court costs and attorneys’ fees
+including those incurred in appellate proceedings.
+(c)    Purchaser’s indemnification obligations contained above shall survive any
+assignment, cancellation and termination of this Agreement.
+(d)    In the event that this Agreement is terminated for any reason other than
+a failure, refusal or inability of Seller to perform and complete any of its
+obligations hereunder, Purchaser shall, within ten (10) days after such
+termination, deliver copies of all reports and other work generated as a result
+of Purchaser’s inspections of the Property in its possession to Seller
+(excluding any detailed architectural drawings or plans of Purchaser’s proposed
+buildings, any financial analyses or market studies performed by or for
+Purchaser, and documents which are proprietary in nature or constitute
+attorney/client work product). Any such reports or other items which are
+delivered by Purchaser to Seller pursuant to this Section 3(d) shall be
+delivered without representation or warranty of any kind or nature about the
+reports or other items or the contents thereof, or the ownership, assignability,
+transferability, or usefulness thereof, or about any other thing or matter
+whatsoever.
+4.    Mitigation Credits. Purchaser hereby acknowledges that Seller has
+disclosed that Seller has purchased wetland mitigation credits in order to
+obtain various partial releases of a conservation easement, and to obtain the
+right to fill South Florida Water Management District (“SFWMD”) and U.S. Army
+Corps of Engineers (“ACOE”) jurisdictional wetlands (the collectively, the
+“Mitigation Credits”).
+5.    Assignment of Impact Fee Credits. Purchaser hereby acknowledges that
+Seller has obtained transportation impact fee credits issued to it by Orange
+County, Florida that may be used to offset transportation impact fees for any
+developments located in Zone 3/3A of the Orange County Impact Fee Zone Map
+(“Orange County”), and has previously obtained and may obtain additional
+mobility fee credits issued to it by Osceola County, Florida (“Osceola County”)
+(collectively, the “Impact Fee Credits”). The projects on which wetlands were
+permitted to be filled because of the purchase of the Mitigation Credits is set
+forth on Schedule 28(a)(xxi) attached to this Agreement. Currently, Seller does
+not have any available mobility fee credits in Osceola County to assign. To the
+extent available to Seller and not reserved for sale to a third party purchaser
+pursuant to a purchase agreement executed by Seller prior to the Effective Date
+(each, an “Impact Fee Agreement”), Purchaser hereby agrees to purchase from
+Seller at Closing any and all Impact Fee Credits that have been issued to Seller
+by Orange County and/or by Osceola County at or prior to Closing for an amount
+equal to eighty percent (80%) of the face value of the Impact Fee Credits (i.e.,
+Seller will provide Purchaser with a twenty percent (20%) discount off of the
+amount of such Impact Fee Credits). Purchaser hereby agrees that any future
+Impact Fee Credits issued to Seller after the Closing Date or made available to
+Seller after the Closing Date if an Impact Fee Agreement is terminated or a
+purchaser thereunder fails to purchase all of the reserved Impact Fee Credits
+(in either event, “Future Impact Fee Credits”) shall be the intangible personal
+property of Seller and all Future Impact Fee Credits are expressly excluded from
+the defined term “Intangible Personal Property” in this Agreement. Subject to
+this provisions of this Agreement, after Closing, Purchaser hereby agrees to
+purchase from Seller, and Seller hereby agrees to assign to Purchaser Future
+Impact Fee Credits required to satisfy Purchaser’s transportation impact fee
+payment obligations to Orange County for the issuance of a building permit to
+Purchaser, and mobility fee payment obligations to Osceola County for the
+issuance of a building permit to Purchaser, to the extent Seller has Future
+Impact Fee Credits available to assign. The price Purchaser shall pay Seller for
+Future Impact Fee Credits in either Orange County or Osceola County shall be
+eighty percent (80%) of the face value of the Future Impact Fee Credits
+purchased. In no event shall Purchaser directly pay transportation impact fees
+to Orange County or mobility fees to Osceola County or purchase Impact Fee
+Credits from any other source, unless Purchaser shall have first made a written
+offer to purchase Future Impact Fee Credits from Seller, and either (i) Seller,
+not later than five (5) business days following its receipt of such offer to
+purchase, has confirmed in writing to Purchaser that Seller has no, or less than
+the required amount of, Future Impact Fee Credits available for sale and
+purchase by Purchaser or (ii) Seller fails to assign the requested Future Impact
+Fee Credits to Purchaser at the applicable Future Impact Fee Closing (as defined
+below). In the event Purchaser pays either Osceola County or Orange County the
+mobility fees or transportation impact fees, as applicable, instead of
+purchasing Future Impact Fee Credits from Seller, to the extent Seller has
+Future Impact Fee Credits available to sell, Purchaser shall still be liable for
+payment to Seller of eighty percent (80%) of the amount of the Future Impact Fee
+Credits needed to satisfy Purchaser’s mobility fees or transportation impact
+fees, as applicable, it being agreed that payment to Seller for such amount of
+mobility fees or transportation impact fees, payable to either Osceola County or
+Orange County, respectively, is a material consideration for Seller to enter
+into this Agreement; provided, however, that notwithstanding the foregoing,
+Purchaser shall not be liable to Seller for such amounts if Purchaser is
+permitted to directly pay transportation impact fees to Orange County or
+mobility fees to Osceola County or purchase Impact Fee Credits from another
+source pursuant to the immediately preceding sentence. Seller shall deliver the
+Assignment of Impact Fee Credits (as hereinafter defined) executed at Closing to
+either Osceola County or Orange County after Closing to evidence Purchaser’s
+payment of the required mobility fees or transportation impact fees, as
+applicable. Within ten (10) business days after Purchaser makes a written offer
+to purchase Future Impact Fee Credits from Seller, Seller shall assign such
+Future Impact Fee Credits to Purchaser and Purchaser shall pay to Seller the
+amounts owed in this paragraph for such Future Impact Fee Credits (the closing
+of each such transaction shall be referred to herein as a “Future Impact Fee
+Closing”). At each Future Impact Fee Closing, Seller shall deliver the
+Assignment of Impact Fee Credits executed with respect to the applicable Future
+Impact Fee Credits to either Osceola County or Orange County to evidence
+Purchaser’s payment of the required mobility fees or transportation impact fees,
+as applicable. After the purchase of the Impact Fee Credits and any Future
+Impact Fee Credits, Seller shall deliver to Purchaser such other reasonable
+documentation as may be required by applicable governmental authorities as proof
+or evidence that the Impact Fee Credits or such Future Impact Fee Credits have
+been sold and transferred and assigned by Seller to Purchaser. Notwithstanding
+anything herein to the contrary, without needing the prior consent of Seller,
+Purchaser shall be entitled to (a) designate other Persons, including, without
+limitation, subsequent purchasers of portions of the Property, to receive Future
+Impact Fee Credits purchased in accordance with this Paragraph 5, or (b) assign
+to such Persons its rights and obligations to receive and purchase Future Impact
+Fee Credits in accordance with this Paragraph 5. The provisions of this
+Paragraph 5 shall survive the Closing and shall not be deemed merged into the
+Deed at Closing.
+6.    AS IS. Purchaser has or will inspect the Property and is familiar, or will
+become familiar with, the physical condition thereof. Except for any
+representations and warranties which are expressly made by the Seller in Section
+28(a) or elsewhere in this Agreement, and except for any covenants,
+representations or warranties made by Seller in any of the documents or
+instruments executed and/or delivered by Seller at Closing (collectively,
+“Seller’s Express Warranties”), Seller has not made and does not make any
+representations or warranties as to the physical condition, operational status,
+quality of construction of any improvements, expenses, operation, maintenance,
+profits, rents, loss or use to which the Property or any part thereof may be
+put, or any other matter or thing affecting or pertaining to the Property, and
+Purchaser expressly acknowledges and agrees at Closing to take the same “AS-IS”,
+“WHERE IS” and “WITH ALL FAULTS” as of the Closing Date. It is understood and
+agreed that all understandings and agreements heretofore had between the parties
+are merged into this Agreement and that neither party is relying upon any
+statements or representations not embodied in this Agreement made by the other
+and Purchaser hereby expressly acknowledges that it has not relied upon any
+information or other statements or representations with respect to the Property.
+Any such statements or other communications between Seller and Purchaser with
+respect to the Property which is the subject matter hereof other than Seller’s
+Express Warranties have been received by Purchaser solely for its own
+convenience, and Purchaser acknowledges that it has not and will not rely
+thereon. Purchaser acknowledges that Seller has afforded or will afford
+Purchaser the opportunity for a full and complete investigation, examination and
+inspection of the Property and all matters and items relating thereto or
+connected therewith. There are no express or implied warranties given to
+Purchaser with respect to the construction of any improvements comprising the
+Property, and Seller does hereby disclaim any and all warranties of
+merchantability and fitness from Seller to Purchaser with regard to the
+improvements included in this sale. The provisions of this section shall survive
+the Closing.
+7.    Closing.
+(a)    The closing (“Closing”) of the sale of the Property by Seller to
+Purchaser shall occur on or before June 25, 2020 (the “Closing Date”).
+Notwithstanding the foregoing, Seller’s obligation to close, including TBC’s
+obligation to guaranty the indemnification obligations of Seller pursuant to
+Section 28(c) hereof, is conditioned upon Seller obtaining the approval of the
+Board of Directors of Tupperware Brands Corporation as a condition precedent to
+Closing (the “Board Approval Condition”). If the Board Approval Condition is not
+satisfied by May 20, 2020, then Seller has the right to terminate this Agreement
+upon written notice to Purchaser delivered on or prior to May 20, 2020
+(whereupon Escrow Agent shall return to Purchaser the Deposit paid hereunder and
+this Agreement shall be terminated and the parties shall be relieved of any
+further obligations hereunder which do not expressly survive termination
+pursuant to the provisions of this Agreement), and in the event Seller fails to
+timely terminate this Agreement pursuant to this sentence, then the Board
+Approval Condition shall be deemed to have been waived by Seller. Seller or
+Purchaser, at their own option, may execute the closing documents before the
+Closing Date and forward same to the Escrow Agent by courier or other means,
+provided that all closing documents are received by the Escrow Agent on or
+before the Closing Date.
+(b)    At the Closing, the following shall occur:
+(i)    Purchaser, at its sole cost and expense, shall deliver or cause to be
+delivered at Closing the following:
+(1)    The balance of the Purchase Price as set forth in Section 2 hereof,
+subject to prorations, adjustments and credits as described in this Agreement;
+(2)    The Assignment and Assumption of Contracts (as hereinafter defined);
+(3)    The Assignment and Assumption of Land Use Approvals and Development
+Rights (as hereinafter defined);
+(4)    The Lease (as hereinafter defined);
+(5)    Memorandum of Lease;
+(6)    The Assignment and Assumption of Project Leases (as hereinafter defined);
+(7)    The Assignment of Impact Fee Credits (as hereinafter defined);
+(8)    The Assignment of Declarant’s Rights (as hereinafter defined);
+(9)    The Assignment of Developer’s Rights (as hereinafter defined);
+(10)    The Termination of Purchase Contracts (as hereinafter defined), if
+applicable;
+(11)    The Termination of DPA and DPA Memorandum (as hereinafter defined); and
+(12)    Execute and deliver or obtain for delivery any instruments required by
+this Agreement or reasonably necessary to close this transaction, including, by
+way of example but not limitation, corporate certificates and resolutions,
+closing statements, affidavits and delivery of instruments reasonably required
+by the Title Agent (as hereinafter defined).
+(ii)    Seller, at its sole cost and expense, shall execute and/or deliver or
+cause to be delivered to Purchaser the following:
+(1)    Special Warranty Deed fully executed and acknowledged by Seller,
+conveying to Purchaser the Property (the “Deed”), subject only to (a) real
+estate taxes for the year of Closing, which are not yet due and payable, and
+subsequent years; (b) zoning and use restrictions in effect or which may
+hereafter come into existence due to governmental action; (c) the Prohibited
+Uses (as defined in Section 20 below); and (d) the Permitted Exceptions;
+(2)    Affidavit attesting to the absence of any claims of lien or potential
+lienors known to Seller and further attesting that there have been no
+improvements or repairs to the Property which remain unpaid for ninety (90) days
+immediately preceding the date of Closing;
+(3)    Evidence reasonably satisfactory to Purchaser and the Title Agent that
+the person(s) executing the closing documents on behalf of Seller has full
+right, power and authority to do so;
+(4)    Execute and deliver or obtain for delivery any other instruments required
+by this Agreement or reasonably necessary to close this transaction, including,
+by way of example but not limitation, closing statements, releases, affidavits
+and delivery of instruments reasonably required by the Title Agent;
+(5)    The Assignment of Mitigation Credits (as hereinafter defiend);
+(6)    The Assignment of Impact Fee Credits (as hereinafter defined);
+(7)    The Assignment and Assumption of Contracts;
+(8)    The Assignment and Assumption of Land Use Approvals and Development
+Rights;
+(9)    The Bill of Sale;
+(10)    Memorandum of Lease;
+(11)    The Lease;
+(12)    Copies of the Plans and Warranties in Seller’s possession or under its
+control;
+(13)    The Assignment and Assumption of Project Leases;
+(14)    The Assignment of Declarant’s Rights;
+(15)    The Assignment of Developer’s Rights;
+(16)    The Termination of Purchase Contracts, if applicable;
+(17)    The Termination of DPA and DPA Memorandum;
+(18)    The Estoppel Certificates and SNDAs (as hereinafter defined), to the
+extent not previously delivered to Purchaser;
+(19)    The original executed Project Leases, together with all amendments and
+guaranties thereof; and
+(20)    A bring down certificate stating to Purchaser that the representations
+and warranties set forth in Section 28(a) of this Agreement are true and correct
+as of the Closing Date in all material respects.
+(c)    Upon completion of the Closing, (i) Seller shall deliver to Purchaser
+possession of the Property; and (ii) Escrow Agent shall promptly record the
+Deed, the mortgage and any other applicable closing documents upon confirmation
+of clearance of all funds, all in accordance with escrow closing instructions
+from the Seller and Purchaser.
+(d)    Seller (or any entity comprising Seller that owns fee simple title to any
+portion of the Project, as applicable) will deliver to Purchaser at Closing a
+completed and sworn Non-Foreign Affidavit in the form set forth on Exhibit “D”
+and a Title Affidavit in form and substance customary for the area and adequate
+for the Title Company to insure the gap and delete the standard printed
+exceptions (provided that to the extent there are any matters reflected on the
+Survey delivered by Seller to the Title Company, those matters will be listed as
+title exceptions on the Commitment). Seller (or any entity comprising Seller
+that owns fee simple title to any portion of the Project, as applicable) shall
+also take such actions, and obtain, execute and/or deliver such undertakings,
+documents, instruments, affidavits or agreements as may be necessary in order to
+satisfy all of the requirements set forth in Section B‑1 of the Commitment which
+are Seller’s responsibility.
+(e)    [RESERVED];
+(f)    At Closing, Seller and Purchaser shall enter into an Assignment and
+Assumption of Contracts, pursuant to which Seller shall assign all of its rights
+and obligations under the Third Party Contracts that Purchaser desires to assume
+at Closing, as of the Closing Date, and Purchaser shall assume, agree to perform
+and abide by the terms and conditions thereof, on and after the Closing Date
+(the “Assignment and Assumption of Contracts”). The form of the Assignment and
+Assumption of Contracts shall be agreed upon between Seller and Purchaser within
+thirty (30) days of the Effective Date. Any contracts not elected to be assumed
+by Purchaser hereunder shall be terminated by Seller prior to Closing, and
+Seller shall deliver evidence of such termination to Purchaser at Closing.
+(g)    At Closing, Seller, the Association, and Purchaser shall execute and
+record an Assignment and Assumption of Land Use Approvals and Development
+Rights, pursuant to which Seller and the Association, as applicable, shall
+assign all of their rights and obligations under the Land Use Approvals and
+Development Rights, as of the Closing Date, and Purchaser shall assume, agree to
+perform and abide by the terms and conditions thereof, on and after the Closing
+Date (the “Assignment and Assumption of Land Use Approvals and Development
+Rights”) The form of the Assignment and Assumption of Land Use Approvals and
+Development Rights shall be agreed upon between Seller, the Association and
+Purchaser within thirty (30) days of the Effective Date.
+(h)    At Closing, Seller and Purchaser shall execute and record an Assignment
+of Declarant’s Rights under the Other Declarations, which shall be in recordable
+form (and recorded at Closing) and properly witnessed and notarized (the
+“Assignment of Declarant’s Rights”), pursuant to which Seller will assign all of
+its rights and obligations as the Declarant (or similar term) under the Other
+Declarations and Purchaser shall assume all of such rights and obligations and
+shall acknowledge that it is the successor “Declarant” (or similar term) under
+such Other Declarations. The form of the Assignment of Declarant’s Rights shall
+be agreed upon between Seller and Purchaser within thirty (30) days of the
+Effective Date
+(i)    At Closing, Seller and Purchaser shall execute and record an Assignment
+of Developer’s Rights with respect to the Association, which shall be in
+recordable form and recorded at Closing (the “Assignment of Developer’s Rights”)
+and will provide for the assignment of Seller’s rights as the Developer under
+the Association’s organizational documents and the Declaration (which shall be
+amended to effectuate the assignment by Seller and the assumption of Purchaser
+as the “Successor Developer” thereunder), including, without limitation, an
+assignment of the Membership, and Purchaser shall assume all of Seller’s rights
+as the Developer with respect to the Association and will become the successor
+“Developer” under the Declaration. The form of the Assignment of Developer’s
+Rights shall be agreed upon between Seller and Purchaser within thirty (30) days
+of the Effective Date.
+(j)    At Closing, Tupperware Brands Corporation and Purchaser shall enter into
+the Lease, whereby Purchaser, as landlord, will lease back to Tupperware Brands
+Corporation, as tenant, the Tupperware HQ Complex (the “Lease”). At Closing,
+Seller and Purchaser shall record a Memorandum of the Lease in form and content
+to be agreed upon within thirty (30) days after the Effective Date (the
+“Memorandum of Lease”). The form of the Lease and Memorandum of Lease will be
+negotiated in good faith and agreed upon with thirty (30) days after the
+Effective Date; provided, however, in the event Purchaser and Seller have not
+agreed upon the form of the Lease within such thirty (30) day period, either
+party may terminate this Agreement upon which the Deposit shall be returned to
+Purchaser and neither Seller nor Purchaser shall have any further rights or
+obligations under this Agreement which do not expressly survive the termination
+of this Agreement. Purchaser and Seller hereby agree that the Lease will contain
+at a minimum the following required terms and conditions:
+(i)    The Lease shall have a term of ten (10) years;
+(ii)    The Lease shall provide for renewal options and/or options to purchase
+the real property and all improvements and fixtures thereon that are leased to
+Seller or constructed on the real property by Seller at the end of the ten (10)
+year term of the Lease. The terms, conditions, and rights for the end of terms
+options shall be mutually agreed upon during the Lease negotiation process;
+(iii)    The initial Base Rent, for the first three (3) lease years shall be
+Fifteen Dollars ($15.00) per annum per square foot of the gross leasable space
+in the buildings on the leased premises which aggregate amount is 216,356 gross
+leasable square footage. Commencing with the fourth lease year under the Lease,
+the Base Rent shall increase annually by the amount of two and one-half percent
+(2.5%) of the Base Rent for the previous lease year and continuing until the
+tenth lease year under the Lease;
+(iv)    The Lease shall be a triple net lease (NNN Lease) such that Seller, as
+the tenant, will be responsible for maintaining and repairing all exteriors,
+roofs, and interiors of all buildings constructed on the leased premises with
+Purchaser, as landlord, having no obligation to maintain or repair any portions
+of the buildings (whether exterior, interior or related to any mechanical
+systems, plumbing, electricity and water pipes), and Seller shall also be
+responsible for the payment of all real property taxes, sales tax on the rent,
+and the cost of the insurance premiums applicable to the leased premises;
+(v)    For twelve (12) months after the Closing Date, the leased premises shall
+include both the Tupperware HQ Complex parcel and a parcel of additional
+undeveloped land consisting of ± 37 acres (the “Additional Land”), which
+Additional Land is depicted on the HQ Site Plan and legally described on Exhibit
+“A-2” attached hereto as part of the Osceola County Land and which Additional
+Land shall not be subject to Base Rent. As of the Effective Date, TBC conducts a
+portion of its operations on the Additional Land. The Additional Land is
+contiguous to the approximately sixty (60) acre parcel of the lease premises
+constituting the Tupperware HQ Complex and is located between and to the south
+of the Tupperware HQ Complex and in between the Osceola County High School of
+the Arts. During such twelve (12) month period, Seller shall consolidate all of
+its current operations onto the Tupperware HQ Complex, and the Lease and the
+Memorandum of Lease shall be amended to release and remove the Additional Land
+at the end of such twelve (12) month period;
+(vi)    The Lease shall provide Seller, as tenant, with the right to construct
+and install additional structures, improvements, and fixtures on the Tupperware
+HQ Complex and to make alterations to the existing improvements located thereon,
+upon terms of approval to be agreed upon in the Lease, and otherwise subject to
+the terms and conditions set forth in the Lease;
+(vii)    The Lease will allow Seller, as tenant, upon terms of approval to be
+agreed upon in the Lease, to sublease portions of the improvements, structures,
+and fixtures to third party sublessees, and all rent under any subleases will be
+paid to and retained by Seller for its own account; and
+(viii)    The Lease will provide that the Base Rent will be reduced, upon a
+formula to be set forth in the Lease, in the event Purchaser, as landlord,
+exercises its rights to sever any of the Land leased to Seller pursuant to the
+exercise of its rights under Section 34 of this Agreement.
+(k)    At Closing, Seller and Purchaser shall enter into an Assignment and
+Assumption of Project Leases, pursuant to which Seller shall assign all of its
+rights and obligations under the Project Leases, together with all security
+deposits and prepaid rents, if any, being held by Seller in connection with the
+Project Leases, as of the Closing Date, and Purchaser shall assume, agree to
+perform and abide by the terms and conditions thereof, on and after the Closing
+Date (the “Assignment and Assumption of Project Leases”). The form of the
+Assignment and Assumption of Project Leases shall be agreed upon between Seller
+and Purchaser within thirty (30) days of the Effective Date.
+(l)    At Closing, Seller shall assign to Purchaser all of its rights in the
+Personalty, the Plans and Warranties and the Intangible Personal Property
+pursuant to the Bill of Sale (the “Bill of Sale”). The form of the Bill of Sale
+shall be agreed upon between Seller and Purchaser within thirty (30) days of the
+Effective Date.
+(m)    At Closing, Seller shall execute an assignment of Impact Fee Credits for
+any Impact Fee Credits purchased by Purchaser at Closing (the “Assignment of
+Impact Fee Credits”). The form of the Assignment of Impact Fee Credits shall be
+agreed upon between Seller and Purchaser within thirty (30) days of the
+Effective Date and will be used to assign any Future Impact Fee Credits sold to
+Purchaser after the Closing Date.
+(n)    At Closing, Seller shall execute an instrument that assigns to Purchaser
+all of its rights in the Mitigation Credits (the “Assignment of Mitigation
+Credits”). The form of the Assignment of Mitigation Credits shall be agreed upon
+between Seller and Purchaser within thirty (30) days of the Effective Date.
+(o)    At Closing, Seller and Purchaser shall terminate (and shall cause their
+respective affiliates to terminate) those Purchase Contracts that have not
+closed as of the Closing (the “Termination of Purchase Contracts”). At Closing,
+the earnest money deposits paid under the Purchase Contracts shall be credited
+to Purchaser and applied by Escrow Agent (as the escrow agent under the
+Trailside South Contract and the closing agent under this Agreement) to the
+amounts due from Purchaser at Closing under this Agreement. The form of the
+Termination of Purchase Contracts shall be agreed upon between Seller and
+Purchaser within thirty (30) days of the Effective Date.
+(p)    At Closing, Deerfield and Purchaser shall terminate that certain
+Development Pipeline Agreement entered into between Deerfield and Purchaser as
+of February 5, 2020 and that certain Memorandum of Development Pipeline
+Agreement recorded in Official Records Book 5671, Page 1686 of the Public
+Records of Osceola County, Florida (the “Termination of DPA and DPA Memorandum”)
+and record the same at Closing. The form of the Termination of DPA and DPA
+Memorandum shall be agreed upon between Seller and Purchaser within thirty (30)
+days of the Effective Date.
+(q)    At Closing, Seller shall (i) cause all officers and directors of the
+Association to resign in writing (and deliver copies of such resignations to
+Purchaser), and (ii) file with the Secretary of State of the State of Florida an
+amendment to the Articles of Incorporation of the Association reflecting the new
+address of the Association, the foregoing resignations and the appointment of
+replacement officers and directors (and Purchaser shall notify Seller of such
+address and the identity of the replacement officers and directors prior to
+Closing).
+(r)    At Closing, Seller and Purchaser shall execute such other documents as
+are expressly required to be delivered under the terms of this Agreement, or as
+may be required by the Title Company issuing the Commitment (including, without
+limitation, any documents or instruments required to satisfy or comply with the
+requirements set forth in Schedule B-Section 1 of the Commitment, and any
+reasonably requested affidavits the Title Company may require in order to insure
+the gap and delete the standard form “parties in possession” and “mechanic’s
+lien” title exceptions) or as may be reasonably necessary to carry out the terms
+and intent of this Agreement or which are reasonably required in order to
+effectuate the Closing.
+(s)    With respect to all documents and instruments described in this Agreement
+that must be negotiated and approved by the parties hereto after the Effective
+Date, the parties hereto hereby agree that they shall negotiate such documents
+in good faith and shall attempt to reach an acceptable agreement as to the form
+and substance of any such document or instrument diligently, and with the
+exercise of commercial reasonableness. In the event that, after good faith,
+diligent and commercially reasonable negotiation, the parties hereto are unable
+to agree upon the form and substance of any such document or instrument on or
+before the expiration of the Inspection Period or the applicable approval
+deadline, as applicable, the Purchaser shall have the option to either: (i)
+terminate this Agreement and receive a refund of the Deposit, and neither party
+shall have any further liability hereunder to the other party, except for those
+obligations which by their terms expressly survive the termination of this
+Agreement; or (ii) accept a version substantially similar to the Seller’s last
+proposed form of such document or instrument. As representatives of Seller
+control the Association prior to Closing, Seller shall cause the Association to
+perform all obligations required to be performed by the Association under this
+Agreement.
+8.    Evidence of Title and Title Insurance.
+(a)    On or before twenty (20) days after the Effective Date, Seller shall
+obtain and provide to Purchaser, at Seller’s expense not to exceed the minimum
+promulgated rate set forth by the Insurance Commissioner of the State of Florida
+a title insurance commitment for an ALTA Form B marketability policy issued by
+Fidelity National Title Insurance Company (the “Title Company”), with Greenberg
+Traurig, P.A., as the title agent (the “Title Agent”) in the full amount of the
+Purchase Price (the “Commitment”), together with legible copies of the deed, or
+other documents vesting title in the Seller, and any and all documents or
+instruments referred to in Schedule B, Sections 1 and/or 2 of the Commitment. At
+the Closing, Title Company shall deliver an endorsement to, or “mark-up” of, the
+Commitment deleting all Schedule B-I requirements, all standard exceptions
+except taxes for the current year not then due and payable and except for the
+standard printed survey exception for easements, encroachments and other matters
+a correct survey would show (provided, however, Purchaser acknowledges that the
+standard preprinted survey exception can be deleted upon delivery by Purchaser
+to Title Company of the Survey (as hereinafter defined) of the Property
+acceptable to the Title Company, and to the extent there are any matters
+reflected on the Survey, those matters will be listed as title exceptions on the
+marked Commitment and on the title policy issued after Closing), and the “gap”
+exceptions.
+(b)    If the Commitment or the Survey contains any exceptions or show any
+matters which render title unmarketable or adversely affect the value of the
+Property or Purchaser’s Intended Use of the Property as determined by Purchaser
+in its sole discretion, Purchaser shall deliver written notice to Seller
+specifying the exceptions that render title unmarketable or objectionable to
+Purchaser and stating the reasons for such objections (the “Title Objection
+Notice”). The Title Objection Notice shall be given no later than ten (10) days
+following Purchaser’s receipt of the later of the Commitment or the Survey, or
+Purchaser shall be deemed to have waived all objections to the Commitment, the
+Survey, and the title to the Property other than “Monetary Liens” (as defined
+below), which Monetary Liens must be paid, satisfied, discharged or otherwise
+removed from title to the Property by Seller whether objection is made thereto
+by Purchaser or not and notices of commencement affecting the Property (“Notices
+of Commencement”), which notices of commencement must be terminated by Seller
+whether objection is made thereby by Purchaser or not. Upon receipt of the Title
+Objection Notice, Seller shall have until five (5) days in which to either (i)
+notify Purchaser that it will cure any of such title objections and the steps it
+will take to do so; (ii) cure such objections; or (iii) notify Purchaser that it
+elects not to cure any of such objections, all in its sole discretion. Failure
+to respond to the Title Objection Notice within such period shall mean that
+Seller has elected not to cure such objections. Notwithstanding the foregoing,
+Seller shall (i) cure or cause any mortgages, judgments, special assessments for
+improvement liens or other encumbrances against the Property which secure and/or
+may be satisfied, discharged or be removed by the payment of a definite or
+ascertainable sum of money (“Monetary Liens”) against the Property and which
+shall be satisfied, discharged and/or otherwise removed from title to the
+Property and from the Commitment at or prior to Closing, and (ii) terminate any
+Notices of Commencement so that the same are removed from title to the Property
+and from the Commitment at or prior to Closing.
+(c)    If Seller either elects (or is deemed to have elected) not to remove or
+fails to remove any such objections of which it notifies Purchaser it intends to
+remove on or before one (1) day prior to the Closing Date, Purchaser may elect
+by giving written notice to Seller, which notice must be transmitted to Seller
+on or before the date that is five (5) days after such election (or deemed
+election) or failure to remove, either to (i) reject title as it then exists and
+terminate this Agreement and thereupon be entitled to a return of the Deposit,
+(ii) if the uncured objection is a Monetary Lien, proceed to Closing and require
+payment and satisfaction, discharge and/or removal from title of such
+unsatisfied Monetary Lien at Closing and from the proceeds thereof, or (iii)
+waive such objections and proceed with the Closing and accept the Property
+subject to such exceptions without reduction of the Purchase Price, and all such
+exceptions so waived or otherwise accepted by Purchaser shall hereinafter
+constitute “Permitted Exceptions”. In no event shall Seller be required to
+commence litigation, make any payments, or perform any other acts to remove
+title defects, except with respect to Monetary Liens. In the event that
+Purchaser elects option (i) above, upon return of the Deposit to Purchaser
+pursuant to said clause (i) above, this Agreement shall cease and terminate and
+the parties shall have no further rights, duties, or obligations under this
+Agreement, except for those rights, duties and obligations that specifically
+survive termination of this Agreement. If Purchaser fails to properly transmit
+any notice by the required date, Purchaser shall be deemed to have waived the
+objections to such exceptions (other than Monetary Liens and Notices of
+Commencement) and shall proceed to the Closing as provided by this Agreement and
+to take title subject to such items which shall be deemed Permitted Exceptions.
+Under no circumstances whatsoever shall a Monetary Lien or a Notice of
+Commencement ever become or be deemed to have become a Permitted Exception
+without Purchaser’s express written consent.
+(d)    If any subsequent endorsement to the Commitment or update to the Survey
+reveals any additional exceptions not permitted by this Agreement or otherwise
+approved by Purchaser, Seller shall have until the Closing Date in which to
+remove such additional exceptions, subject to the limitations set forth above.
+If Seller elects not to remove or is unable to remove such additional
+exceptions, Purchaser shall have the same rights and remedies as provided
+subsection ( c ) above.
+(e)    Seller and Purchaser each agree to provide reasonable affidavits and
+documentation to enable the Title Company to delete all Schedule B-I
+requirements for which such party is responsible for performing or satisfying,
+the “gap” exception, and the construction lien and parties in possession
+exceptions from the Commitment at Closing. Specifically, Purchaser and Seller
+agree to execute and deliver to the Title Agent at Closing the Title Company’s
+Indemnity & Undertaking Agreement (GAP) as is required due to the potential time
+lag in recording due to the COVID-19 Pandemic. Seller and Purchaser each shall
+be responsible for satisfying those Schedule B-I requirements applicable to each
+of them.
+9.    Prorations; Allocation of Closing Expenses.
+(a)    The cost of the Survey, the Commitment and the Owner’s Title Policy shall
+be paid by Seller. The documentary stamp taxes on the Deed shall be paid by
+Seller. Purchaser shall pay for the recording fees for the Deed, documentary
+stamp tax and intangible tax on any mortgage financing required by Purchaser,
+and the cost to record such instruments associated with such financing.
+Purchaser shall be responsible for the title premiums and costs for the mortgage
+title policy, any endorsements thereto, and any endorsements to the Owner’s
+Title Policy. If requested by the Purchaser, the Seller will require the Title
+Agent to issue a mortgage title commitment and policy to Purchaser’s lender at
+the minimum promulgated rate in Florida. Each party shall pay its respective
+attorneys’ fees. Seller shall pay the recording and filing costs of any Closing
+documents required by this Agreement but not specifically described in this
+Subparagraph 9(a) that are to be recorded in the Public Records of Osceola
+and/or Orange County, Florida.
+(b)    Real property taxes with respect to the Property and any personal
+property taxes related to the Personalty for the year of Closing and the annual
+installment applicable to the year of Closing on public improvement liens and
+special assessments for the year of Closing shall be prorated between the Seller
+and Purchaser as of the Closing Date, except that special assessments for
+improvements completed prior to Closing shall be paid by Seller. All ad valorem
+taxes for prior years shall be paid by Seller. In the event the current special
+assessment, ad valorem tax assessment, and millage are not available on the
+Closing Date, real property taxes and special assessments for the year of
+Closing shall be based on the previous year’s assessments and millage. Promptly
+after receipt of the actual tax bill for the year of Closing, the proration of
+taxes shall be recomputed upon the request by either party hereto. Any
+discrepancy resulting from such recomputation and any other errors or omissions
+in computing other prorations at Closing shall be promptly corrected and paid
+upon notice and demand by either party. The provisions of this Subparagraph 9(b)
+shall survive the Closing and shall not be deemed merged into the Deed at
+Closing.
+(c)    The Association has levied the total combined amount of $265,055.00 as an
+annual assessment that includes both regular and special assessments for all of
+Osceola Corporate Center for the year 2020. The Seller as a matter of custom has
+been paying all the vendors and accounts payable of the Association. As such the
+amount of money paid by the Seller on behalf of the Association will increase
+between the Effective Date and the Closing Date along with the amount of
+receivables collected by the Association for assessments. As of the Effective
+Date, the Association has collected $126,895.17 of the total amount of
+receivables. The total of all expenses paid and assessments collected will be
+updated at Closing. All assessments and operating costs payable to the
+Association after Closing and all future general and special assessments levied
+by the Association after Closing shall be the sole responsibility of Purchaser
+to collect. Pursuant to Article V, Section 13 of the Declaration, Seller is
+obligated to pay the Association, as incurred, the portion of the operating
+deficits of the Association attributable to the Common Areas (exclusive of
+reserves for replacement of improvements and extraordinary losses or expenses)
+(the “Association Deficits”). Estimated Association Deficits applicable to the
+year of Closing shall be prorated between the Seller and Purchaser as of the
+Closing Date. Promptly after the determination of the actual Association
+Deficits for the year of Closing, the proration of the Association Deficits
+shall be recomputed upon the request by either party hereto. Any discrepancy
+resulting from such recomputation and any other errors or omissions in computing
+other prorations at Closing shall be promptly corrected and paid upon notice and
+demand by either party. Additionally, Seller hereby discloses to Purchaser that
+Seller is obligated to Osceola County, Florida to construct intersection
+improvements, including a four-way stop, at the intersection of Centerview Blvd.
+and Greenwald Way. Osceola County, Florida issued an approval of a Site
+Development Plan on March 23, 2020 identified as SDP # 20-0003 (the “SDP”) (a
+copy of which is included in the Property Information), which authorizes the
+work for such intersection improvements. The Association is responsible for the
+costs of construction and for completion of the work under the SDP. To that
+extent, the Association has established a reserve in the amount of Fifty-five
+Thousand Dollars ($55,000.00) in the Association’s bank account, which funds
+will be transferred to Purchaser’s desired replacement bank account for the
+Association (if the Purchaser so instructs Seller that it intends to change the
+bank accounts of the Association). Purchaser shall then be responsible for
+causing the Association to undertake and complete of all of the intersection
+improvements required by the County as set forth in the SDP. In the event that
+such improvements exceed $55,000.00 to perform and Purchaser is required to
+contribute any portion of such excess, then Seller shall reimburse Purchaser for
+such contribution made upon request. The provisions of this Subparagraph 9(c)
+shall survive the Closing and shall not be deemed merged into the Deed at
+Closing.
+(d)    Except as herein expressly provided to the contrary, Seller shall be
+responsible for all expenses of the Property, and shall be entitled to all
+income from the Property, attributable to the period prior to the Closing Date,
+and Purchaser shall be responsible for all expenses of the Property, and shall
+be entitled to all income from the Property, attributable to the period on and
+after the Closing Date. Without limiting the generality of the foregoing, the
+following items shall be adjusted as of the Closing Date: (i) rent received by
+Seller under the Project Leases to the extent they pertain to any period from
+and after the Closing Date; (ii) all other gross receipts from the Property
+received by Seller, to the extent they pertain to any period from and after the
+Closing Date; (iii) charges under Third Party Contracts that Purchaser desires
+to assume at Closing; and (iv) other operating expenses of the Property not
+covered by the foregoing (i) through (iii).
+(e)    Water and utility charges and sanitary sewer taxes, if any, shall not be
+prorated at Closing. Purchaser shall be responsible for establishing new
+accounts for such services in Purchaser’s name as of Closing (except for those
+utilities serving the Tupperware HQ Complex and the Additional Land, which shall
+be placed in the name of TBC). Seller shall have sole responsibility for all
+such utility charges through the period prior to the Closing Date, which
+obligation shall survive the Closing.
+(f)    At Closing, Seller shall, at Purchaser’s option, either deliver to
+Purchaser any security deposits provided under the Project Leases or credit to
+the account of Purchaser at Closing the amount of such security deposits,
+provided that Seller shall not apply security deposits against delinquent rents
+or otherwise.
+(g)    All prorations and adjustments to be made under this Agreement shall be
+made against the amount otherwise payable by Purchaser to Seller at Closing. In
+addition, with respect to amounts received by Purchaser after the Closing that
+pertain to periods prior to the Closing, the following provisions shall apply:
+(i) Purchaser shall use good faith efforts to collect any monthly payments of
+rent or other charges that are outstanding as of the Closing Date, provided that
+Purchaser shall have no duty to file suit, engage a collection agency or perform
+any other extraordinary collection effort to collect same; (ii) Seller shall not
+attempt to collect any delinquent rent or other charges owed Seller or institute
+any lawsuit or collection procedures or evict any tenant for failure to pay rent
+to Seller; (iii) at Closing, Seller shall deliver to Purchaser a list
+identifying any such delinquent rent or other charges; and (iv) if any tenant in
+the Project whose account is delinquent as of the Closing makes a payment of
+rent or other charges to Purchaser after the Closing, the payment shall first be
+applied by Purchaser to rent or other charges due from that tenant from and
+after the Closing Date and the excess, if any, shall be paid to Seller.
+(h)    Any revenue or expense amount related to the Property that is not
+described herein and cannot be ascertained with certainty as of the Closing Date
+shall be prorated on the basis of the parties’ reasonable estimates of such
+amount and shall be the subject of a final proration thirty (30) days after
+Closing, or as soon thereafter as the precise amounts can be ascertained, but in
+no event later than 180 days after Closing.
+10.    Conditions Precedent.
+(a)    The following conditions precedent (the "Conditions Precedent") must be
+satisfied prior to Closing (or such other deadline as set forth below):
+(i)    Except those attributable to or consented to by Purchaser, no material
+change to the title to the Property shall have occurred since the Effective
+Date;
+(ii)    Seller has complied with and otherwise performed, in all material
+respects, each of its obligations set forth in this Agreement, and each of the
+Seller’s representations and warranties set out in this Agreement remains true
+in all material respects;
+(iii)    Seller shall deliver to Purchaser at least three (3) business days
+prior to the Closing Date (provided, however, Purchaser may agree to extend this
+deadline to the Closing Date) (i) original, “clean” and executed tenant estoppel
+certificates from all tenants under the Project Leases and any guarantors of the
+Project Leases in form acceptable to Purchaser and Purchaser’s lender (the
+“Estoppel Certificates”); and (ii) original executed subordination,
+non-disturbance and attornment agreements from all tenants under the Project
+Leases in a form acceptable to Purchaser and Purchaser’s lender (the “SNDAs”).
+Purchaser agrees to provide Seller with Purchaser’s lender’s form of
+subordination, non-disturbance and attornment agreement as soon as it is
+available;
+(iv)    For all Third Party Contracts for which there are written contracts a as
+opposed to service arrangements, Seller obtains all third party consents
+necessary to assign to Purchaser the Third Party Contracts that Purchaser
+desires to assume at Closing as required under the terms of such Third Party
+Contracts and delivers evidence of the same to Purchaser; and
+(v)    Provided Seller has the right under any respective Third Party Contract,
+Seller terminates all Third Party Contracts that Purchaser does not elect to
+assume and delivers evidence of such termination to Purchaser.
+(b)    In the event any of the Conditions Precedent are not satisfied on or
+prior to the Closing Date (or such other deadline as set forth below), the
+Purchaser shall have the option, in its sole discretion, of notifying Seller of
+such in writing to either: (i) waive that Condition Precedent and proceed with
+Closing; or (ii) terminate this Agreement, whereupon the Deposit will be
+returned to the Purchaser and the Purchaser, Seller and Escrow Agent will be
+released of all further obligations under this Agreement except for those
+matters set forth herein that survive the termination of this Agreement.
+11.    Default; Remedies; Indemnification. In the event of a breach by Purchaser
+of its obligations under this Agreement, Seller may terminate this Agreement by
+written notice to Purchaser specifying the breach, and Purchaser shall have ten
+(10) business days opportunity to cure the same, unless the time period from the
+written notice of default from Seller to Purchaser is less than ten (10)
+business days from the Closing Date, in which case, Purchaser shall have until
+the Closing Date to cure such default; provided, however, that no such cure
+period shall apply for a breach of the obligation to close by the Closing Date.
+In the event of such termination, the Deposit made by Purchaser shall be
+retained by Seller as agreed and liquidated damages and as Seller’s sole and
+exclusive remedy for withholding the Property from the market and for expenses
+incurred and the parties shall thereupon be relieved of any further liability
+hereunder. In the event of a breach by Seller of its obligations under this
+Agreement, Purchaser shall have the right, at its option, to exercise one of the
+following remedies by written notice to Seller specifying the breach, and Seller
+shall have ten (10) business days opportunity to cure the same, unless the time
+period from the written notice of default from Purchaser to Seller is less than
+ten (10) business days from the Closing Date, in which case, Seller shall have
+until the Closing Date to cure such default (provided, however, that no such
+cure period shall apply for a breach of the obligation to close by the Closing
+Date): (i) terminate this Agreement by written notice transmitted to the Seller
+and the Escrow Agent, in which event Purchaser shall be entitled to immediately
+receive the return of the Deposit paid hereunder from Escrow Agent, Seller shall
+reimburse Purchaser for all of its actual and documented expenses incurred in
+investigating the Property, evaluating the transactions described herein and
+negotiating this Agreement and related documents, including, without limitation,
+attorneys’ and third party consultants’ fees and costs (collectively, the “Due
+Diligence Expenses”), and upon receipt by Purchaser of the full amount of the
+Deposit and the Due Diligence Expenses, the parties shall have no further
+liability hereunder, or (ii) in the alternative, Purchaser shall have the right
+to seek specific performance; provided, however, that in the event specific
+performance is not available to Purchaser due to any action of Seller, then
+Seller shall reimburse Purchaser for its Due Diligence Expenses and Seller shall
+have the right to bring an action against Seller for any other damages suffered
+by Purchaser as a result of Seller’s default under this Agreement.
+12.    Deed Restrictions.
+The Deed to be given by Seller shall contain a restriction, running with the
+land, providing that the Property shall not be used for the Prohibited Uses set
+forth in Paragraph 20 of this Agreement. Purchaser hereby agrees that all leases
+of any portion of the square footage within any of the buildings constructed on
+the Property shall include a provision restricting the use of all leased
+premises by Purchaser’s tenants from the Prohibited Uses and any other
+restrictions set forth in Paragraph 20 of this Agreement, and also including a
+provision requiring that the use of all leased premises are used for uses
+permitted in the Seller’s OCC PD or the Tupperware Heights PD, as applicable.
+13.    [RESERVED]
+14.    Survey. Seller shall deliver to Purchaser, any and all boundary surveys,
+tree surveys and topographical surveys of the Property which Seller has in its
+possession, if any, within five (5) business days after the Effective Date
+hereof. Seller shall, at its sole cost and expense and within thirty (30) days
+of the Effective Date, obtain and deliver to Purchaser and Title Company a
+boundary survey of the Property prepared by a land surveyor duly registered and
+licensed in the State of Florida, that shall meet or exceed the minimum
+technical standards for surveyors as set forth in Chapter 61G17-6 of the Florida
+Administrative Code, which survey shall be certified to Purchaser, Purchaser’s
+counsel, Purchaser’s lender, Seller, Seller’s counsel, Title Company, Title
+Agent, and any other persons or entities requested by Purchaser (the “Survey”).
+Given the nature of the transaction contemplated by this Agreement, the amount
+of acreage included within the Property, and the fact that a portion of the
+Osceola County Land consists of the following unplatted real property located in
+Osceola County, Florida (i) the Tupperware Brands Corporation’s corporate
+headquarters complex is separately described by the metes and bounds legal
+description on Exhibit “A-1” attached hereto and made a part hereof (the
+“Tupperware HQ Complex”); and (ii) the Additional Land, the Survey may be
+separated into more than one survey for different areas of the Property and may
+be delivered to Seller and Title Agent at different times with the platted real
+property located within the Orange County Land and the replatted areas of real
+property located within the Osceola County Land expected to be completed in less
+than the deadline of forty-five (45) days after the Effective Date. All such
+surveys delivered in compliance with the technical requirement set forth in this
+Section 14 shall collectively constitute the Survey for the purposes of this
+Agreement. The Survey shall make reference to the Commitment, shall depict (if
+possible) and identify by name and recording information all exceptions
+contained in Schedule B-2 of the Commitment. The existence of any encroachments,
+overlaps, rights-of-way or easements on the boundary Survey affecting the
+Property shall constitute an unpermitted title exception under Paragraph 8
+above, provided written notice to that effect is transmitted by Purchaser to
+Seller in accordance with the timeframes therein for a title objection letter
+for matters of survey and in which case all of the provisions of Section 8
+relating to a Title Objection Notice shall apply; provided, however, if such
+timeframes extend past the Closing Date, the Purchaser shall have until the
+Closing Date to exercise any of its rights with respect to title and survey
+objection matters as set forth in Section 8 ( c) of this Agreement.
+The provisions of this Paragraph 14 shall survive the Closing and shall not be
+deemed merged into the Deed at Closing.
+15.    Utilities; Infrastructure and Construction; Purchaser’s Expenses. Utility
+lines and facilities are in place to serve the Intended Use (inclusive of the
+Tupperware HQ Complex and the Additional Land) for sewer, water, electrical,
+telephone, reuse water, and natural gas except as set forth below:
+(a)    Natural gas is not available to all of the Property and Purchaser shall
+discuss the locations of natural gas lines with Seller’s civil engineer during
+the Inspection Period.
+(b)    There was a permit for construction and installation of a potable water
+line along the easterly right-of-way of Orange Blossom Trail to Tract 1 of the
+Tupperware Heights Land Use Plan from a stubout northward in the vicinity of
+Gatorland.
+(c)    Seller has discussed the possibility with its civil engineer of
+undertaking to facilitate an interlocal agreement between Orange County and
+Osceola County where Orange County would agree to extend the potable water line
+south from its existing stubout in the vicinity of Gatorland along the easterly
+right-of-way of Orange Blossom Trail and for Osceola County to connect to such
+potable water line and construct and install the pipeline connection beneath the
+eastern edge of Mary Louis Lane and run it southward into the Project to provide
+potable water service to the Project. Seller agrees to share its information
+with respect to the potential of an interlocal agreement being entered into,
+without any representation, duty, or warranty of any kind, and such obligation
+shall survive Closing.
+16.    [RESERVED]
+17.    [RESERVED]
+18.    [RESERVED]
+19.    Testing of Soil; Hazardous Material; Endangered Species.
+(a)    Purchaser shall have the right, but not the obligation, during the
+Inspection Period, at Purchaser’s own cost and expense, to (i) cause soil and
+ground water tests to be made on the Property by an engineer or engineering
+laboratory qualified to make soil borings and soil and ground water tests,
+including, but not limited to, a Phase I or Phase II environmental site
+assessment; and (ii) to cause an inspection of the Property by Purchaser’s
+consultants to confirm that no endangered species exist on the Property.
+Purchaser may procure from such engineer or engineering laboratory or consultant
+a report, signed and certified by or on behalf of said engineer or engineering
+laboratory or consultant, showing the condition of the foundation soil and
+ground water on the Property, reciting the number, approximate locations and
+depths of the test borings on which said report is based, and stating whether
+endangered species exist on the Property. A copy of the report will be provided
+to Seller. If the report shows the foundation soil of the Property is not
+satisfactory, under normal construction practices, for the construction of
+improvements for the Intended Use, or if the report indicates that the soils
+contain hazardous substances (as defined by 42 U.S.C. Section 9601(4))
+(hereinafter, “Hazardous Substances”), or if endangered species exist on the
+Property (each referred to herein as an “Environmental Condition”), the
+Purchaser shall have the right on or before the expiration of the Inspection
+Period in which to elect to extend the Inspection Period for an additional
+forty-five (45) days to allow Purchaser additional time to assess the risks and
+develop a plan of action with respect to any Environmental Condition (the
+“Extended Inspection Period”). If Purchaser is entitled to and so elects such an
+Extended Inspection Period, it shall deliver notice to Seller stating that,
+because of the Environmental Condition, the Purchaser elects to so extend the
+Inspection Period, and the Closing Date shall also be extended for an additional
+forty-five (45) days. Seller, at its option, shall then have the earlier of (i)
+the expiration of the Extended Inspection Period; or (ii) the Closing Date to
+correct such items, such time period to commence on the delivery of the report
+to Seller. If Seller is able to correct such items to Purchaser’s reasonable
+satisfaction, the Closing shall occur as herein provided. Seller, however, may
+elect not to cure such items, in its sole discretion, in which event Purchaser
+may elect to terminate this Agreement upon written notice to Seller no later
+than ten (10) days after receipt of Seller’s notice, and, thereafter, all rights
+and obligations of the Seller and the Purchaser under this Agreement shall
+thereupon be terminated and neither of them shall have any further rights or
+obligations to the other on account of any of the provisions of this Agreement,
+except: (y) Seller shall promptly cause the Deposit to be returned to Purchaser
+upon Purchaser’s request therefore; and (z) Purchaser shall restore the Property
+pursuant to Paragraph 19(b) hereof and indemnify Seller pursuant to Paragraph
+19(c) hereof if and to the extent thereby required. If Purchaser does not
+deliver notice of its intention to terminate this Agreement as set forth
+hereinabove, Purchaser shall be deemed to have accepted the Property
+notwithstanding the existence of any of the above described items and to have
+waived its rights to terminate the Agreement pursuant to the foregoing
+provisions of this Paragraph 19. Purchaser agrees to comply with the terms of
+the Development Permits, any Approvals related to the Property, and all
+applicable laws in respect to any endangered or listed species and in respect of
+any Hazardous Substances, including, without limitation, petroleum and diesel
+fuel storage for any gas station operated on the Property as part of the
+Intended Use by the convenience store/fuel dispensary facility operated on the
+Property.
+(b)    After completion of such inspections and tests and if Purchaser elects
+not to purchase the Property and proceed to Closing, Purchaser, at its sole
+cost, shall restore the Property disturbed by such inspections and tests to a
+condition substantially similar to the condition of the Property as of the
+Effective Date. Boring holes shall be plugged from the bottom of the boring to
+ground surface with a cemetacious mixture of sand, cement and Bentonite or
+comparable materials reasonably acceptable to Seller.
+(c)    Purchaser and its employees and agents shall have the right to enter upon
+the Property for purposes of making the above-described tests and inspections
+upon reasonable notice to Seller. Purchaser shall indemnify, hold harmless and
+defend Seller from and against any liability, loss or damage, including without
+limitation attorneys’ fees, and court costs proximately caused by such entry by
+Purchaser and its employees and agents onto the Property, including, but not
+limited to, construction liens or claims that may be filed or asserted against
+the Seller, the Seller’s agents and employees, the Property or other property of
+Seller by contractors, subcontractors, materialmen, or providers of professional
+services performing such work for Purchaser, except for such liability, loss or
+damage caused solely by Seller. Any liability, loss or damage to Seller
+resulting from the discovery of any pre-existing condition on, in or under the
+Property shall be excluded from any such indemnity obligations.
+Seller shall make available to Purchaser as part of the Property Information,
+copies of all prior reports, studies and tests which Seller caused to be made or
+which Seller has within its possession or control. Seller does not warrant the
+accuracy of such tests, reports and studies.
+(d)    As a condition precedent to Purchaser’s right to enter upon and inspect
+the Property as set forth in this Paragraph 19, Purchaser or Purchaser’s
+consultants shall obtain and maintain, at its sole cost and expense (and/or, as
+appropriate, cause its contractors to keep and maintain), comprehensive
+commercial general liability insurance, including contractual liability, in the
+minimum amount of One Million and 00/100 Dollars ($1,000,000) per occurrence and
+in the aggregate. Such insurance shall provide coverage for physical damage,
+property damage, environmental impairment, personal injury and contractual
+liability claims which may arise out of the activities of Purchaser, its
+employees, agents, invitees and licensees, and shall name Seller, and any other
+firms or corporations reasonably designated by Seller as additional insureds and
+any other insurance reasonably required by Seller, to protect Seller against any
+losses, claims, damages or liability in connection with Purchaser’s inspections
+of the Property. In addition to the foregoing insurance coverage, Purchaser
+shall use commercially reasonable efforts to require that its third party agents
+who are performing work on the Property obtain environmental impairment coverage
+in favor of Seller and Seller’s designated affiliates.
+The above-referenced insurance policies shall be issued by insurance companies
+licensed in the State of Florida and with an A.M. Best General Policyholder
+Rating of at least A-X. All such policies shall provide that they cannot be
+canceled, modified, reduced or non-renewed except after the insurer gives Seller
+ten (10) days prior written notice of cancellation, modification, reduction or
+non-renewal, if obtaining such notice provision is commercially reasonable.
+Prior to entering upon the Property, Purchaser shall provide Seller with
+evidence that it has obtained all such required insurance.
+(e)    Purchaser hereby acknowledges that Seller has disclosed to it that there
+are the following environmental conditions relating to the Property (the
+“Environmental Conditions”) and information relating to them are included in the
+Property Information:
+(i)    there have been areas of the Property on which a former golf course was
+constructed on Replat 33 and the Additional Land that contain levels of arsenic
+in the soil, portions have been remediated; and
+(ii)    there have been two (2) oil spills on the Additional Land near the
+information technology building that occurred in 2017 and 2018 (the “Oil
+Spills”). Purchaser acknowledges that Seller is in the process of remediating
+the Oil Spills and that such remediation cannot be completed by Closing. As a
+result, Seller agrees, at Seller’s expense, to continue such remediation after
+Closing until completion and the issuance of a “no further action” letter or
+other evidence from applicable governmental authorities reasonably required by
+Purchaser confirming that the Oil Spills have been completely remediated in
+accordance with applicable law (collectively, the “Oil Spill Remediation”).
+Seller hereby agrees to provide Purchaser with an estimated cost of completing
+the Oil Spill Remediation work within ten (10) business days after the Effective
+Date.
+(f)    The provisions of this Paragraph 19 shall survive the Closing and shall
+not be deemed merged into the Deed at Closing.
+20.    Use Restrictions.
+(a)    Purchaser hereby acknowledges that there are use restrictions recorded
+against the Property in the Ninth Supplement in favor of the owner of Lot 1 of
+Replat 30, as well as a list of Permitted Uses (as defined in the Ninth
+Supplement) to which the Property is subject. Pursuant to such use restrictions,
+Purchaser shall not develop or allow to be developed medical uses on the
+Property until September 17, 2022, except as set forth below. The Ninth
+Supplement further provides that the use restrictions; (i) exclude chiropractic
+practices, dental practices, orthodontic practices, medical spas, optometry
+practices, and pharmacies that do not contain walk-in clinics; and (ii) exclude
+any other medical uses agreed to by the owner of Lot 1 of Replat 30 upon request
+of Purchaser from time to time. In addition, the owner of Lot 1 of Replat 30 has
+the exclusive right to own, develop and use property within the Planned
+Development for Osceola Corporate Center and the Tupperware Heights Planned
+Development in Orange County, Florida, for the operation of an emergency
+department or urgent care facility, except for existing uses or uses permitted
+for such purposes that are under contract as of September 17, 2017.
+(b)    Purchaser hereby acknowledges that the Property is subject to the Use
+Restrictions set forth in that certain Twelfth Supplemental Declaration to the
+Master Declaration of Covenants, Conditions and Restrictions for Osceola
+Corporate Center recorded October 2, 2019, in Official Records Book 5606, Page
+1388, of the public records of Osceola County, Florida (the “Twelfth
+Supplement”).
+(c)    There is an additional use restriction in the Twelfth Supplement
+applicable to the Property that provides that no structure on any part of the
+Property may install, have or allow to remain any Window Border Lighting.  For
+the purposes hereof, “Window Border Lighting” shall mean any and all window
+border lighting, such as and including without limitation, LED display strips,
+neon, rope lights, tape lights or strip lights.
+(d)    In purchasing the Property from Seller, Purchaser agrees that no portion
+of the Property shall be used for a purpose prohibited by the Declaration or
+for: (a) a retail warehouse home improvement center, lumber yard, building
+material supply center, home improvement service center in excess of 25,000
+square feet of air conditioned retail space, or (b) any retail store or center
+similar to that of Lowe’s, Home Depot, Builder’s Square, 84 Lumber, and/or
+Wickes, which purposes Seller represents and warrants Seller is expressly
+prohibited from permitting pursuant to that certain First Supplemental
+Declaration to Master Declaration of Covenants, Conditions and Restrictions for
+Osceola Corporate Center recorded in Official Records Book 2033, Page 1829, of
+the Public Records of Osceola County, Florida, a copy of which shall be
+available on the data site as part of the Property Information.
+(e)    Prior to September 27, 2022, Purchaser shall be prohibited from
+developing or using the Property as an assisted living facility.
+(f)    Prior to June 28, 2020, Purchaser shall be prohibited from developing or
+using the Property for a self-storage facility.
+(g)    The provisions of this Paragraph 20 shall survive the Closing and shall
+not be deemed merged into the Deed at Closing.
+21.    [RESERVED]Governmental Approvals. The Osceola County Land is currently
+zoned PD under the Osceola County Zoning Code pursuant to a Planned Development
+(defined, as the same may be subsequently amended, as the “Seller’s OCC PD”
+herein) and the Orange County Land is currently zoned PD under the Orange County
+Zoning Code (defined, as the same may be subsequently amended, as the
+“Tupperware Heights PD” herein) , the terms and conditions for both of which,
+and all amendments, restatements, revisions, and modifications thereto,
+including, without limitation, any amendments, are set forth on the datasite
+described on Exhibit “B” (the “Planned Development Zoning”) and is subject to
+that certain Overall Comprehensive Development Plan (MACRO) prepared by Ivey,
+Harris & Walls, Inc. under Project #255.02, dated January 28, 1997 (the “Macro
+CDP”), as well as certain other permits and agreements set forth in the Property
+Information. The Seller’s OCC PD, the Tupperware Heights PD, Macro CDP, the
+SFWMD Master Conceptual Permit, and all amendments and modifications thereto
+identified in the Property Information set forth in Exhibit “C” attached hereto,
+and other permits and approvals set forth in the Property Information, as the
+same may be amended from time to time, are collectively referred to as the
+“Governmental Approvals”. Purchaser hereby covenants, represents and warrants
+that from and after the Closing, Purchaser, and its successors or assigns, shall
+at all times comply with all of the Governmental Approvals if and to the extent
+applicable to the Property and the Project, so as to maintain the same in good
+standing and in full force and effect.
+22.    Real Estate Commission. Purchaser and Seller represent and warrant to
+each other that they have not employed any brokers or real estate agencies in
+the creation of or the negotiations relating to this Agreement and Purchaser and
+Seller shall defend, indemnify and hold harmless each other against any loss,
+liability, costs, claim, demand, damages, action, cause of action or suit
+arising out of or by reason of any other real estate agency, agent, or broker,
+claiming a commission or fee through such party. Purchaser expressly represents
+and warrants to Seller that Seller will not be liable to pay Purchaser or any
+other Person a development fee, finder’s fee or other similar fee in connection
+with the acquisition of the Property. The Provisions of this Paragraph 23 shall
+survive the Closing and shall not be deemed merged into the Deed at Closing. The
+provisions of this Paragraph 23 shall survive the Closing and shall not be
+deemed merged into the Deed at Closing.
+23.    Assignment. The Purchaser may not assign this Agreement without the prior
+written consent of Seller, except that Purchaser may assign this Agreement to an
+Affiliate without the prior written consent of Seller. An “Affiliate” shall mean
+(i) any Person which owns at least fifty percent (50%) of the shares, limited
+partnership interests or membership interests, as applicable, of the Purchaser
+or (ii) any Person that, directly or indirectly, controls, is controlled by, or
+is under common control with Purchaser. In the event Purchaser assigns this
+Agreement (and such assignment is permitted by Seller, if such permission is
+required pursuant to this paragraph), Purchaser and any assignee of Purchaser
+shall execute an assignment of this Agreement at Closing, pursuant to which the
+assignee of Purchaser expressly agrees to be bound by all of the obligations of
+Purchaser under this Agreement which survive Closing; provided, however,
+Purchaser shall not be released from any of Purchaser’s obligations under this
+Agreement until the Closing of the transaction contemplated by this Agreement
+has been consummated.
+25.    [RESERVED]
+24.    Notices.
+(a)    All notices provided for in this Agreement shall be in writing and
+delivered personally (including delivery by courier) or by registered or
+certified mail, return receipt requested, postage prepaid, or via facsimile or
+email to the parties, or by nationally recognized overnight delivery service at
+the addresses and facsimile numbers or email addresses, as applicable, set forth
+below, with a copy forwarded to their respective attorneys, at the addresses and
+facsimile numbers or email addresses, as applicable set forth below, or at such
+other addresses as the parties shall designate to each other in writing:
+Seller:    Deerfield Land Corporation
+14901 South Orange Blossom Trail
+Orlando, FL 32837
+Telephone: (407) 826-4514
+Facsimile: (407) 826-4505
+Attention: Mr. Thomas M. Roehlk, Vice President
+E-mail: tomroehlk@tupperware.com
+And:                Deerfield Land Corporation
+14901 South Orange Blossom Trail
+Orlando, FL 32837
+Telephone: (407) 826-4514
+Facsimile: (407) 826-4505
+Attention: Mr. Thomas M. Roehlk, Vice President
+E-mail: tomroehlk@tupperware.com
+With a copy to:        Greenberg Traurig, P.A.
+450 South Orange Avenue, Suite 650
+Orlando, FL 32801
+Telephone: (407) 420-1000
+Facsimile: (407) 420-5909
+Attention: Alan C. Sheppard, Jr., Esq.
+E-mail: shepparda@gtlaw.com
+Purchaser:            O’Connor Management LLC
+125 Worth Avenue, Suite 316
+Palm Beach, FL 33480
+Telephone: (561) 694-1146
+Attention: John F. O’Connor and Peter Bergner
+Email: John.Oconnor@oconnorcp.com and
+pbergner@oconnorcp.com
+With a copy to:        Jones Foster P.A.
+350 Royal Palm Way, Suite 406
+Palm Beach, FL 33480
+Telephone: (561.659.3000)
+Facsimile: (561.650.5300)
+Attention: Larry B. Alexander, Jr., Esq.
+Email: balexander@jonesfoster.com
+(b)    Any notice, request, demand, instruction or other communication to be
+given to either party hereunder, except where required to be delivered at the
+Closing, shall be in writing and delivered personally (including delivery by
+courier) or by registered or certified mail, return receipt requested, postage
+prepaid, or via facsimile or email to the parties, or by nationally recognized
+overnight delivery service at the addresses and facsimile numbers or email
+addresses, as applicable, set forth herein, with a copy forwarded to their
+respective attorneys, at the addresses and facsimile numbers or email addresses,
+as applicable set forth herein, or at such other addresses as the parties shall
+designate to each other in writing. Any notice delivered as aforesaid shall be
+deemed to have been effectively transmitted immediately upon mailing, delivery
+to an appropriate carrier, or receipt or refusal of delivery of said notice,
+whichever is earliest. The inability to deliver because of change in address of
+which no notice is given shall be deemed to be a receipt of the notice, demand
+and request. The party claiming delivery of notice via telecopier or facsimile
+shall have the burden of proving notice was in fact sent, which burden can be
+carried without further evidence if confirmed by the transmitting telecopier or
+facsimile machine. Any communication sent by facsimile shall promptly be
+followed by a copy delivered by one of the other approved methods. Purchaser’s
+counsel and Seller’s counsel are expressly permitted to execute and deliver
+notices and receive notices for the parties they represent. Receipt shall be
+deemed to have occurred if delivered to an authorized agent or any employee of
+the addressee or of the addressee’s company. A time period in which a response
+to any notice, demand or request must be given pursuant to the terms of the
+Agreement, shall commence to run from the date of receipt. Either party may
+change the address for receiving notices, request, demands, or other
+communication by not less than three (3) days prior notice in accordance with
+this Paragraph. Telephone numbers are provided for convenience only.
+(c)    Purchaser and Seller may from time to time notify the other of changes
+regarding where and to whom notices should be sent by sending notification of
+such changes pursuant to this Paragraph.
+25.    Escrow Agent.
+(a)    Duties. It is agreed that the duties of Escrow Agent and the Closing
+Agent (collectively referred to in this Paragraph 27 as Escrow Agent) are only
+such as are specifically provided herein being purely ministerial in nature, and
+that Escrow Agent shall incur no liability whatsoever except for willful
+misconduct or gross negligence so long as Escrow Agent has acted in good faith
+and followed the terms of the Agreement. Seller and Purchaser release Escrow
+Agent from any act done or omitted to be done by Escrow Agent in good faith in
+the performance of Escrow Agent’s duties hereunder.
+(b)    Responsibilities. Escrow Agent shall not be required to defend any legal
+proceedings which may be instituted against Escrow Agent in respect to the
+subject matter of these instructions unless requested to do so by Seller and
+Purchaser and is indemnified to the reasonable satisfaction of the Escrow Agent
+against the cost and expense of such defense. In the event (i) of any suit
+between Seller and Purchaser wherein Escrow Agent is made a party by virtue of
+acting as such Escrow Agent hereunder, or (ii) of any suit wherein Escrow Agent
+interpleads the Deposit, other than a suit in which Escrow Agent is ultimately
+determined to have committed willful misconduct or gross negligence, Escrow
+Agent shall be entitled to recover reasonable attorneys’ fees and costs actually
+incurred, said fees and costs to be assessed as court costs and paid from the
+Deposit held by Escrow Agent or the court, as the case may be. Escrow Agent
+shall not be required to institute legal proceedings of any kind. Escrow Agent
+shall have no responsibility for the genuineness or validity of any document or
+other item deposited with Escrow Agent, and shall be fully protected in acting
+in accordance with any written instructions given to Escrow Agent hereunder and
+believed by Escrow Agent to have been signed by the proper parties.
+(c)    Sole Liability. Escrow Agent assumes no liability under this Agreement
+except that of a stake holder. If there is any dispute as to whether Escrow
+Agent is obligated to deliver the Deposit, or as to whom that Deposit is to be
+delivered, Escrow Agent will not be obligated to make any delivery thereof, but
+in such event shall hold the Deposit until receipt by Escrow Agent of any
+authorization in writing signed by all of the persons having any interest in
+such dispute, directing the disposition thereof, or in the absence of such
+authorization, Escrow Agent shall hold the Deposit until the final determination
+of the rights of the parties in an appropriate proceeding. If such written
+authorization is not given, or proceedings for such determination are not begun
+and diligently continued, Escrow Agent may, but is not required to, bring an
+appropriate action or proceeding for leave to deposit the Deposit into the
+Registry of Court pending such determination. In making delivery of the Deposit
+in the manner provided for in this Agreement, Escrow Agent shall have no further
+liability in the matter. Escrow Agent shall not be liable for loss of the
+Deposit due to the failure of any financial institution in which the Deposit is
+placed so long as Escrow Agent places the Deposit in a federally insured
+financial institution acceptable to Purchaser and Seller in their sole
+discretion.
+(d)    Escrow Agent as Counsel to Seller. Purchaser hereby expressly
+acknowledges that Escrow Agent also serves as counsel to Seller in connection
+with this Agreement and the transaction contemplated herein and Purchaser
+specifically acknowledges and agrees that the duties of Escrow Agent, as Escrow
+Agent hereunder, shall not prohibit its representation of Seller, as Seller’s
+counsel, in any matter which arises under or which is a result of this
+Agreement, including, without limitation, a dispute relating to the Deposit.
+(e)    Confirmation of Agreement to Hold Deposit. Escrow Agent shall not be
+required to execute this Agreement. By accepting the Deposit Escrow Agent agrees
+that Escrow Agent will hold the Deposit in escrow pursuant to the provisions of
+this Agreement.
+26.    Representations, Warranties and Covenants. Seller and Purchaser
+respectively hereby make the following representations. Such representations and
+warranties shall also be deemed made as of the Closing Date and shall survive
+Closing for eighteen (18) months.
+(a)    Seller’s Representations.
+(i)    Subject to the satisfaction of the Board Approval Condition (unless
+deemed waived in accordance with this Agreement), Seller has complete and full
+authority to execute, deliver and perform this Agreement and will have at
+Closing complete and full authority to convey to Purchaser marketable fee simple
+title to the Property, subject only to the Permitted Exceptions.
+(ii)    Seller hereby discloses that Orange County, Florida has conducted a two
+(2) year feasibility study for the widening of Orange Avenue, which would
+include the portion of the road that currently bisects the Orange County Land,
+and that the Seller’s civil engineer has obtained an agreement from Orange
+County to allow the additional flow of stormwater and surface water drainage
+from the road expansion to drain into joint use retention ponds located on the
+Orange County Land. Consequently, the retention ponds intended to be constructed
+pursuant to the development of the Orange County Land (the “Orange Ave. Widening
+and Pond Expansion”) will need to be expanded by or at the direction of
+Purchaser post-Closing. Other than the Orange Ave. Widening and Pond Expansion,
+Seller has received no notice and has no knowledge of any pending or threatened
+taking or condemnation of the Property or any portion thereof. In the event
+Seller should receive such notice prior to Closing, Seller shall promptly
+deliver a copy of such notice to Purchaser.
+(iii)    Neither the entering into nor the performance of this Agreement nor the
+consummation of the transaction contemplated hereby will constitute or result in
+a violation or breach by Seller of any judgment, order, writ, injunction, or
+decree issued against or imposed upon it or of any contract to which it is a
+party, or to the best of Seller’s knowledge, will result in a violation by
+Seller of any applicable law, order, rule, or regulation of any governmental
+authority.
+(iv)    Seller has not received any notice of any actual or threatened action,
+litigation, or proceeding by any organization, person, individual or
+governmental agency (including governmental actions under condemnation authority
+or proceedings similar thereto) against the Property.
+(v)    The Property is not within the boundary of any Community Development
+District or special taxing district or subject to any requirement of either.
+(vi)    Except for this Agreement, the Purchase Contracts (as hereinafter
+defined), and that certain Agreement Regarding Purchase of Impact Fee Credits
+between Seller and South Orange Industrial Properties, LLC, a South Carolina
+limited liability company, that certain Declaration of Restrictive Use Covenant
+by Seller recorded April 24, 2020, in Official Records Book 5713, page 1440, of
+the public records of Osceola County, Florida, and that certain Right of First
+Offer Agreement between Seller and Hallmark Equity Partners, LLC, a Texas
+limited liability company, recorded April 24, 2020, in Official Records Book
+5713, page 1522, of the public records of Osceola County, Florida (the “ROFO
+Agreement”), Seller has entered into no other purchase agreement, right of first
+refusal agreement or right of first offer agreement with respect to the Property
+or Impact Fee Credits.
+(vii)    All parties who have performed services, provided labor or supplied
+materials in connection with Seller’s ownership and maintenance of the Property
+have been or at the Closing will be paid in full and all liens arising therefrom
+(or claims which with the passage of time, the giving of notice, or both, could
+mature into liens), have been satisfied and released.
+(viii)    Seller shall maintain the Property in its existing condition and
+deliver it to Purchaser at Closing in such condition.
+(ix)    Except with respect to the Environmental Conditions disclosed and set
+forth in Section 19 of this Agreement, Seller has no actual knowledge of, and
+Seller has not received any written notice of, any violations of applicable
+environmental laws and regulations concerning the Property, and represents and
+warrants, (i) to its current actual knowledge, that, during the term of its
+ownership of the Property, there have been no violations of any such
+environmental laws other than as disclosed in Section 19 of this Agreement, and
+(ii) Seller has not received a written summons, citation, directive, notice,
+complaint or letter from the United States Environmental Protection Agency, the
+State of Florida Department of Environmental Protection, or other federal, state
+or local governmental agency or authority specifying any alleged violation of
+any environmental law, rule, regulations or order at or on the Property.
+(x)    Seller has good and marketable fee simple title to the Project and good
+and marketable title to the rest of the Property, free and clear of any and all
+liens, security interests, encumbrances or other restrictions, whether existing
+of record or otherwise, that will exist at Closing other than the Permitted
+Exceptions.
+(xi)    Seller is not in default, in any material respect, with the terms of any
+of the Permitted Exceptions.
+(xii)    All ad valorem taxes, charges and assessments due and payable with
+respect to the Property have been paid or will be paid at Closing as provided in
+this Agreement. There are no confirmed, pending or, to the Seller’s knowledge,
+contemplated special assessments against the Property.
+(xiii)    Seller is not a "foreign person" which would subject Purchaser to the
+withholding tax provisions of Section 1445 of the Internal Revenue Code of 1954,
+as amended.
+(xiv)    To Seller’s knowledge, the Property is in compliance with all
+applicable governmental and regulatory laws, requirements, and regulations.
+(xv)    Seller has no knowledge of any pending proceedings that could or would
+cause the change, redefinition, or other modification of the zoning
+classification of, or access to, the Property.
+(xvi)    With respect to the Third Party Contracts: (A) there are no Third Party
+Contracts other than those Third Party Contracts described on Exhibit “E”
+attached hereto and hereby made a part hereof that will survive Closing or
+otherwise impose an obligation on the Purchaser; (B) true and correct copies of
+such Third Party Contracts (included all amendments thereof) are included within
+the Property Information; (C) to Seller’s knowledge, the Third Party Contracts
+are in full force and effect and have been validly executed, and there have been
+no written or oral modifications, alterations or amendments of or to the Third
+Party Contracts except as set forth on Exhibit “E” attached hereto and hereby
+made a part hereof; and (D) to Seller’s knowledge, Seller has fulfilled all of
+its material duties and obligations in connection with the Third Party
+Contracts, Seller is not in default in any material respect under any of the
+terms and provisions of the Third Party Contracts and no other party is in
+default of any of its material obligations under its Third Party Contract.
+(xvii)    All copies of documents furnished or to be furnished or made available
+to Purchaser by Seller or the Association in connection with this Agreement are
+or will, to Seller’s knowledge, be true and complete copies of the originals
+(including all amendments thereto. Seller has not knowingly and intentionally
+withheld additional due diligence items that would have the effect of making the
+Property Information provided to Purchaser materially misleading or false.
+(xviii)    Attached hereto as Schedule 28(a)(xviii) is a true, correct, and
+complete rent roll for the Project identifying each tenant under a Project
+Lease, each guarantor of a Project Lease, the monthly base rent and the
+approximate square footage of each such tenant’s premises (as applicable), the
+commencement and expiration date of each Project Lease, and the amount of each
+such tenant’s security deposit, if any (the “Rent Roll”).
+(xix)    With respect to the Project Leases: (A) there are no leases of the
+Property other than those Project Leases described in Schedule 28(a)(xix)
+attached hereto; (B) true and correct copies of the Project Leases (including
+all amendments and guaranties thereof) are included within the Property
+Information; (C) to Seller’s knowledge, the Project Leases are in full force and
+effect and have been validly executed, and there have been no written or oral
+modifications, alterations or amendments of or to the Project Leases, except as
+set forth on Schedule 28(a)(xix); (D) to Seller’s knowledge, Seller has
+fulfilled all of its material duties and obligations in connection with the
+Project Leases, Seller is not in default in any material respect under any of
+the terms and provisions of the Project Leases and no tenant is in default in
+the payment of rent or any other charges payable to Seller, or in default of any
+of its other material obligations, under such tenant’s Project Lease; (E) there
+are no leasing commissions due in connection with the Project Leases which have
+not been paid in full, and no leasing commission shall be due in connection with
+the exercise of any options or renewals under any of the Project Leases except
+as otherwise set forth in such Project Leases; and (F) Seller has complied with
+the Florida Sales Tax laws in all respects relating to the Property and the
+Project Leases.
+(xx)    The Project is permitted by all applicable authorities, laws, ordinances
+and regulations to be used as the Intended Use.
+(xxi)    Attached hereto as Schedule 28(a)(xxi) is a true, correct and complete
+list of all of the Mitigation Credits owned by Seller on the Effective Date and
+which will be assigned to Purchaser at Closing as provided herein; provided,
+however, that the Mitigation Credits have been assigned on a non-exclusive basis
+to certain third party purchasers which are now owners of various parcels of
+land within the Osceola Corporate Center development.
+(xxii)    Attached hereto as Schedule 28(a)(xxii) is a true, correct and
+complete list of all of the Impact Fee Credits owned by Seller on the Effective
+Date and which will be assigned to Purchaser at Closing as provided herein.
+(xxiii)    Attached hereto as Schedule 28(a)(xxiii) is a true, correct and
+complete list of all of the Personalty that will be conveyed to Purchaser at
+Closing as provided herein.
+(xxiv)    Attached hereto as Schedule 28(a)(xxiv) is a true, correct and
+complete list of all trademarks, service marks and domain names used in
+connection with the Property
+(xxv)    There is no action, suit, litigation, hearing, investigation or
+administrative proceeding pending or, to Seller knowledge, threatened, against
+Seller, the Property, the Association or any of the Association’s property.
+(xxvi)    The financial information regarding the budget, collections,
+expenditures, and reserves of the Association and information regarding all
+general and special assessments of the Association are set forth in the Property
+Information and are accurate as of the Effective Date in all material respects.
+(xxvii)    Since December 31, 2019, the Association has not: (A) changed its tax
+reporting or accounting policies or practices; (B) settled or compromised any
+liability for taxes or made or rescinded any tax election; (C) incurred any debt
+except in the ordinary course of business; (D) suffered any theft, damage,
+destruction or loss (without regard to any insurance) to any tangible asset or
+assets having a value in excess of Twenty-Five Thousand and No/100 Dollars
+($25,000.00) individually or Fifty Thousand and No/100 Dollars ($50,000.00) in
+the aggregate; (E) sold, assigned, transferred or licensed any of its assets
+other than in the ordinary course of business, or committed to sell, assign,
+transfer or license any of its assets other than in the ordinary course of
+business or pursuant to this Agreement; (F) amended, canceled, terminated,
+relinquished, waived or released any contract material to its business, except
+in the ordinary course of business; (G) instituted or settled any action, claim,
+suit or proceeding that involved more than Seventy-Five Thousand and No/100
+Dollars ($75,000.00); or (H) agreed to take any of the actions described in
+clauses (A) through (G) above.
+(xxviii)    The Association does not have any employees. The Association (A) is
+not a party to any collective bargaining agreement or similar union contract or
+any employment agreement, and the Association is not bound by any such agreement
+or contract, and (B) does not sponsor or maintain any employee benefit plans,
+programs, policies or arrangements, whether or not subject to the Employee
+Retirement Income Security Act of 1974, as amended, for any individuals who
+provide or provided services to the Property or any of the Association’s
+property.
+(xxix)    None of Seller, TBC or the Association has (A) made a general
+assignment for the benefit of creditors, (B) filed any voluntary petition in
+bankruptcy, (C) suffered the filing of an involuntary petition against it in any
+court, or with any governmental body, pursuant to any statute either of the
+United States or of any State, for a petition in bankruptcy or insolvency or
+seeking to affect any plan or other arrangement with creditors, (D) suffered the
+appointment of a receiver to take possession of all, or substantially all, of
+Seller’s, TBC’s or the Association’s assets, (E) suffered the attachment or
+other judicial seizure of all, or substantially all, of Seller’s, TBC’s or the
+Association’s assets, or (F) admitted in writing its inability to pay its debts
+as they come due.
+(xxx)    None of Seller, TBC or the Association, nor any of their respective
+directors, officers, members, managing members, employees, agents,
+representatives and/or affiliates, has been, is now, or shall be at any time
+prior to or at the Closing, an individual, corporation, partnership, joint
+venture, association, joint stock company, trust, trustee, estate, limited
+liability company, unincorporated organization, real estate investment trust,
+government or any agency or political subdivision thereof, or any other form of
+entity (collectively or individually as the context shall so require, a
+“Person”) with whom a United States citizen, entity organized under the laws of
+the United States or its territories or entity having its principal place of
+business within the United States or any of its territories (collectively, a
+“U.S. Person”), is prohibited from transacting business of the type contemplated
+by this Agreement, whether such prohibition arises under United States law,
+regulation, executive orders and lists published by the Office of Foreign Assets
+Control, Department of the Treasury (“OFAC”) (including those executive orders
+and lists administered by OFAC with respect to Persons that have been designated
+by executive order or by the sanction regulations of OFAC as Persons with whom
+U.S. Persons may not transact business or must limit their interactions to types
+approved by OFAC “Specially Designated Nationals and Blocked Persons”) or
+otherwise. Neither of Seller, TBC nor the Association has been, is now nor shall
+be at any time prior to or at the Closing a Person with whom a U.S. Person,
+including a United States Financial Institution as defined in 31 U.S.C. 5312, as
+periodically amended (“Financial Institution”), is prohibited from transacting
+business of the type contemplated by this Agreement, whether such prohibition
+arises under United States law, regulation, executive orders and lists
+administered by the OFAC (including those executive orders and lists published
+by OFAC with respect to Specially Designated Nationals and Blocked Persons) or
+otherwise.
+(xxxi)    Neither Seller, TBC nor the Association: (A) is under investigation by
+any governmental authority for, or has been charged with, or convicted of, money
+laundering, drug trafficking, terrorist related activities, any crimes which in
+the United States would be predicate crimes to money laundering, or any
+violation of any Anti-Money Laundering Laws; (B) has been assessed civil or
+criminal penalties under any Anti-Money Laundering Laws; or (C) has had any of
+its funds seized or forfeited in any action under any Anti-Money Laundering Laws
+or otherwise been in violation of any Anti-Money Laundering Laws. As used
+herein, the term “Anti-Money Laundering Laws” means laws, regulations and
+sanctions, state and federal, criminal and civil, that: (w) limit the use of
+and/or seek the forfeiture of proceeds from illegal transactions; (x) limit
+commercial transactions with designated countries or individuals believed to be
+terrorists, narcotics dealers or otherwise engaged in activities contrary to the
+interests of the United States; (y) require identification and documentation of
+the parties with whom a Financial Institution conducts business; or (z) are
+designed to disrupt the flow of funds to terrorist organizations. Such laws,
+regulations and sanctions shall be deemed to include the USA PATRIOT Act of
+2001, Pub. L. No. 107-56 (the “Patriot Act”), the Bank Secrecy Act, 31 U.S.C.
+Section 5311 et seq., the Trading with the Enemy Act, 50 U.S.C. App. Section 1
+et seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701
+et seq., and the sanction regulations promulgated pursuant thereto by the OFAC,
+as well as laws relating to prevention and detection of money laundering in 18
+U.S.C. Sections 1956 and 1957.
+(xxxii)    To the knowledge of Seller, Seller, TBC and the Association are, have
+been, and will be in compliance with any and all applicable provisions of the
+Patriot Act.
+(xxxiii)    The Property Information contains true, correct and complete copies
+of the articles of incorporation, bylaws, and any other organizational or
+constituent documents of the Association (and all amendments, supplements, and
+modifications thereto) (collectively, the “Organizational Documents”), and
+Seller is not in default or in violation of any provision of the Organizational
+Documents or the Declaration.
+(xxxiv)    No filing with, and no permit, authorization, consent or approval of,
+any governmental authority or other Person is necessary for the consummation by
+Seller of the transactions contemplated by this Agreement. Neither the execution
+and delivery of this Agreement by Seller, nor the consummation by Seller of the
+transactions contemplated under this Agreement, nor compliance by Seller and TBC
+with any of the terms of this Agreement will: (A) violate any Organizational
+Documents; (B) violate any applicable law, judgment, order or decree with
+respect to Seller, TBC, the Association or the Property; or (C) result in the
+creation or imposition of any lien or encumbrance on the Property or the
+Membership.
+(xxxv)    No claims, deficiencies or assessments have been asserted in writing
+or, to Seller’s knowledge, are threatened, by any taxing authority with regard
+to any taxes or tax returns of, or with respect to, the Association, and (B) no
+audits or examinations of any taxes or tax returns of, or with respect to, the
+Association are currently ongoing, pending, or, to Seller’s knowledge,
+threatened by any taxing authority.
+(xxxvi)    The Association has timely filed all tax returns required to be filed
+by such entity, all such tax returns were true, correct and complete in all
+material respects and there are no open contests with respect thereto. The
+Association has timely paid all taxes due and payable by it.
+(xxxvii)    The Association has timely and properly withheld (A) all required
+amounts from payments to its employees (if any), agents, contractors,
+shareholders, lenders, and other persons or entities, and (B) all taxes, in each
+case, required to be withheld. In accordance with applicable laws, the
+Association has timely and properly remitted all withheld taxes to the proper
+taxing authority.
+(xxxviii)    The Property Information contains true, correct and complete copies
+of (A) the tax returns of the Association for the taxable years 2018 and 2019,
+and (B) all examination reports and statements of deficiencies, if any, relating
+to the audit of such tax returns by any governmental authority, for each taxable
+year beginning on or after January 1, 2018.
+(xxxix)    Attached hereto as Schedule 28(a)(xxix) is a true, correct and
+complete list of all bank accounts owned by the Association.
+(xl)    Except for the Orange Ave. Widening and Pond Expansion, the Third Party
+Contracts, the Permitted Exceptions, the work required to remediate the
+Environmental Conditions and the intersection improvements described in Section
+9(c) hereof, to Seller’s actual Knowledge, there are no outstanding agreements
+or commitments by Seller or the Association that would require the payment of
+any money to, or the performance of any improvements or other obligations
+benefiting or required by, any governmental authorities that will be binding on
+Purchaser, the Association or the Property after Closing.
+(b)    Purchaser’s Representations.
+To induce Seller to enter into this Agreement and to sell the Property,
+Purchaser represents and warrants to Seller that:
+(i)    Except for this Agreement, Purchaser has entered into no other purchase
+or commission agreement with respect to the Property.
+(ii)    Purchaser shall pay at or prior to Closing all claims, liabilities or
+expenses associated with its inspection, permitting and development of the
+Property up to the Closing Date.
+(iii)    Purchaser has not (a) made a general assignment for the benefit of
+creditors, (b) filed any voluntary petition or suffered the filing of an
+involuntary petition by Purchaser’s creditors, (c) suffered the appointment of a
+receiver to take all, or substantially all, of Purchaser’s assets, (d) suffered
+the attachment or other judicial seizure of all, or substantially all, of
+Purchaser’s assets, or (e) admitted in writing its inability to pay its debts as
+they fall due, and no such action is threatened or contemplated. If any of such
+actions have been taken or brought against Purchaser, then prior to the date
+hereof the same have been fully disclosed and Purchaser discharged therefrom so
+that there are no prohibitions or conditions upon Purchaser’s acquisition of the
+Property.
+(iv)    Neither the execution and delivery of this Agreement nor the
+consummation of the transaction contemplated by this Agreement will result
+(either immediately or after the passage of time and/or the giving of notice) in
+breach or default by Purchaser under any agreement or understanding to which
+Purchaser is a party or by which Purchaser may be bound or which would have an
+effect upon Purchaser’s ability to fully perform its obligations under this
+Agreement.
+(v)    Purchaser has the right, power and authority to execute, deliver and
+perform this Agreement without obtaining any consents or approvals from or the
+taking of any action with respect to, any third parties, and Purchaser has taken
+all required limited liability company action to enter into and perform its
+obligations under this Agreement. This Agreement, when executed and delivered by
+Purchaser and Seller, will constitute the valid and binding agreement of
+Purchaser.
+(vi)    None of Purchaser or any of its Affiliates, nor any of their respective
+directors, officers, members, managing members, agents, representatives and/or
+affiliates, has been, is now, or shall be at any time prior to or at the
+Closing, an individual, corporation, partnership, joint venture, association,
+joint stock company, trust, trustee, estate, limited liability company,
+unincorporated organization, real estate investment trust, government or any
+agency or political subdivision thereof, or any other form of entity
+(collectively or individually as the context shall so require, a “Person”) with
+whom a United States citizen, entity organized under the laws of the United
+States or its territories or entity having its principal place of business
+within the United States or any of its territories (collectively, a “U.S.
+Person”), is prohibited from transacting business of the type contemplated by
+this Agreement, whether such prohibition arises under United Sates law,
+regulation, executive orders and lists published by the Office of Foreign Assets
+Control, Department of the Treasury (“OFAC”) (including those executive orders
+and lists administered by OFAC with respect to Persons that have been designated
+by executive order or by the sanction regulations of OFAC as Persons with whom
+U.S. Persons may not transact business so must limit their interactions to types
+approved by OFAC “Specially Designated Nationals and blocked Persons”) or
+otherwise. Neither Purchaser or any of its Affiliates has been, is now nor shall
+be at any time prior to or at the Closing a Person with whom a U.S. Person,
+including a United Sates Financial Institution as defined in 31 U.S.C. 5312, as
+periodically amended (“Financial Institution”), is prohibited from transacting
+business of the type contemplated by this Agreement, whether such prohibition
+arises under United States law, regulation, executive orders and lists
+administered by the OFAC (including those executive orders and lists published
+by OFAC with respect to Specially Designated Nationals and Blocked Persons) or
+otherwise.
+(vii)    Neither Purchaser or any of its Affiliates: (A) is under investigation
+by any governmental authority for, or has been charged with, or convicted of,
+money laundering, drug trafficking, terrorist related activities, any crimes
+which in the United States would be predicate crimes to money laundering, or any
+violation of any Anti-Money Laundering Laws; (B) has been assessed civil or
+criminal penalties under any Anti-Money Laundering Laws; or (C) has had any of
+its funds seized or forfeited in any action under any Anti-Money Laundering Laws
+or otherwise been in violation of any Anti-Money Laundering Laws. As used
+herein, the term “Anti-Money Laundering Laws” means laws, regulations and
+sanctions, state and federal, criminal and civil, that: (w) limit the use of
+and/or seek the forfeiture of proceeds from illegal transactions; (x) limit
+commercial transactions with designated countries or individuals believed to be
+terrorists, narcotics dealers or otherwise engaged in activities contrary to the
+interests of the United States; (y) require identification and documentation of
+the parties with whom a Financial Institution conducts business; or (z) are
+designed to disrupt the flow of funds to terrorist organizations. Such laws,
+regulations and sanctions shall be deemed to include the USA PATRIOT Act of
+2001, Pub. L. No. 107-56 (the “Patriot Act”), the Bank Secrecy Act, 31 U.S.C.
+Section 5311 et seq., the Trading with the Enemy Act, 50 U.S.C. App. Section 1
+et seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701
+et seq., and the sanction regulations promulgated pursuant thereto by the OFAC,
+as well as laws relating to prevention and detection of money laundering in 18
+U.S.C. Sections 1956 and 1957.
+(viii)    To the knowledge of Purchaser, Purchaser and its Affiliates are, have
+been, and will be in compliance with any and all applicable provisions of the
+Patriot Act.
+(c)    Survival; Indemnification. From and after the Closing, each entity
+constituting Seller shall indemnify, defend and hold harmless Purchaser, the
+Association and their respective affiliates, officers, directors, shareholders,
+members, managers, partners, agents, representatives, successors and assigns
+(collectively, “Purchaser Parties”) from and against any and all reasonable
+out-of-pocket losses, costs, damages, liens, claims, liabilities or expenses
+(including, but not limited to, reasonable out-of-pocket attorneys’ fees and
+costs) incurred or suffered by any Purchaser Party arising out of or relating to
+(i) the failure of Seller to complete the Oil Spill Remediation in accordance
+with this Agreement, or (ii) any breach of any representation or warranty made
+by such entity in this Agreement (collectively referred to as “Breaches” and
+individually as a “Breach”). After the Board Approval Condition is satisfied,
+Tupperware Brands Corporation, a Delaware corporation, shall execute the Joinder
+in the form attached hereto and will circulate the executed Joinder to the
+parties set forth in the Notice section of this Agreement for the purpose of
+guaranteeing Seller’s indemnification obligations pursuant to this paragraph.
+The indemnification obligations under this paragraph shall survive Closing for a
+period of eighteen (18) months; provided, that any claim made with reasonable
+specificity by the party seeking to be indemnified within such time period shall
+survive until such claim is finally and duly resolved. In the event that a
+Purchaser Party fails to timely make an indemnification claim under this
+paragraph, then such Purchaser Party shall be deemed to have waived its right to
+make such claim.
+27.    Miscellaneous.
+(a)    Non-Merger. The provisions of all paragraphs of this Agreement imposing
+obligations or conditions upon the Property or Purchaser or Seller that either
+expressly or by their sense and context are intended to survive the Closing Date
+shall so survive, and shall not be deemed merged into the Deed from Seller to
+Purchaser at Closing. If either party, subsequent to Closing, shall violate any
+of the paragraph provisions and obligations that survive the Closing of this
+Agreement, the prevailing party will be entitled to recover all costs, expenses
+and attorneys’ fees incurred by it from the non-prevailing party in connection
+with the enforcement of such provisions and obligations, including without
+limitation costs and fees incurred before trial, at trial and on appeals.
+(b)    Entire Agreement. This Agreement (including the Exhibits hereto) contains
+the entire understanding between the parties and the parties agree that no
+representation was made by or on behalf of either that is not contained in this
+Agreement, and that in entering into this Agreement neither relied upon any
+representation not herein contained.
+(c)    Captions. The captions for each paragraph of this Agreement are for
+convenience and reference only and in no way define, describe, extend or limit
+the scope or intent of this Agreement, or the intent of any provision hereof.
+(d)    Non-Recording. Neither this Agreement nor any memorandum thereof may be
+recorded in the Public Records of any County in the State of Florida by
+Purchaser, and if this Agreement or any memorandum thereof is recorded by
+Purchaser, at the option of Seller, this Agreement will become null and void by
+the act and fact of recording and Purchaser will forfeit all of its Deposit.
+(e)    Counterparts. This Agreement may be executed in two or more counterparts,
+each of which shall be and be taken to be an original, and are collectively but
+one instrument.
+(f)    Amendments and Waivers. This Agreement may not be amended, modified,
+altered or changed in any respect whatsoever, except by a further agreement in
+writing duly executed by the parties hereto. No failure by Purchaser or Seller
+to insist upon the strict performance of any covenant, duty, agreement or
+condition of this Agreement or to exercise any right or remedy upon a breach
+thereof shall constitute a waiver of any such breach or of such or any other
+covenant, agreement, term or condition. Any party hereto, by written notice
+executed by such party, may, but shall be under no obligation to waive any of
+its rights or any conditions to its obligations hereunder, or any duty,
+obligation or covenant of any other party hereto. No waiver shall affect or
+alter this Agreement but each and every covenant, agreement, term and condition
+of this Agreement shall continue in full force and effect with respect to any
+other then existing or subsequent breach thereof.
+(g)    Time of the Essence. Time, and timely performance, is of the essence of
+this Agreement and of the covenants and provisions hereunder. When a date upon
+which a specified event shall occur or be performed falls upon a weekend or
+Federal or Florida state holiday or a day on which the banks in Florida are
+closed, the time allowed for the event or performance to occur shall be extended
+to 11:59 p.m. on the next succeeding business day. If the performance by either
+party of any of its obligations under this Agreement is delayed by an act of
+God, natural disaster, terrorist activity, war, labor dispute, governmental
+order, public health epidemic or pandemic, or other matter beyond the reasonable
+control of such party, without such party’s fault or negligence, then the party
+affected shall notify the other party in writing of the specific obligation
+delayed, and the duration of the delay, and the deadline for completion of such
+obligation shall be extended by a like number of days.
+(h)    Typewritten or Handwritten Provisions. Handwritten provisions inserted
+into this Agreement and type-written provisions initialed by both parties shall
+control over the typewritten provisions in conflict therewith.
+(i)    Successors, Assigns, Number and Gender. The rights and obligations
+created by this Agreement shall be binding upon and inure to the benefit of the
+parties hereto, their heirs, executors, receivers, trustees, and permitted
+successors and assigns. Whenever used herein the singular number shall include
+the plural, the plural the singular, and the use of any gender shall include all
+genders, as the context requires.
+(j)    Attorneys’ Fees and Expert Fees. In the event that either party finds it
+necessary to employ an attorney to enforce or to obtain a judicial
+interpretation of any provision of this Agreement, the prevailing party shall be
+entitled to recover from the other party its reasonable attorneys’ fees actually
+suffered or incurred and reasonable expert fees, including but not limited to,
+engineering fees, survey fees, appraisal fees and all reasonable costs incurred
+in connection therewith, at both trial and appellate levels; including
+bankruptcy proceedings, in addition to any other performances or damages to
+which such party may be entitled.
+(k)    Governing Law and Jurisdiction. This Agreement shall be interpreted and
+enforced under the laws of the State of Florida. In the event of any litigation
+arising out of or pursuant to this Agreement, venue for all such actions shall
+lie in the Circuit Court of the county in which the Property lies. Seller and
+Purchaser hereby consent to jurisdiction of any such action in the Circuit Court
+of the county in which the Property lies. Seller and Purchaser hereby WAIVE
+THEIR RIGHTS TO TRIAL BY JURY and consent to any action arising pursuant hereto
+to be heard by bench trial. The consent to jurisdiction and venue and waiver of
+jury trial are material inducements to Purchaser to enter into this Agreement.
+(l)    Severability. If any provisions of this Agreement are held to be illegal
+or invalid, the other provisions shall remain in full force and effect.
+(m)    Construction. The language used in this Agreement will be construed
+according to its fair and common meaning and will not be construed more
+stringently or liberally for either party.
+(n)    Radon Gas. Radon is a naturally occurring radioactive gas that, when it
+has accumulated in a building in sufficient quantities, may present health risks
+to persons who are exposed to it over time. Levels of radon that exceed federal
+and state guidelines have been found in buildings in Florida. Additional
+information regarding radon and radon testing may be obtained from your county
+public health unit.
+(o)    No Agency. Seller is not, and shall not be for any purpose, the agent of
+Purchaser, and shall have no power or authority to bind Purchaser in any manner
+whatsoever. Purchaser is not, and shall not for any purpose, be the agent of
+Seller and shall have no power or authority to bind Seller in any manner
+whatsoever.
+(p)    Condemnation. In the event any proceedings in eminent domain are
+contemplated, threatened or instituted by any body having the power of eminent
+domain with respect to a material portion of the Property, and which would have
+a material adverse effect on Purchaser’s Intended Use of the Property, Purchaser
+may, at its option, by notice to Seller, terminate this Agreement, in which
+event the Deposit shall be immediately returned to the Purchaser. If Purchaser
+does not elect to terminate this Agreement or is not permitted to terminate this
+Agreement pursuant to this paragraph, then Purchaser shall proceed under this
+Agreement, in which event Seller shall, at Closing, assign to Purchaser its
+right, title and interest in and to any portion of the condemnation award
+allocable to the Property. Purchaser and Seller shall have the right during the
+pendency of this Agreement and after Closing to jointly negotiate or otherwise
+engage in dialogue with the condemning authority in respect to such eminent
+domain proceedings. Seller shall immediately give notice to Purchaser upon the
+occurrence of any condemnation proceedings affecting the Property that is known
+to Seller.
+(q)    Casualty. Risk of loss prior to the Closing shall be Seller's. If prior
+to Closing, any of the Property shall be materially damaged by any casualty
+(other than those attributable to Purchaser) and such damage is not repaired by
+Seller prior to Closing, then Purchaser will have the option, by written notice
+to Seller, to terminate this Agreement and receive an immediate refund of the
+full amount of the Deposit, whereupon Purchaser, Seller and Escrow Agent shall
+have no further obligations hereunder except for those matters set forth herein
+that survive the termination of this Agreement. If Purchaser does not elect to
+terminate this Agreement, or is not permitted to terminate this Agreement
+pursuant to this paragraph, then: (i) this Agreement will remain in full force
+and effect and Purchaser shall purchase the Property "as is”; and (ii) at
+Closing, Seller shall pay to Purchaser all deductible amounts under any policies
+of insurance and any sums collected by Seller under any policies of insurance
+because of damage to the Property due to the casualty (less the amount of any
+proceeds which have been used to repair such damage) and assign (to the extent
+assignable) to Purchaser all rights to collect such sums as may then be
+uncollected. Seller shall immediately give notice to Purchaser upon the
+occurrence of any damage to the Property.
+(r)    No Joint Venture or Partnership. Notwithstanding anything in this
+Agreement which may be interpreted or construed to the contrary, neither this
+Agreement nor the completion of the transaction contemplated by this Agreement
+shall create between Purchaser and Seller any business enterprise, whether it
+appear to be a joint venture or partnership, or any other business venture.
+(s)    Confidentiality. Seller and Purchaser hereby covenant, represent and
+warrant to one another to keep the terms of this Agreement strictly
+confidential, and not disclose or disseminate any of such terms by press
+releases, public announcements or otherwise without the prior written consent of
+the other party or except to the extent such information becomes a public record
+by the delivery of same to a local, state, or Federal government agency, or is
+required to be disclosed by court order or subpoena or pursuant to the
+disclosure circumstances of Tupperware Brands Corporation as a publicly-owned
+stock exchange listed corporation, provided, however, that Purchaser and Seller
+shall be permitted to disclose and discuss the terms of this Agreement and
+matters relating to the Property with their respective attorneys’, potential
+partners, investors, lenders, independent auditors, engineers, contractors,
+architects and consultants performing work related to the development of the
+Property for its Intended Use or to the Closing, who shall then be bound by this
+covenant of confidentiality.
+(t)    Consents or Approvals. Whenever the review, consent or approval of any
+party is required hereunder, any required review shall be promptly and
+diligently undertaken and, unless some other criteria for the granting or denial
+of such approval or consent is expressly provided herein, such consent or
+approval shall not be unreasonably withheld, delayed, conditioned or denied.
+28.    Outstanding Executed Contracts. Purchaser and Seller hereby acknowledge
+that they (or their affiliates) have entered or desire to enter into the
+following Contracts for the Sale and Purchase of Real Property (collectively, to
+the extent actually entered into, the “Purchase Contracts”):
+(a)    Contract for the Sale and Purchase of Real Property dated March 27, 2015,
+as amended through the date hereof between Seller, as seller, and OCP Trailside,
+LLC, a Delaware limited liability company, as purchaser for a purchase price of
+$2,000,000.00 (the “Trailside South Contract”), and at Closing, Purchaser shall
+pay Seller the amount owed Seller (or its affiliate) by Purchaser (or its
+affiliate) under that certain Reimbursement Agreement set forth in the Trailside
+South Contract in the amount of $52,146.50;
+(b)    Contract for Sale and Purchase of Real Property, between Seller, as
+seller, and Purchaser, as buyer for the sale of Lot 4 of Replat 33 for a
+purchase price of $2,029,500.00 (the “Lot 4 Contract”); and
+(c)    Contract for Sale and Purchase of Real Property, between Seller, as
+seller, and Purchaser, as buyer, for the sale of Replat 32 for a purchase price
+of $11,036,700.00 (the “Replat 32 Contract”).
+Seller and Purchaser hereby agree that if any of the transactions which are the
+subject of the Lot 4 Contract, the Trailside South Contract, and the Replat 32
+Contract close before the Closing under this Agreement, then the purchase prices
+paid at such closing(s) shall be credited against the Purchase Price at Closing.
+If a closing under any such Purchase Contract does not occur before the Closing,
+then such Purchase Contract(s) shall be terminated at Closing pursuant to the
+Termination of Purchase Contracts.
+29.    Seller’s Cooperation. Seller agrees to cooperate with Purchaser after
+Closing as may be reasonably requested by Purchaser, at no expense to Seller, to
+carry out the terms and intent of this Agreement and effectuate the transactions
+described herein.
+30.    Purchaser’s Equity Investor Approval. Seller and Purchaser hereby
+acknowledge and agree that Purchaser will seek to obtain approval of this
+Agreement, and the transactions contemplated hereunder, from its equity
+investors prior to the expiration of the Inspection Period.
+31.    Operations Prior to Closing. From the Effective Date through the Closing
+or earlier termination of this Agreement, Seller shall:
+(a)    at all reasonable times prior to the Closing Date (as defined below),
+give Purchaser, and its counsel, accountants and representatives, full access to
+all books and records with respect to the ownership, management and operation of
+the Association and the Property, shall permit them to copy the same and, to the
+extent in Seller’s possession, shall furnish Purchaser with all such information
+concerning the same as Purchaser may request;
+(b)    not enter into any new lease, service contract, construction contract,
+professional contract or other contract with respect to the Project or any
+modification, alteration, amendment, extension, renewal, termination or
+cancellation of any of the Project Leases or Third Party Contracts without the
+prior written consent of Purchaser;
+(c)    pay promptly when due all taxes, assessments, utility charges,
+indebtedness secured by mortgages or other liens, and, generally, all expenses
+(including repairs and replacements) incurred by Seller in the operation of the
+Property and the Association; and
+(d)    not take or consent to any action with Purchaser’s prior written consent
+that could modify the status of title to, present zoning of, access to, or
+assessed valuation of the Property.
+Seller shall promptly notify Purchaser, in writing: (i) of any failure by Seller
+to comply with its obligations under this Section; and (ii) if Seller discovers
+any defect, error, or omission in any of the materials delivered to Purchaser
+pursuant to this Agreement or any change in the Seller's representations set
+forth herein.
+32.    Severance of Real Property from Tupperware HQ Complex.Purchaser and
+Seller hereby agree that the Lease will specify the terms and conditions
+pursuant to which Purchaser may be allowed to sever a portion of the Tupperware
+HQ Complex from the Lease for future development and the consequent reduction in
+the Base Rent payable by Seller as tenant to Purchaser as landlord under the
+Lease and for consequent reduction in rent payable by Seller under the Lease.
+
+
+[SIGNATURE PAGES FOLLOW]
+IN WITNESS WHEREOF, Purchaser and Seller have executed this instrument as set
+forth below.
+SELLER:
+DEERFIELD LAND CORPORATION,
+a Delaware corporation
+By: /s/ Thomas M. Roehlk
+Name: Thomas M. Roehlk
+Its: Vice President and Secretary
+Date of Execution: May 26, 2020
+DART INDUSTRIES, INC.,
+a Delaware corporation
+By: /s/ Karen Sheehan
+Name: Karen Sheehan
+Its: Vice President and Secretary
+Date of Execution: May 26, 2020
+TUPPERWARE U.S., INC.,
+a Delaware corporation
+By: /s/ Karen Sheehan
+Name: Karen Sheehan
+Its: Vice President and Secretary
+Date of Execution: May 26, 2020
+[PURCHASER’S SIGNATURE PAGE FOLLOWS]
+
+
+PURCHASER:
+O’CONNOR MANAGEMENT LLC, a Delaware limited liability company
+By: /s/ William O’Connor
+Name: William O’Connor
+Title: Chief Executive Officer
+Date of Execution: May 26, 2020
+
+
+JOINDER
+This Joinder is executed for the sole purpose of agreeing to guarantee Seller’s
+indemnification obligations pursuant to the provisions of Section 28(c) of the
+Contract for Sale and Purchase of Real Property (the “Contract”) to which this
+Joinder is attached (collectively, the “Indemnity Obligations”). All initially
+capitalized terms not otherwise defined in this Joinder shall have the meanings
+ascribed to them in the Contract.
+The undersigned (“Guarantor”) acknowledges that it will derive substantial
+benefits by reason of Purchaser’s performance of its obligations under the
+Contract and that Purchaser’s agreement to enter into the Contract is
+conditioned upon the Guarantor’s agreement to guarantee the payment of the
+Indemnity Obligations. For good and valuable consideration, the receipt and
+sufficiency of which are hereby acknowledged, the Guarantor hereby guarantees to
+Purchaser the complete and timely payment of the Indemnity Obligations.
+Guarantor shall be jointly and severally liable with Seller for the timely
+payment of the Indemnity Obligations. It shall not be necessary (i) for
+Purchaser to first institute suit against Seller or any other person or entity,
+or to pursue or exhaust its remedies against any other person or security,
+before seeking payment of the Indemnity Obligations from Guarantor or (ii) that
+Seller be joined in any action at law or in equity against the Guarantor. To the
+fullest extent permitted by law, the Guarantor waives diligence, protest, notice
+of protest, presentment, demand of payment, notice of dishonor and all other
+suretyship defenses. Purchaser may bring one or more actions against Seller
+and/or Guarantor to enforce the payment of the Indemnity Obligations.
+GUARANTOR:
+___________________________, a
+_____________________________
+By:_________________________
+Print Name:__________________
+Title:________________________
+
+
+EXHIBITS
+EXHIBIT “A”    Osceola County Land
+EXHIBIT “A-1” Tupperware HQ Complex
+EXHIBIT “A-2” Additional Land
+EXHIBIT ‘B”    Orange County Land
+EXHIBIT “C”    Property Information
+EXHIBIT “D”    Non-Foreign Affidavit
+EXHIBIT “E”    Third Party Contracts
+EXHIBIT “F”    Land Use Approvals and Development Rights
+EXHIBIT “G”     HQ Site Plan
+SCHEDULES
+SCHEDULE 28(a)(xviii) Rent Roll
+SCHEDULE 28(a)(xix) Project Leases
+SCHEDULE 28(a)(xxi) Mitigation Credits
+SCHEDULE 28(a)(xxii) Impact Fee Credits
+SCHEDULE 28(a)(xxiii) Personalty
+SCHEDULE 28(a)(xxiv) Trademarks, Service Marks and Domain Names
+SCHEDULE 28(a)(xxxix) Association Bank Accounts
+
+
+
+EXHIBIT “A”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+OSCEOLA COUNTY LAND
+[TO BE PROVIDED UPON RECEIPT OF THE TITLE COMMITMENT]
+
+
+
+
+
+
+
+
+
+EXHIBIT “A-1”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+TUPPERWARE HQ COMPLEX
+contractimage1.gif [contractimage1.gif]
+
+
+contractimage2.gif [contractimage2.gif]
+
+
+contractimage3.gif [contractimage3.gif]
+
+
+contractimage4.gif [contractimage4.gif]
+
+
+
+
+
+EXHIBIT “A-2”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+ADDITIONAL LAND
+contractimage5.gif [contractimage5.gif]
+contractimage6.gif [contractimage6.gif]
+
+
+contractimage7.gif [contractimage7.gif]
+
+
+contractimage8.gif [contractimage8.gif]
+
+
+
+EXHIBIT “B”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+ORANGE COUNTY LAND
+[TO BE PROVIDED UPON RECEIPT OF THE TITLE COMMITMENT]
+
+
+
+
+
+
+
+EXHIBIT “C”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+PROPERTY INFORMATION
+Pursuant to Section 3(b) of the Agreement, the Property Information specified in
+the Agreement for use in the due diligence phase can be accomplished by
+electronic means through the following website address:
+Website Address:  http://occ.tupperware.com
+Purchaser may access the Property Information continuously, 24-hours daily,
+subject to any required system maintenance or interruptions beyond the control
+of the Seller.  You may print or download documents for your own use in
+evaluating the opportunity contained in the above-referenced agreement, but by
+accessing the Property Information you agree not to distribute copies or to
+provide access to any third party other than third parties who are acting as
+your agents in the transaction (e.g., attorneys, engineers, planners, etc.). 
+You will not have the ability to alter any documents.
+Please note that the Property Information is constantly evolving as the Osceola
+Corporate Center development is a dynamic project.  Accordingly, it is incumbent
+upon you to periodically check the datasite for newly-posted material.  A date
+column exists in the table of contents for your convenience in identifying such
+new material, but the Sellers will not notify you of newly-posted material.  It
+is also important to note that a large amount of Property Information available
+on the datasite may not be relevant to the property in question and that
+relevant information may be obtained only through the title work which is
+supplied at a later date.  You are cautioned to take this into consideration and
+to understand that information directly relevant to such property may only be
+ascertainable when the Property Information is reviewed in conjunction with the
+title work and a survey relating to the property.
+
+EXHIBIT “D”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+NON-FOREIGN AFFIDAVIT
+STATE OF FLORIDA
+COUNTY OF OSCEOLA
+This Non-Foreign Affidavit is provided pursuant to the requirements of I.R.C.
+Section 1445(b)(2) in connection with the sale by DEERFIELD LAND CORPORATION to
+____________________________.
+Section 1445 of the Internal Revenue Code provides that a transferee of a U.S.
+real property interest must withhold tax if the transferor is a foreign person.
+For U.S. tax purposes (including Section 1445), the owner of a disregarded
+entity (which has legal title to a U.S. real property interest under local law)
+will be the transferor of the property and not the disregarded entity. To inform
+___________________________________, that withholding of tax is not required
+upon the disposition of a U.S. real property interest by DEERFIELD LAND
+CORPORATION, the undersigned hereby certifies the following on behalf of
+DEERFIELD LAND CORPORATION:
+1.    Deerfield Land Corporation is not a foreign corporation, foreign
+partnership, foreign trust, or foreign estate (as those terms are defined in the
+Internal Revenue Code and Income Tax Regulations).
+2.    Deerfield Land Corporation is not a disregarded entity as defined in
+Income Tax Regulation Section 1.1445-2(b)(2)(iii);
+3.    Deerfield Land Corporation’s, U.S. employer identification number is
+________________; and
+4.    Deerfield Land Corporation has an office address of 14901 South Orange
+Blossom Trail, Orlando, Florida 32837, and is a Delaware corporation.
+Deerfield Land Corporation understands that this certification may be disclosed
+to the Internal Revenue Service, and that any false statement contained herein
+could be punishable by fine, imprisonment, or both.
+Under penalties of perjury, I declare that I have examined this certification,
+and to the best of my knowledge and belief it is true, correct, and complete,
+and I further declare that I have authority to sign this document on behalf of
+DEERFIELD LAND CORPORATION.
+DEERFIELD LAND CORPORATION, a Delaware corporation
+By:                        
+Name:                        
+Title:                        
+This instrument was sworn to and acknowledged before me by means of [ ] physical
+presence or [ ] online notarization, this ____ day of __________, 20___, by
+_____________________, _____________ of Deerfield Land Corporation, a Delaware
+corporation. He is £ personally known to me or £ has produced
+____________________ as identification.
+My Commission Expires:
+                            
+Notary Public Print:                    
+
+
+
+EXHIBIT “E”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+LIST OF THIRD PARTY CONTRACTS
+SERVICE PROVIDER
+ACCOUNT NUMBER
+AMOUNT
+DESCRIPTION
+Brightview
+(Landscape Maintenance)
+14185966 (for all 7 invoices)
+$6,308.00/mo
+$550.00/mo
+
+
+
+
+$600.00/mo
+$1,052.00/mo
+$962.00/mo
+$1,319.00/mo
+
+
+$524.00/mo
+Common roads
+Retention pond (behind Ashley Furniture)
+Loop pond
+Lots 1-6
+Lot 3 Roads
+Rapallo/Cinque Terre ponds
+Crosslands/Trailside ponds
+Earth Balance
+(Wetland Maintenance)
+72707.12
+$7,800/quarter
+Wetland vegetation treat.
+Kissimmee Utility Authority
+(Electric)
+101409920–001391040
+001409920–000738100
+001409920–000839620
+001409920–000864710
+001409920–001129700
+001409920–001392910
+@$2,500.00/mo
+@$3,500/mo
+@$24.00/mo
+$13.23/mo
+$800.00/mo
+$13.50/mo
+Orange Ave streetlights
+Centerview Timer
+Greenwald/Miranda
+Osceola/Greenwald
+Rapallo Fountain
+Orange Avenue timer
+Solitude Lake Management
+(Retention pond treatment)
+7486
+9068
+
+
+$336.00/mo
+$296.00/mo
+Crosslands
+Parcel 3&5
+Aquatic Mgmt.
+(Retention pond treatment)
+TBD
+$83.33/mo
+Retention pond (behind Ashley Furniture) treatment
+Lakeside Aquatic Weed Control
+No account number used
+@$250.00/mo
+Rapallo retention pond treatment
+Fountain Doctor
+No account number used
+Various
+As needed
+Toho Water Authority
+(Irrigation water)
+001409920 – 000744180
+001409920 – 000839620 001409920 – 001203600 (1600 Centerview)  - last payment
+was January 2020
+001409920 – 001268900
+001409920 – 033108759
+@$900.00/mo
+@$165.00/mo
+@$18.00/mo
+
+
+
+
+@$200.00/mo
+@$725.00/mo
+Greenwald/Centerview
+Greenwald/Miranda
+Centerview
+
+
+
+
+Osceola Parkway
+Orange Avenue
+
+
+
+
+EXHIBIT “F”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+LAND USE APPROVALS AND DEVELOPMENT RIGHTS
+1.
+Item I 4k of the Property Information on the data site for Osceola County,
+Florida
+
+2.
+Items I 16, 17, and 17a for Orange County, Florida
+
+
+
+
+
+
+
+
+
+
+EXHIBIT “G”
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+HQ SITE PLAN
+
+SCHEDULE 28(a)(xviii)
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT
+RENT ROLL
+Income from Cell Tower Lease is $1,107.39 per month
+
+
+
+
+
+
+
+SCHEDULE 28(a)(xix)
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+PROJECT LEASES
+Name of Lessee            Lease Description            Term        Rent
+SBA Infrastructure, LLC        Cell tower lease with
+T-Mobile        2010-2038    $1,107.39/mo
+(TBCOM Properties)        for 6,080 s.f.    
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+SCHEDULE 28(a)(xxi)
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+MITIGATION CREDITS
+
+
+PROPERTY INFORMATION ITEM
+RELEVANT PARCEL
+STATUS
+III.11
+Lot 5
+Completed
+III.12
+Crosslands
+Completed
+III.13
+OD
+Completed
+III.15
+Crosslands
+Completed
+III.16
+Lot 8
+Completed
+III.18
+Crosslands
+Completed
+III.21
+Replat 29 (Venezia)
+Active
+III.23
+Lot 3
+Completed
+III.25
+Lot 8
+Completed
+III.27
+Cinque Terre
+Completed
+III.40
+TOD
+Completed
+III.41
+TOD
+Completed
+III.48
+TOD
+Completed
+III.56
+Lot 6
+Completed
+
+
+
+
+SCHEDULE 28(a)(xxii)
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+IMPACT FEE CREDITS
+
+
+COUNTY
+ACCOUNT NUMBER
+BALANCE
+Orange County
+Trust Account #195
+$1,215,933.84
+Osceola County
+Trust Account #186
+$0
+
+
+
+Notes:
+(1)
+Seller expects additional Orange County impact fee credits in the approximate
+amount of $250,000 to be added to Seller’s account in the near future.
+
+(2)
+Seller is currently under contract to sell @$311,000 in Orange County impact fee
+credits to South Orange Industrial Properties, LLC, but Seller may terminate the
+contract subject to a Right-Of-First-Offer.
+
+(3)
+Seller expects additional Osceola County mobility fee credits in the approximate
+amount of $50,000 to be added to Seller’s account in September/October of 2020.
+
+(4)
+Agreements related to Seller’s impact fee credits/mobility fee credits are
+disclosed in the following Property Information items: III.36, III.37, III.38,
+III.44, III.47, III 57, III 58, and III 59.
+
+(5)
+Seller’s impact fee credit/mobility fee credit account statements are disclosed
+in the following Property Information items: X.4* and X.6.
+
+*Item X.4 of the Property Information is inaccurate since the balance on that
+account statement was reduced to $0 on March 19, 2020, when an affiliate of Fore
+Property Company purchased the amount shown on the Osceola County account
+statement. Osceola County has not been responsive to requests to issue a new
+statement due to the COVID-19 pandemic situation.
+
+
+
+SCHEDULE 28(a)(xxiiii)
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+PERSONALTY
+NONE
+
+
+
+
+
+--------------------------------------------------------------------------------
+
+
+
+
+
+
+SCHEDULE 28(a)(xxiv)
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+TRADEMARKS, SERVICE MARKS AND DOMAIN NAMES
+
+
+Trade Names                                Registration Number
+“THE CROSSLANDS“                        4813484
+
+
+Service Marks                            Registration Number
+None                                    N/A
+
+
+Domain Names                            Registration Number
+www.deerfieldland.com                        N/A
+http://occ.tupperware.com                        N/A
+
+
+
+
+
+SCHEDULE 28(a)(xxxix)
+TO CONTRACT FOR SALE AND PURCHASE OF REAL PROPERTY
+BETWEEN DEERFIELD LAND CORPORATION AND
+O’CONNOR MANAGEMENT LLC
+ASSOCIATION BANK ACCOUNTS
+Name of Bank                                Account Number
+[*]                                        [*]
+
+
+
+
+Schedule 28(a)(xxiv) - 1
+
+
+Exhibit 10.1
+
+ 
+
+Ocugen, Inc.
+Shares of Common Stock
+
+(par value $0.01 per share)
+
+ 
+
+Controlled Equity OfferingSM
+
+ 
+
+Sales Agreement
+
+ 
+
+June 12, 2020
+
+ 
+
+Cantor Fitzgerald & Co.
+
+499 Park Avenue
+
+New York, NY 10022
+
+ 
+
+Ladies and Gentlemen:
+
+ 
+
+Ocugen, Inc., a Delaware corporation (the “Company”), confirms its agreement
+(this “Agreement”) with Cantor Fitzgerald & Co. (the “Agent”), as follows:
+
+ 
+
+1.             Issuance and Sale of Shares. The Company agrees that, from time
+to time during the term of this Agreement, on the terms and subject to the
+conditions set forth herein, it may issue and sell through the Agent, shares of
+common stock (the “Placement Shares”) of the Company, par value $0.01 per share
+(the “Common Stock”); provided, however, that in no event shall the Company
+issue or sell through the Agent such number or dollar amount of Placement Shares
+that would (a) exceed the number or dollar amount of shares of Common Stock
+registered on the effective Registration Statement (defined below) pursuant to
+which the offering is being made, (b) exceed the number of authorized but
+unissued shares of Common Stock (less shares of Common Stock issuable upon
+exercise, conversion or exchange of any outstanding securities of the Company or
+otherwise reserved from the Company’s authorized capital stock), (c) exceed the
+number or dollar amount of shares of Common Stock permitted to be sold under
+Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d)
+exceed the number or dollar amount of shares of Common Stock for which the
+Company has filed a Prospectus Supplement (defined below) (the lesser of (a),
+(b), (c) and (d), the “Maximum Amount”). Notwithstanding anything to the
+contrary contained herein, the parties hereto agree that compliance with the
+limitations set forth in this Section 1 on the amount of Placement Shares issued
+and sold under this Agreement shall be the sole responsibility of the Company
+and that the Agent shall have no obligation in connection with such compliance.
+The offer and sale of Placement Shares through the Agent will be effected
+pursuant to the Registration Statement (as defined below) filed by the Company
+and was declared effective by the Securities and Exchange Commission (the
+“Commission”) on May 5, 2020, although nothing in this Agreement shall be
+construed as requiring the Company to use the Registration Statement to issue
+Common Stock.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+The Company has filed, in accordance with the provisions of the Securities Act
+of 1933, as amended (the “Securities Act”) and the rules and regulations
+thereunder (the “Securities Act Regulations”), with the Commission a
+registration statement on Form S-3 (File No. 333-237456), including a base
+prospectus, relating to certain securities, including the Placement Shares to be
+issued from time to time by the Company, and which incorporates by reference
+documents that the Company has filed or will file in accordance with the
+provisions of the Securities Exchange Act of 1934, as amended (the “Exchange
+Act”), and the rules and regulations thereunder. The Company has prepared a
+prospectus or a prospectus supplement to the base prospectus included as part of
+the registration statement, which prospectus or prospectus supplement relates to
+the Placement Shares to be issued from time to time by the Company (the
+“Prospectus Supplement”). The Company will furnish to the Agent, for use by the
+Agent, copies of the prospectus included as part of such registration statement,
+as supplemented, by the Prospectus Supplement, relating to the Placement Shares
+to be issued from time to time by the Company. The Company may file one or more
+additional registration statements from time to time that will contain a base
+prospectus and related prospectus or prospectus supplement, if applicable (which
+shall be a Prospectus Supplement), with respect to the Placement Shares. Except
+where the context otherwise requires, such registration statement(s), including
+all documents filed as part thereof or incorporated by reference therein, and
+including any information contained in a Prospectus (as defined below)
+subsequently filed with the Commission pursuant to Rule 424(b) under the
+Securities Act Regulations or deemed to be a part of such registration statement
+pursuant to Rule 430B of the Securities Act Regulations, is herein called the
+“Registration Statement.” The base prospectus or base prospectuses, including
+all documents incorporated therein by reference, included in the Registration
+Statement, as it may be supplemented, if necessary, by the Prospectus
+Supplement, in the form in which such prospectus or prospectuses and/or
+Prospectus Supplement have most recently been filed by the Company with the
+Commission pursuant to Rule 424(b) under the Securities Act Regulations,
+together with the then issued Issuer Free Writing Prospectus(es) (defined
+below), is herein called the “Prospectus.”
+
+ 
+
+Any reference herein to the Registration Statement, any Prospectus Supplement,
+Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and
+include the documents, if any, incorporated by reference therein (the
+“Incorporated Documents”), including, unless the context otherwise requires, the
+documents, if any, filed as exhibits to such Incorporated Documents. Any
+reference herein to the terms “amend,” “amendment” or “supplement” with respect
+to the Registration Statement, any Prospectus Supplement, the Prospectus or any
+Issuer Free Writing Prospectus shall be deemed to refer to and include the
+filing of any document under the Exchange Act on or after the most-recent
+effective date of the Registration Statement, or the date of the Prospectus
+Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may
+be, and incorporated therein by reference. For purposes of this Agreement, all
+references to the Registration Statement, the Prospectus or to any amendment or
+supplement thereto shall be deemed to include the most recent copy filed with
+the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval
+system, or if applicable, the Interactive Data Electronic Application system
+when used by the Commission (collectively, “EDGAR”).
+
+ 
+
+
+
+ -2- 
+
+ 
+
+ 
+
+2.             Placements. Each time that the Company wishes to issue and sell
+Placement Shares hereunder (each, a “Placement”), it will notify the Agent by
+email notice (or other method mutually agreed to by the parties) of the number
+of Placement Shares to be issued, the time period during which sales are
+requested to be made, any limitation on the number of Placement Shares that may
+be sold in any one day and any minimum price below which sales may not be made
+(a “Placement Notice”), the form of which is attached hereto as Schedule 1. The
+Placement Notice shall originate from any of the individuals from the Company
+set forth on Schedule 3 (with a copy to each of the other individuals from the
+Company listed on such schedule), and shall be addressed to each of the
+individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be
+amended from time to time. The Placement Notice shall be effective unless and
+until (i) the Agent declines in writing to accept the terms contained therein
+for any reason, in its sole discretion, which declination must occur within two
+(2) Business Days of the receipt of the Placement Notice, (ii) the entire amount
+of the Placement Shares thereunder have been sold, (iii) the Company amends,
+supersedes, suspends or terminates the Placement Notice or (iv) this Agreement
+has been terminated under the provisions of Section 12. The amount of any
+discount, commission or other compensation to be paid by the Company to the
+Agent in connection with the sale of the Placement Shares shall be calculated in
+accordance with the terms set forth in Schedule 2. It is expressly acknowledged
+and agreed that neither the Company nor the Agent will have any obligation
+whatsoever with respect to a Placement or any Placement Shares unless and until
+the Company delivers a Placement Notice to the Agent and the Agent does not
+decline such Placement Notice pursuant to the terms set forth above, and then
+only upon the terms specified therein and herein. In the event of a conflict
+between the terms of this Agreement and the terms of a Placement Notice, the
+terms of the Placement Notice will control.
+
+ 
+
+3.             Sale of Placement Shares by the Agent.
+
+ 
+
+(a)               Subject to the provisions of Section 5(a), the Agent, for the
+period specified in the Placement Notice, will use its commercially reasonable
+efforts consistent with its normal trading and sales practices and applicable
+state and federal laws, rules and regulations and the rules of the Nasdaq Stock
+Market, to sell the Placement Shares up to the amount specified, and otherwise
+in accordance with the terms of such Placement Notice. The Agent will provide
+written confirmation to the Company no later than the opening of the Trading Day
+(as defined below) immediately following the Trading Day on which it has made
+sales of Placement Shares hereunder setting forth the number of Placement Shares
+sold on such day, the compensation payable by the Company to the Agent pursuant
+to Section 2 with respect to such sales, and the Net Proceeds (as defined below)
+payable to the Company, with an itemization of the deductions made by the Agent
+(as set forth in Section 5(b)) from the gross proceeds that it receives from
+such sales. Subject to the terms of the Placement Notice, the Agent may sell
+Placement Shares by any method permitted by law deemed to be an “at the market
+offering” as defined in Rule 415(a)(4) of the Securities Act Regulations,
+including sales made directly on or through the Nasdaq Capital Market (the
+“Exchange”) or any other existing trading market for the Common Stock, in
+negotiated transactions at market prices prevailing at the time of sale or at
+prices related to such prevailing market prices and/or any other method
+permitted by law. “Trading Day” means any day on which Common Stock is traded on
+the Exchange.
+
+ 
+
+(b)               While a Placement Notice is in effect, the Agent shall not
+engage in (i) any short sale of any security of the Company, as defined in
+Regulation SHO or (ii) any market making bidding, stabilization or other trading
+activity with regard to the Common Stock or related derivative securities, in
+each case, if such activity would be prohibited under Regulation M or other
+anti-manipulation rules under the Securities Act.
+
+ 
+
+4.             Suspension of Sales. The Company or the Agent may, upon notice to
+the other party in writing (including by email correspondence to each of the
+individuals of the other party set forth on Schedule 3, if receipt of such
+correspondence is actually acknowledged by any of the individuals to whom the
+notice is sent, other than via auto-reply) or by telephone (confirmed
+immediately by verifiable facsimile transmission or email correspondence to each
+of the individuals of the other party set forth on Schedule 3), suspend any sale
+of Placement Shares (a “Suspension”); provided, however, that such Suspension
+shall not affect or impair any party’s obligations with respect to any Placement
+Shares sold hereunder prior to the receipt of such notice. While a Suspension is
+in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the
+delivery of certificates, opinions, or comfort letters to the Agent, shall be
+waived. Each of the parties agrees that no such notice under this Section 4
+shall be effective against any other party unless it is made to one of the
+individuals named on Schedule 3 hereto, as such Schedule may be amended from
+time to time.
+
+ 
+
+
+
+ -3- 
+
+ 
+
+ 
+
+5.             Sale and Delivery to the Agent; Settlement.
+
+ 
+
+(a)               Sale of Placement Shares. On the basis of the representations
+and warranties herein contained and subject to the terms and conditions herein
+set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and
+unless the sale of the Placement Shares described therein has been declined,
+suspended, or otherwise terminated in accordance with the terms of this
+Agreement, the Agent, for the period specified in the Placement Notice, will use
+its commercially reasonable efforts consistent with its normal trading and sales
+practices and applicable law and regulations to sell such Placement Shares up to
+the amount specified, and otherwise in accordance with the terms of such
+Placement Notice. The Company acknowledges and agrees that (i) there can be no
+assurance that the Agent will be successful in selling Placement Shares, (ii)
+the Agent will incur no liability or obligation to the Company or any other
+person or entity if it does not sell Placement Shares for any reason other than
+a failure by the Agent to use its commercially reasonable efforts consistent
+with its normal trading and sales practices and applicable law and regulations
+to sell such Placement Shares as required under this Agreement and (iii) the
+Agent shall be under no obligation to purchase Placement Shares on a principal
+basis pursuant to this Agreement, except as otherwise agreed by the Agent and
+the Company.
+
+ 
+
+(b)               Settlement of Placement Shares. Unless otherwise specified in
+the applicable Placement Notice, settlement for sales of Placement Shares will
+occur on the second (2nd) Trading Day (or such earlier day as is industry
+practice for regular-way trading) following the date on which such sales are
+made (each, a “Settlement Date”). The Agent shall notify the Company of each
+sale of Placement Shares no later than the opening of the Trading Day
+immediately following the Trading Day on which it has made sales of Placement
+Shares hereunder. The amount of proceeds to be delivered to the Company on a
+Settlement Date against receipt of the Placement Shares sold (the “Net
+Proceeds”) will be equal to the aggregate sales price received by the Agent,
+after deduction for (i) the Agent’s commission, discount or other compensation
+for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any
+transaction fees imposed by any Governmental Authority in respect of such sales.
+
+ 
+
+(c)               Delivery of Placement Shares. On or before each Settlement
+Date, the Company will, or will cause its transfer agent to, electronically
+transfer the Placement Shares being sold by crediting the Agent’s or its
+designee’s account (provided the Agent shall have given the Company written
+notice of such designee at least one Trading Day prior to the Settlement Date)
+at The Depository Trust Company through its Deposit and Withdrawal at Custodian
+System or by such other means of delivery as may be mutually agreed upon by the
+parties hereto which in all cases shall be freely tradable, transferable,
+registered shares in good deliverable form. On each Settlement Date, the Agent
+will deliver the related Net Proceeds in same day funds to an account designated
+by the Company on, or prior to, the Settlement Date. The Company agrees that if
+the Company, or its transfer agent (if applicable), defaults in its obligation
+to deliver Placement Shares on a Settlement Date, through no fault of the Agent,
+the Company agrees that in addition to and in no way limiting the rights and
+obligations set forth in Section 10(a) hereto, it will (i) hold the Agent
+harmless against any loss, claim, damage, or expense (including reasonable and
+documented legal fees and expenses), as incurred, arising out of or in
+connection with such default by the Company or its transfer agent (if
+applicable) and (ii) pay to the Agent (without duplication) any commission,
+discount, or other compensation to which it would otherwise have been entitled
+absent such default.
+
+ 
+
+
+
+ -4- 
+
+ 
+
+ 
+
+(d)               Denominations; Registration. Certificates for the Placement
+Shares, if any, shall be in such denominations and registered in such names as
+the Agent may request in writing at least one full Business Day (as defined
+below) before the Settlement Date. The certificates for the Placement Shares, if
+any, will be made available by the Company for examination and packaging by the
+Agent in The City of New York not later than noon (New York time) on the
+Business Day prior to the Settlement Date.
+
+ 
+
+(e)               Limitations on Offering Size. Under no circumstances shall the
+Company cause or request the offer or sale of any Placement Shares if, after
+giving effect to the sale of such Placement Shares, the aggregate gross sales
+proceeds of Placement Shares sold pursuant to this Agreement would exceed the
+lesser of (A) together with all sales of Placement Shares under this Agreement,
+the Maximum Amount and (B) the amount authorized from time to time to be issued
+and sold under this Agreement by the Company’s board of directors, a duly
+authorized committee thereof or a duly authorized executive officer, and
+notified to the Agent in writing. Under no circumstances shall the Company cause
+or request the offer or sale of any Placement Shares pursuant to this Agreement
+at a price lower than the minimum price authorized from time to time by the
+Company’s board of directors, a duly authorized committee thereof or a duly
+authorized executive officer. Further, under no circumstances shall the Company
+cause or permit the aggregate offering amount of Placement Shares sold pursuant
+to this Agreement to exceed the Maximum Amount.
+
+ 
+
+6.             Representations and Warranties of the Company. The Company
+represents and warrants to, and agrees with the Agent that as of the date of
+this Agreement and as of each Applicable Time (as defined below):
+
+ 
+
+(a)               Registration Statement and Prospectus. The Company and the
+transactions contemplated by this Agreement meet the requirements for and comply
+with the applicable conditions set forth in Form S-3 (including General
+Instructions I.A and I.B) under the Securities Act. The Registration Statement
+has been filed with the Commission and has been declared effective by the
+Commission under the Securities Act. The Prospectus Supplement will name the
+Agent as the agent in the section entitled “Plan of Distribution.” The Company
+has not received, and has no notice of, any order of the Commission preventing
+or suspending the use of the Registration Statement, or threatening or
+instituting proceedings for that purpose. The Registration Statement and the
+offer and sale of Placement Shares as contemplated hereby meet the requirements
+of Rule 415 under the Securities Act and comply in all material respects with
+said Rule. Any statutes, regulations, contracts or other documents that are
+required to be described in the Registration Statement or the Prospectus or to
+be filed as exhibits to the Registration Statement have been so described or
+filed. Copies of the Registration Statement, the Prospectus, and any such
+amendments or supplements and all documents incorporated by reference therein
+that were filed with the Commission on or prior to the date of this Agreement
+have been delivered, or are available through EDGAR, to the Agent and its
+counsel. The Company has not distributed and, prior to the later to occur of
+each Settlement Date and completion of the distribution of the Placement Shares,
+will not distribute any offering material in connection with the offering or
+sale of the Placement Shares other than the Registration Statement and the
+Prospectus and any Issuer Free Writing Prospectus (as defined below) to which
+the Agent has consented. The Common Stock is registered pursuant to Section
+12(b) of the Exchange Act and is currently listed on the Exchange under the
+trading symbol “OCGN.” Except as disclosed in the Registration Statement and the
+Prospectus, the Company has taken no action designed to, or likely to have the
+effect of, terminating the registration of the Common Stock under the Exchange
+Act, delisting the Common Stock from the Exchange, nor has the Company received
+any notification that the Commission or the Exchange is contemplating
+terminating such registration or listing. Except as disclosed in the
+Registration Statement and the Prospectus, to the Company’s knowledge, it is in
+compliance with all applicable listing requirements of the Exchange.
+
+ 
+
+
+
+ -5- 
+
+ 
+
+ 
+
+(b)               No Misstatement or Omission. The Registration Statement, when
+it became or becomes effective, and the Prospectus, and any amendment or
+supplement thereto, on the date of such Prospectus or amendment or supplement,
+conformed and will conform in all material respects with the requirements of the
+Securities Act. At each Settlement Date, the Registration Statement and the
+Prospectus, as of such date, will conform in all material respects with the
+requirements of the Securities Act. The Registration Statement, when it became
+or becomes effective, did not, and will not, contain an untrue statement of a
+material fact or omit to state a material fact required to be stated therein or
+necessary to make the statements therein not misleading. The Prospectus and any
+amendment and supplement thereto, on the date thereof and at each Applicable
+Time (defined below), did not or will not include an untrue statement of a
+material fact or omit to state a material fact necessary to make the statements
+therein, in light of the circumstances under which they were made, not
+misleading. The documents incorporated by reference in the Prospectus or any
+Prospectus Supplement did not, and any further documents filed and incorporated
+by reference therein will not, when filed with the Commission, contain an untrue
+statement of a material fact or omit to state a material fact required to be
+stated in such document or necessary to make the statements in such document, in
+light of the circumstances under which they were made, not misleading. The
+foregoing shall not apply to statements in, or omissions from, any such document
+made in reliance upon, and in conformity with, information furnished to the
+Company by Agent specifically for use in the preparation thereof.
+
+ 
+
+(c)               Conformity with Securities Act and Exchange Act. The
+Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or
+any amendment or supplement thereto, and the documents incorporated by reference
+in the Registration Statement, the Prospectus or any amendment or supplement
+thereto, when such documents were or are filed with the Commission under the
+Securities Act or the Exchange Act or became or become effective under the
+Securities Act, as the case may be, conformed or will conform in all material
+respects with the requirements of the Securities Act and the Exchange Act, as
+applicable.
+
+ 
+
+(d)               Financial Information. The consolidated financial statements
+of the Company included or incorporated by reference in the Registration
+Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any,
+together with the related notes and schedules, present fairly, in all material
+respects, the consolidated financial position of the Company and the
+Subsidiaries (as defined below) as of the dates indicated and the consolidated
+results of operations, cash flows and changes in stockholders’ equity of the
+Company for the periods specified and have been prepared in compliance with the
+requirements of the Securities Act and Exchange Act and in conformity with GAAP
+(as defined below) applied on a consistent basis during the periods involved
+(except for such adjustments to accounting standards and practices as are noted
+therein and except in the case of unaudited financial statements to the extent
+they may exclude footnotes or may be condensed or summary statements); the other
+financial and statistical data with respect to the Company and the Subsidiaries
+(as defined below) contained or incorporated by reference in the Registration
+Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, are
+accurately and fairly presented in all material respects and prepared on a basis
+consistent with the financial statements and books and records of the Company;
+there are no financial statements (historical or pro forma) that are required to
+be included or incorporated by reference in the Registration Statement, or the
+Prospectus that are not included or incorporated by reference as required; the
+Company and the Subsidiaries (as defined below) do not have any material
+liabilities or obligations, direct or contingent (including any off-balance
+sheet obligations), not described in the Registration Statement (excluding the
+exhibits thereto), and the Prospectus; and all disclosures contained or
+incorporated by reference in the Registration Statement, the Prospectus and the
+Issuer Free Writing Prospectuses, if any, regarding “non-GAAP financial
+measures” (as such term is defined by the rules and regulations of the
+Commission) comply in all material respects with Regulation G of the Exchange
+Act and Item 10 of Regulation S-K under the Securities Act, to the extent
+applicable. The interactive data in eXtensible Business Reporting Language
+included or incorporated by reference in the Registration Statement and the
+Prospectus fairly presents the information called for in all material respects
+and has been prepared in accordance with the Commission’s rules and guidelines
+applicable thereto.
+
+ 
+
+
+
+ -6- 
+
+ 
+
+ 
+
+(e)               Conformity with EDGAR Filing. The Prospectus delivered to the
+Agent for use in connection with the sale of the Placement Shares pursuant to
+this Agreement will be identical to the versions of the Prospectus created to be
+transmitted to the Commission for filing via EDGAR, except to the extent
+permitted by Regulation S-T.
+
+ 
+
+(f)                Organization. The Company and each of its Subsidiaries (as
+defined below) are duly organized, validly existing as a corporation and in good
+standing under the laws of their respective jurisdictions of organization. The
+Company and each of its Subsidiaries are duly licensed or qualified as a foreign
+corporation for transaction of business and in good standing under the laws of
+each other jurisdiction in which their respective ownership or lease of property
+or the conduct of their respective businesses requires such license or
+qualification, and have all corporate power and authority necessary to own or
+hold their respective properties and to conduct their respective businesses as
+described in the Registration Statement and the Prospectus, except where the
+failure to be so qualified or in good standing or have such power or authority
+would not, individually or in the aggregate, have a material adverse effect or
+would reasonably be expected to have a material adverse effect on or affecting
+the assets, business, operations, earnings, properties, condition (financial or
+otherwise), prospects, stockholders’ equity or results of operations of the
+Company and the Subsidiaries taken as a whole, or prevent or materially
+interfere with consummation of the transactions contemplated hereby (a “Material
+Adverse Effect”).
+
+ 
+
+(g)               Subsidiaries. The subsidiaries set forth on Schedule 4
+(collectively, the “Subsidiaries”), are the Company’s only significant
+subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated
+by the Commission). Except as set forth in the Registration Statement and in the
+Prospectus, the Company owns, directly or indirectly, all of the equity
+interests of the Subsidiaries free and clear of any lien, charge, security
+interest, encumbrance, right of first refusal or other restriction, and all the
+equity interests of the Subsidiaries are validly issued and are fully paid,
+nonassessable and free of preemptive and similar rights. No Subsidiary is
+currently prohibited, directly or indirectly, from paying any dividends to the
+Company, from making any other distribution on such Subsidiary’s capital stock,
+from repaying to the Company any loans or advances to such Subsidiary from the
+Company or from transferring any of such Subsidiary’s property or assets to the
+Company or any other Subsidiary of the Company.
+
+ 
+
+
+
+ -7- 
+
+ 
+
+ 
+
+(h)               No Violation or Default. Neither the Company nor any of its
+Subsidiaries is (i) in violation of its charter or by-laws or similar
+organizational documents; (ii) in default, and no event has occurred that, with
+notice or lapse of time or both, would constitute such a default, in the due
+performance or observance of any term, covenant or condition contained in any
+indenture, mortgage, deed of trust, loan agreement or other agreement or
+instrument to which the Company or any of its Subsidiaries is a party or by
+which the Company or any of its Subsidiaries is bound or to which any of the
+property or assets of the Company or any of its Subsidiaries are subject; or
+(iii) in violation of any law or statute or any judgment, order, rule or
+regulation of any Governmental Authority, except, in the case of each of clauses
+(ii) and (iii) above, for any such violation or default that would not,
+individually or in the aggregate, reasonably be expected to have a Material
+Adverse Effect. To the Company’s knowledge, no other party under any material
+contract or other agreement to which it or any of its Subsidiaries is a party is
+in default in any respect thereunder where such default would have a Material
+Adverse Effect.
+
+ 
+
+(i)                 No Material Adverse Change. Subsequent to the respective
+dates as of which information is given in the Registration Statement, the
+Prospectus and the Free Writing Prospectuses, if any (including any document
+deemed incorporated by reference therein), there has not been (i) any Material
+Adverse Effect or the occurrence of any development that the Company reasonably
+expects will result in a Material Adverse Effect, (ii) any transaction which is
+material to the Company and the Subsidiaries taken as a whole, (iii) any
+obligation or liability, direct or contingent (including any off-balance sheet
+obligations), incurred by the Company or any Subsidiary, which is material to
+the Company and the Subsidiaries taken as a whole, (iv) any material change in
+the capital stock or outstanding long-term indebtedness of the Company or any of
+its Subsidiaries (other than as a result of (a) the sale of Placement Shares,
+(b) the issuance or vesting of equity awards under the Company’s existing equity
+incentive or stock option plans or (c) the issuance of shares upon the exercise
+or conversion of securities exercisable for, or convertible into, shares of
+Common Stock outstanding on the date hereof) or (v) any dividend or distribution
+of any kind declared, paid or made on the capital stock of the Company or any
+Subsidiary, other than in each case above in the ordinary course of business or
+as otherwise disclosed in the Registration Statement or Prospectus (including
+any document deemed incorporated by reference therein).
+
+ 
+
+(j)                 Capitalization. The issued and outstanding shares of capital
+stock of the Company have been validly issued, are fully paid and nonassessable
+and, other than as disclosed in the Registration Statement or the Prospectus,
+are not subject to any preemptive rights, rights of first refusal or similar
+rights. The Company has an authorized, issued and outstanding capitalization as
+set forth in the Registration Statement and the Prospectus as of the dates
+referred to therein (other than the grant of additional options under the
+Company’s existing equity incentive or stock option plans, or changes in the
+number of outstanding shares of Common Stock of the Company due to the issuance
+of shares upon the exercise or conversion of securities exercisable for, or
+convertible into, Common Stock outstanding on the date hereof) and such
+authorized capital stock conforms in all material respects to the description
+thereof set forth in the Registration Statement and the Prospectus. The
+description of the securities of the Company in the Registration Statement and
+the Prospectus is complete and accurate in all material respects. Except as
+disclosed in or contemplated by the Registration Statement or the Prospectus, as
+of the date referred to therein, the Company does not have outstanding any
+options to purchase, or any rights or warrants to subscribe for, or any
+securities or obligations convertible into, or exchangeable for, or any
+contracts or commitments to issue or sell, any shares of capital stock or other
+securities.
+
+ 
+
+
+
+ -8- 
+
+ 
+
+ 
+
+(k)               Authorization; Enforceability. The Company has full legal
+right, power and authority to enter into this Agreement and perform the
+transactions contemplated hereby. This Agreement has been duly authorized,
+executed and delivered by the Company and is a legal, valid and binding
+agreement of the Company enforceable in accordance with its terms, except to the
+extent that enforceability may be limited by (i) bankruptcy, insolvency,
+reorganization, moratorium or similar laws affecting creditors’ rights generally
+and by general equitable principles or (ii) the indemnification and contribution
+provisions of Section 10 hereof may be limited by federal or state securities
+laws and public policy considerations in respect thereof.
+
+ 
+
+(l)                 Authorization of Placement Shares. The Placement Shares,
+when issued and delivered pursuant to the terms approved by the board of
+directors of the Company or a duly authorized committee thereof, or a duly
+authorized executive officer, against payment therefor as provided herein, will
+be duly and validly authorized and issued and fully paid and nonassessable, free
+and clear of any pledge, lien, encumbrance, security interest or other claim,
+including any statutory or contractual preemptive rights, resale rights, rights
+of first refusal or other similar rights, and will be registered pursuant to
+Section 12 of the Exchange Act. The Placement Shares, when issued, will conform
+in all material respects to the description thereof set forth in or incorporated
+into the Prospectus.
+
+ 
+
+(m)             No Consents Required. No consent, approval, authorization,
+order, registration or qualification of or with any Governmental Authority is
+required for the execution, delivery and performance by the Company of this
+Agreement, the issuance and sale by the Company of the Placement Shares as
+contemplated by this Agreement, except for such consents, approvals,
+authorizations, orders and registrations or qualifications as may be required
+under applicable state securities laws or by the by-laws and rules of the
+Financial Industry Regulatory Authority (“FINRA”) or the Exchange in connection
+with the sale of the Placement Shares by the Agent.
+
+ 
+
+(n)               No Preferential Rights. Except as set forth in the
+Registration Statement and the Prospectus, (i) no person, as such term is
+defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act
+(each, a “Person”), has the right, contractual or otherwise, to cause the
+Company to issue or sell to such Person any Common Stock or shares of any other
+capital stock or other securities of the Company (other than outstanding options
+or warrants to purchase Common Stock or options or other equity securities that
+may be granted from time to time under the Company's equity incentive plans
+which are disclosed in the Registration Statement and Prospectus), (ii) no
+Person has any preemptive rights, resale rights, rights of first refusal, rights
+of co-sale, or any other rights (whether pursuant to a “poison pill” provision
+or otherwise) to purchase any Common Stock or shares of any other capital stock
+or other securities of the Company, (iii)  no Person has the right to act as an
+underwriter or as a financial advisor to the Company in connection with the
+offer and sale of the Placement Shares, and (iv) no Person has the right,
+contractual or otherwise, to require the Company to register under the
+Securities Act any Common Stock or shares of any other capital stock or other
+securities of the Company, or to include any such shares or other securities in
+the Registration Statement or the offering contemplated thereby, whether as a
+result of the filing or effectiveness of the Registration Statement or the sale
+of the Placement Shares as contemplated thereby or otherwise.
+
+ 
+
+
+
+ -9- 
+
+ 
+
+ 
+
+(o)               Independent Public Accounting Firm. Ernst & Young LLP (the
+“Accountant”), whose report on the consolidated financial statements of the
+Company is filed with the Commission as part of the Company’s most recent Annual
+Report on Form 10-K filed with the Commission and incorporated by reference into
+the Registration Statement and the Prospectus, are and, during the periods
+covered by their report, were an independent registered public accounting firm
+within the meaning of the Securities Act and the Public Company Accounting
+Oversight Board (United States). To the Company’s knowledge, the Accountant is
+not in violation of the auditor independence requirements of the Sarbanes-Oxley
+Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.
+
+ 
+
+(p)               Enforceability of Agreements. All agreements between the
+Company and third parties expressly referenced in the Prospectus, other than
+such agreements that have expired by their terms or whose termination is
+disclosed in the Registration Statement and the Prospectus, are legal, valid and
+binding obligations of the Company enforceable in accordance with their
+respective terms, except to the extent that (i) enforceability may be limited by
+bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
+creditors’ rights generally and by general equitable principles and (ii) the
+indemnification provisions of certain agreements may be limited by federal or
+state securities laws or public policy considerations in respect thereof, except
+for any unenforceability that, individually or in the aggregate, would not
+reasonably be expected to have a Material Adverse Effect.
+
+ 
+
+(q)               No Litigation. Except as set forth in the Registration
+Statement or the Prospectus, there are no actions, suits or proceedings by or
+before any Governmental Authority pending, nor, to the Company’s knowledge, any
+audits or investigations by or before any Governmental Authority to which the
+Company or a Subsidiary is a party or to which any property of the Company or
+any of its Subsidiaries is the subject that, individually or in the aggregate,
+would have a Material Adverse Effect and, to the Company’s knowledge, no such
+actions, suits, proceedings, audits or investigations are threatened or
+contemplated by any Governmental Authority or threatened by others; and
+(i) there are no current or pending audits or investigations, actions, suits or
+proceedings by or before any Governmental Authority that are required under the
+Securities Act to be described in the Prospectus that are not so described; and
+(ii) there are no contracts or other documents that are required under the
+Securities Act to be filed as exhibits to the Registration Statement that are
+not so filed.
+
+ 
+
+
+
+ -10- 
+
+ 
+
+ 
+
+(r)                Consents and Permits. Except as disclosed in the Registration
+Statement and the Prospectus, the Company and its Subsidiaries have made all
+filings, applications and submissions required by, possesses and is operating in
+compliance with, all approvals, licenses, certificates, certifications,
+clearances, consents, grants, exemptions, marks, notifications, orders, permits
+and other authorizations issued by, the appropriate federal, state or foreign
+Governmental Authority (including, without limitation, the United States Food
+and Drug Administration (the “FDA”), the United States Drug Enforcement
+Administration or any other foreign, federal, state, provincial, court or local
+government or regulatory authorities including self-regulatory organizations
+engaged in the regulation of clinical trials, pharmaceuticals, biologics or
+biohazardous substances or materials) necessary for the ownership or lease of
+their respective properties or to conduct its businesses as described in the
+Registration Statement and the Prospectus (collectively, “Permits”), except for
+such Permits the failure of which to possess, obtain or make the same would not
+reasonably be expected to have a Material Adverse Effect; the Company and its
+Subsidiaries are in compliance with the terms and conditions of all such
+Permits, except where the failure to be in compliance would not reasonably be
+expected to have a Material Adverse Effect; all of the Permits are valid and in
+full force and effect, except where any invalidity, individually or in the
+aggregate, would not be reasonably expected to have a Material Adverse Effect;
+and neither the Company nor any of its Subsidiaries has received any written
+notice relating to the limitation, revocation, cancellation, suspension,
+modification or non-renewal of any such Permit which, singly or in the
+aggregate, if the subject of an unfavorable decision, ruling or finding, would
+reasonably be expected to have a Material Adverse Effect, or has any reason to
+believe that any such license, certificate, permit or authorization will not be
+renewed in the ordinary course. To the extent required by applicable laws and
+regulations of the FDA, the Company or the applicable Subsidiary has submitted
+to the FDA an Investigational New Drug Application or amendment or supplement
+thereto for each clinical trial it has conducted or sponsored or is conducting
+or sponsoring; all such submissions were in material compliance with applicable
+laws and rules and regulations when submitted and no material deficiencies have
+been asserted by the FDA with respect to any such submissions.
+
+ 
+
+(s)                Regulatory Filings. Except as disclosed in the Registration
+Statement and the Prospectus, neither the Company nor any of its Subsidiaries
+has failed to file with the applicable Governmental Authorities (including,
+without limitation, the FDA, or any foreign, federal, state, provincial or local
+Governmental Authority performing functions similar to those performed by the
+FDA) any required filing, declaration, listing, registration, report or
+submission, except for such failures that, individually or in the aggregate,
+would not reasonably be expected to have a Material Adverse Effect; except as
+disclosed in the Registration Statement and the Prospectus, all such filings,
+declarations, listings, registrations, reports or submissions were in compliance
+with applicable laws when filed and no deficiencies have been asserted by any
+applicable regulatory authority with respect to any such filings, declarations,
+listings, registrations, reports or submissions, except for any deficiencies
+that, individually or in the aggregate, would not reasonably be expected to have
+a Material Adverse Effect. The Company has operated and currently is, in all
+material respects, in compliance with the United States Federal Food, Drug, and
+Cosmetic Act, all applicable rules and regulations of the FDA and other federal,
+state, local and foreign Governmental Authority exercising comparable authority.
+The Company has no knowledge of any studies, tests or trials not described in
+the Prospectus the results of which reasonably call into question in any
+material respect the results of the studies, tests and trials described in the
+Prospectus.
+
+ 
+
+
+
+ -11- 
+
+ 
+
+ 
+
+(t)                 Intellectual Property. The Company and its Subsidiaries own,
+possess, license or have other rights to use, or can acquire on reasonable terms
+a license or other rights to use, all foreign and domestic patents, patent
+applications, trade and service marks, trade and service mark registrations,
+trade names, copyrights, licenses, inventions, trade secrets, technology,
+Internet domain names, know-how and other intellectual property (collectively,
+the “Intellectual Property”), necessary for the conduct of their respective
+businesses as now conducted except to the extent that the failure to own,
+possess, license or otherwise hold adequate rights to use such Intellectual
+Property would not, individually or in the aggregate, have a Material Adverse
+Effect. Except as disclosed in the Registration Statement and the Prospectus (i)
+to the Company’s knowledge, there are no rights of third parties to any such
+Intellectual Property owned by the Company and its Subsidiaries; (ii) to the
+Company’s knowledge, there is no infringement by third parties of any such
+Intellectual Property; (iii) there is no pending or, to the Company’s knowledge,
+threatened action, suit, proceeding or claim by others challenging the Company’s
+and its Subsidiaries’ rights in or to any such Intellectual Property, and the
+Company is unaware of any facts which could form a reasonable basis for any such
+action, suit, proceeding or claim; (iv) there is no pending or, to the Company’s
+knowledge, threatened action, suit, proceeding or claim by others challenging
+the validity or scope of any such Intellectual Property; (v) there is no pending
+or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
+others that the Company and its Subsidiaries infringe or otherwise violate any
+patent, trademark, copyright, trade secret or other proprietary rights of
+others; (vi) to the Company’s knowledge, there is no third-party U.S. patent or
+published U.S. patent application which contains claims for which an
+Interference Proceeding (as defined in 35 U.S.C. § 135) has been commenced
+against any patent or patent application described in the Prospectus as being
+owned by or licensed to the Company; and (vii) the Company and its Subsidiaries
+have complied with the terms of each agreement pursuant to which Intellectual
+Property has been licensed to the Company or such Subsidiary, and all such
+agreements are in full force and effect, except, in the case of any of clauses
+(i)-(vii) above, for any such infringement by third parties or any such pending
+or threatened suit, action, proceeding or claim as would not, individually or in
+the aggregate, reasonably be expected to result in a Material Adverse Effect.
+
+ 
+
+(u)               Clinical Studies. The preclinical studies and tests and
+clinical trials described in the Prospectus being conducted by or on behalf of
+the Company were, and, if still pending, are being conducted in all material
+respects in accordance with the experimental protocols, procedures and controls
+pursuant to, where applicable, accepted professional and scientific standards
+for products or product candidates comparable to those being developed by the
+Company; the descriptions of such studies, tests and trials, and the results
+thereof, contained in the Prospectus are accurate and complete in all material
+respects; the Company is not aware of any tests, studies or trials not described
+in the Prospectus, the results of which reasonably call into question the
+results of the tests, studies and trials described in the Prospectus; and the
+Company has not received any written notice or correspondence from the FDA or
+any foreign, state or local Governmental Authority exercising comparable
+authority or any institutional review board or comparable authority requiring
+the termination, suspension, clinical hold or material modification of any
+tests, studies or trials that are described or referred to in the Registration
+Statement and the Prospectus.
+
+ 
+
+(v)               Market Capitalization. At the time the Registration Statement
+was originally declared effective, and at the time the Company’s most recent
+Annual Report on Form 10-K was filed with the Commission, the Company met the
+then-applicable requirements for the use of Form S-3 under the Securities Act,
+including, but not limited to, General Instruction I.B.6 of Form S-3. The
+aggregate market value of the outstanding voting and non-voting common equity
+(as defined in Securities Act Rule 405) of the Company held by persons other
+than affiliates of the Company (pursuant to Securities Act Rule 144, those that
+directly, or indirectly through one or more intermediaries, control, or are
+controlled by, or are under common control with, the Company)  (the
+“Non-Affiliate Shares”), was equal to approximately $48.5 million  (calculated
+by multiplying (x) the highest price at which the common equity of the Company
+closed on the Exchange within 60 days of the date of this Agreement times (y)
+the number of Non-Affiliate Shares). The Company is not a shell company (as
+defined in Rule 405 under the Securities Act) and has not been a shell company
+for at least 12 calendar months previously and if it has been a shell company at
+any time previously, has filed current Form 10 information (as defined in
+Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months
+previously reflecting its status as an entity that is not a shell company.
+
+ 
+
+
+
+ -12- 
+
+ 
+
+ 
+
+(w)             No Material Defaults. Neither the Company nor any of the
+Subsidiaries has defaulted on any installment on indebtedness for borrowed money
+or on any rental on one or more long-term leases, which defaults, individually
+or in the aggregate, would have a Material Adverse Effect. The Company has not
+filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the
+filing of its last Annual Report on Form 10-K, indicating that it (i) has failed
+to pay any dividend or sinking fund installment on preferred stock or (ii) has
+defaulted on any installment on indebtedness for borrowed money or on any rental
+on one or more long-term leases, which defaults, individually or in the
+aggregate, would reasonably be expected to have a Material Adverse Effect.
+
+ 
+
+(x)               Certain Market Activities. Neither the Company, nor any of the
+Subsidiaries, nor, to the Company’s knowledge, any of their respective
+directors, officers or controlling persons has taken, directly or indirectly,
+any action designed, or that has constituted or might reasonably be expected to
+cause or result in, under the Exchange Act or otherwise, the stabilization or
+manipulation of the price of any security of the Company to facilitate the sale
+or resale of the Placement Shares.
+
+ 
+
+(y)               Broker/Dealer Relationships. Neither the Company nor any of
+the Subsidiaries (i) is required to register as a “broker” or “dealer” in
+accordance with the provisions of the Exchange Act or (ii) directly or
+indirectly through one or more intermediaries, controls or is a “person
+associated with a member” or “associated person of a member” (within the meaning
+set forth in the FINRA Manual).
+
+ 
+
+(z)               No Reliance. The Company has not relied upon the Agent or
+legal counsel for the Agent for any legal, tax or accounting advice in
+connection with the offering and sale of the Placement Shares.
+
+ 
+
+(aa)            Taxes. The Company and each of its Subsidiaries have filed all
+federal, state, local and foreign tax returns which have been required to be
+filed and paid all taxes shown thereon through the date hereof, to the extent
+that such taxes have become due and are not being contested in good faith,
+except where the failure to so file or pay would not reasonably be expected to
+have a Material Adverse Effect. Except as otherwise disclosed in or contemplated
+by the Registration Statement or the Prospectus, no tax deficiency has been
+determined adversely to the Company or any of its Subsidiaries which has had, or
+would reasonably be expected to have, individually or in the aggregate, a
+Material Adverse Effect. The Company has no knowledge of any federal, state or
+other governmental tax deficiency, penalty or assessment which has been or might
+be asserted or threatened against it which would have a Material Adverse Effect.
+
+ 
+
+
+
+ -13- 
+
+ 
+
+ 
+
+(bb)           Title to Real and Personal Property. Except as set forth in the
+Registration Statement or the Prospectus, the Company and its Subsidiaries have
+good and marketable title in fee simple to all items of real property owned by
+them, good and valid title to all personal property (other than Intellectual
+Property, which is addressed in Section 6(t) above), described in the
+Registration Statement or Prospectus as being owned by them, in each case free
+and clear of all liens, encumbrances and claims, except those matters that (i)
+do not materially interfere with the use made and proposed to be made of such
+property by the Company and any of its Subsidiaries or (ii) would not,
+individually or in the aggregate, reasonably be expected to have a Material
+Adverse Effect. Any real or personal property described in the Registration
+Statement or Prospectus as being leased by the Company and any of its
+Subsidiaries is held by them under valid, existing and enforceable leases,
+except those that (A) do not materially interfere with the use made or proposed
+to be made of such property by the Company or any of its Subsidiaries or (B)
+would not be reasonably expected, individually or in the aggregate, to have a
+Material Adverse Effect. Each of the properties of the Company and its
+Subsidiaries complies with all applicable codes, laws and regulations
+(including, without limitation, building and zoning codes, laws and regulations
+and laws relating to access to such properties), except if and to the extent
+disclosed in the Registration Statement or Prospectus or except for such
+failures to comply that would not, individually or in the aggregate, reasonably
+be expected to interfere in any material respect with the use made and proposed
+to be made of such property by the Company and its Subsidiaries or otherwise
+have a Material Adverse Effect. None of the Company or its subsidiaries has
+received from any Governmental Authorities any notice of any condemnation of, or
+zoning change affecting, the properties of the Company and its Subsidiaries, and
+the Company knows of no such condemnation or zoning change which is threatened,
+except for such that would not reasonably be expected to interfere in any
+material respect with the use made and proposed to be made of such property by
+the Company and its Subsidiaries or otherwise have a Material Adverse Effect,
+individually or in the aggregate.
+
+ 
+
+(cc)            Environmental Laws. Except as set forth in the Registration
+Statement or the Prospectus, the Company and its Subsidiaries (i) are in
+compliance with any and all applicable federal, state, local and foreign laws,
+rules, regulations, decisions and orders relating to the protection of human
+health and safety, the environment or hazardous or toxic substances or wastes,
+pollutants or contaminants (collectively, “Environmental Laws”); (ii) have
+received and are in compliance with all permits, licenses or other approvals
+required of them under applicable Environmental Laws to conduct their respective
+businesses as described in the Registration Statement and the Prospectus; and
+(iii) have not received notice of any actual or potential liability for the
+investigation or remediation of any disposal or release of hazardous or toxic
+substances or wastes, pollutants or contaminants, except, in the case of any of
+clauses (i), (ii) or (iii) above, for any such failure to comply or failure to
+receive required permits, licenses, other approvals or liability as would not,
+individually or in the aggregate, reasonably be expected to have a Material
+Adverse Effect.
+
+ 
+
+
+
+ -14- 
+
+ 
+
+ 
+
+(dd)           Disclosure Controls. The Company and each of its Subsidiaries, on
+a consolidated basis, maintain systems of internal accounting controls that are
+designed to provide reasonable assurance that (i) transactions are executed in
+accordance with management’s general or specific authorizations;
+(ii) transactions are recorded as necessary to permit preparation of financial
+statements in conformity with generally accepted accounting principles and to
+maintain asset accountability; (iii) access to assets is permitted only in
+accordance with management’s general or specific authorization; and (iv) the
+recorded accountability for assets is compared with the existing assets at
+reasonable intervals and appropriate action is taken with respect to any
+differences. As of the end of the Company’s most recently completed fiscal year,
+the Company’s internal control over financial reporting was effective and the
+Company is not aware of any material weaknesses in its internal control over
+financial reporting (other than as set forth in the Prospectus). Since the date
+of the latest audited financial statements of the Company included in the
+Prospectus, there has been no change in the Company’s internal control over
+financial reporting that has materially affected, or is reasonably likely to
+materially affect, the Company’s internal control over financial reporting
+(other than as set forth in the Prospectus). The Company has established
+disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and
+15d-15) for the Company and designed such disclosure controls and procedures to
+provide reasonable assurance that material information relating to the Company
+and each of its Subsidiaries is made known to the certifying officers by others
+within those entities, particularly during the period in which the Company’s
+Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
+is being prepared. The Company’s certifying officers have evaluated the
+effectiveness of the Company’s disclosure controls and procedures as of a date
+within 90 days prior to the filing date of the Form 10-K for the fiscal year
+most recently ended (such date, the “Evaluation Date”). The Company presented in
+its Form 10-K for the fiscal year most recently ended the conclusions of the
+certifying officers about the effectiveness of the disclosure controls and
+procedures based on their evaluations as of the Evaluation Date and the
+disclosure controls and procedures are effective. Since the Evaluation Date,
+there have been no significant changes in the Company’s internal controls (as
+such term is defined in Item 307(b) of Regulation S-K under the Securities Act)
+or, to the Company’s knowledge, in other factors that could significantly affect
+the Company’s internal controls.
+
+ 
+
+(ee)            Sarbanes-Oxley. There is and has been no failure on the part of
+the Company or any of the Company’s directors or officers, in their capacities
+as such, to comply in all material respects with any applicable provisions of
+the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.
+Each of the principal executive officer and the principal financial officer of
+the Company (or each former principal executive officer of the Company and each
+former principal financial officer of the Company as applicable) has made all
+certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with
+respect to all reports, schedules, forms, statements and other documents
+required to be filed by it or furnished by it to the Commission. For purposes of
+the preceding sentence, “principal executive officer” and “principal financial
+officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.
+
+ 
+
+(ff)              Finder’s Fees. Neither the Company nor any of the Subsidiaries
+has incurred any liability for any finder’s fees, brokerage commissions or
+similar payments in connection with the transactions herein contemplated, except
+as may otherwise exist with respect to Agent pursuant to this Agreement.
+
+ 
+
+(gg)           Labor Disputes. No labor disturbance by or dispute with employees
+of the Company or any of its Subsidiaries exists or, to the knowledge of the
+Company, is threatened which would reasonably be expected to result in a
+Material Adverse Effect.
+
+ 
+
+(hh)           Investment Company Act. Neither the Company nor any of the
+Subsidiaries is or, after giving effect to the offering and sale of the
+Placement Shares, will be an “investment company” or an entity “controlled” by
+an “investment company,” as such terms are defined in the Investment Company Act
+of 1940, as amended (the “Investment Company Act”).
+
+ 
+
+
+
+ -15- 
+
+ 
+
+ 
+
+(ii)              Operations. The operations of the Company and its Subsidiaries
+are and have been conducted at all times in compliance with applicable financial
+record keeping and reporting requirements of the Currency and Foreign
+Transactions Reporting Act of 1970, as amended, the money laundering statutes of
+all jurisdictions to which the Company or its Subsidiaries are subject, the
+rules and regulations thereunder and any related or similar rules, regulations
+or guidelines, issued, administered or enforced by any Governmental Authority
+(collectively, the “Money Laundering Laws”); and no action, suit or proceeding
+by or before any Governmental Authority involving the Company or any of its
+Subsidiaries with respect to the Money Laundering Laws is pending or, to the
+knowledge of the Company, threatened.
+
+ 
+
+(jj)              Off-Balance Sheet Arrangements. There are no transactions,
+arrangements and other relationships between and/or among the Company, and/or,
+to the Company’s knowledge, any of its affiliates and any unconsolidated entity,
+including, but not limited to, any structural finance, special purpose or
+limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could
+reasonably be expected to affect materially the Company’s liquidity or the
+availability of or requirements for its capital resources, including those
+Off-Balance Sheet Transactions described in the Commission’s Statement about
+Management’s Discussion and Analysis of Financial Conditions and Results of
+Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in
+the Prospectus which have not been described as required.
+
+ 
+
+(kk)           Underwriter Agreements. Except as disclosed in the Registration
+Statement and the Prospectus, the Company is not a party to any agreement with
+an agent or underwriter for any other “at the market” or continuous equity
+transaction.
+
+ 
+
+(ll)              ERISA. To the knowledge of the Company, each material employee
+benefit plan, within the meaning of Section 3(3) of the Employee Retirement
+Income Security Act of 1974, as amended (“ERISA”), that is maintained,
+administered or contributed to by the Company or any of its affiliates for
+employees or former employees of the Company and any of its Subsidiaries has
+been maintained in material compliance with its terms and the requirements of
+any applicable statutes, orders, rules and regulations, including but not
+limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”);
+no prohibited transaction, within the meaning of Section 406 of ERISA or Section
+4975 of the Code, has occurred which would result in a material liability to the
+Company with respect to any such plan excluding transactions effected pursuant
+to a statutory or administrative exemption; and for each such plan that is
+subject to the funding rules of Section 412 of the Code or Section 302 of ERISA,
+no “accumulated funding deficiency” as defined in Section 412 of the Code has
+been incurred, whether or not waived, and the fair market value of the assets of
+each such plan (excluding for these purposes accrued but unpaid contributions)
+exceeds the present value of all benefits accrued under such plan determined
+using reasonable actuarial assumptions.
+
+ 
+
+(mm)      Forward-Looking Statements. No forward-looking statement (within the
+meaning of Section 27A of the Securities Act and Section 21E of the Exchange
+Act) (a “Forward-Looking Statement”) contained in the Registration Statement and
+the Prospectus has been made or reaffirmed without a reasonable basis or has
+been disclosed other than in good faith.
+
+ 
+
+
+
+ -16- 
+
+ 
+
+ 
+
+(nn)           Agent Purchases. The Company acknowledges and agrees that Agent
+has informed the Company that the Agent may, to the extent permitted under the
+Securities Act and the Exchange Act, purchase and sell Common Stock for its own
+account while this Agreement is in effect, provided, that (i) no such purchase
+or sales shall take place while a Placement Notice is in effect (except to the
+extent the Agent may engage in sales of Placement Shares purchased or deemed
+purchased from the Company as a “riskless principal” or in a similar capacity)
+and (ii) the Company shall not be deemed to have authorized or consented to any
+such purchases or sales by the Agent.
+
+ 
+
+(oo)           Margin Rules. Neither the issuance, sale and delivery of the
+Placement Shares nor the application of the proceeds thereof by the Company as
+described in the Registration Statement and the Prospectus will violate
+Regulation T, U or X of the Board of Governors of the Federal Reserve System or
+any other regulation of such Board of Governors.
+
+ 
+
+(pp)           Insurance. The Company and each of its Subsidiaries carry, or are
+covered by, insurance in such amounts and covering such risks as the Company and
+each of its Subsidiaries reasonably believe are adequate for the conduct of
+their properties and as is customary for companies of similar size, engaged in
+similar businesses in similar industries.
+
+ 
+
+(qq)           No Improper Practices. (i) Neither the Company nor the
+Subsidiaries, nor, to the Company’s knowledge, any director, officer, or
+employee of the Company or any Subsidiary nor, to the Company’s knowledge, any
+agent, affiliate or other person acting on behalf of the Company or any
+Subsidiary has, in the past five years, made any unlawful contributions to any
+candidate for any political office (or failed fully to disclose any contribution
+in violation of applicable law) or made any contribution or other payment to any
+official of, or candidate for, any federal, state, municipal, or foreign office
+or other person charged with similar public or quasi-public duty in violation of
+any applicable law or of the character required to be disclosed in the
+Prospectus; (ii) no relationship, direct or indirect, exists between or among
+the Company or any Subsidiary or any affiliate of any of them, on the one hand,
+and the directors, officers and stockholders of the Company or any Subsidiary,
+on the other hand, that is required by the Securities Act to be described in the
+Registration Statement and the Prospectus that is not so described; (iii) no
+relationship, direct or indirect, exists between or among the Company or any
+Subsidiary or any affiliate of them, on the one hand, and the directors,
+officers, or stockholders of the Company or any Subsidiary, on the other hand,
+that is required by the rules of FINRA to be described in the Registration
+Statement and the Prospectus that is not so described; (iv) except as described
+in the Registration Statement and the Prospectus, there are no material
+outstanding loans or advances or material guarantees of indebtedness by the
+Company or any Subsidiary to or for the benefit of any of their respective
+officers or directors or any of the members of the families of any of them; and
+(v) the Company has not offered, or caused any placement agent to offer, Common
+Stock to any person with the intent to influence unlawfully (A) a customer or
+supplier of the Company or any Subsidiary to alter the customer’s or supplier’s
+level or type of business with the Company or any Subsidiary or (B) a trade
+journalist or publication to write or publish favorable information about the
+Company or any Subsidiary or any of their respective products or services, and,
+(vi) neither the Company nor any Subsidiary nor, to the Company’s knowledge, any
+director, officer or employee of the Company or any Subsidiary nor, to the
+Company’s knowledge, any agent, affiliate or other person acting on behalf of
+the Company or any Subsidiary has (A) violated or is in violation of any
+applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as
+amended, or any other applicable anti-bribery or anti-corruption law
+(collectively, “Anti-Corruption Laws”), (B) promised, offered, provided,
+attempted to provide or authorized the provision of anything of value, directly
+or indirectly, to any person for the purpose of obtaining or retaining business,
+influencing any act or decision of the recipient, or securing any improper
+advantage; or (C) made any payment of funds of the Company or any Subsidiary or
+received or retained any funds in violation of any Anti-Corruption Laws.
+
+ 
+
+
+
+ -17- 
+
+ 
+
+ 
+
+(rr)              Status Under the Securities Act. The Company was not and is
+not an ineligible issuer as defined in Rule 405 under the Securities Act at the
+times specified in Rules 164 and 433 under the Securities Act in connection with
+the offering of the Placement Shares.
+
+ 
+
+(ss)             No Misstatement or Omission in an Issuer Free Writing
+Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of
+each Applicable Time (as defined in Section 23 below), did not, does not and
+will not, through the completion of the Placement for which such Issuer Free
+Writing Prospectus is used or deemed used, include any information that
+conflicted, conflicts or will conflict with the information contained in the
+Registration Statement or the Prospectus, including any incorporated document
+deemed to be a part thereof that has not been superseded or modified. The
+foregoing sentence does not apply to statements in or omissions from any Issuer
+Free Writing Prospectus based upon and in conformity with written information
+furnished to the Company by the Agent specifically for use therein.
+
+ 
+
+(tt)              No Conflicts. Neither the execution of this Agreement, nor the
+issuance, offering or sale of the Placement Shares, nor the consummation of any
+of the transactions contemplated herein, nor the compliance by the Company with
+the terms and provisions hereof will conflict with, or will result in a breach
+of, any of the terms and provisions of, or has constituted or will constitute a
+default under, or has resulted in or will result in the creation or imposition
+of any lien, charge or encumbrance upon any property or assets of the Company
+pursuant to the terms of any contract or other agreement to which the Company
+may be bound or to which any of the property or assets of the Company is
+subject, except (i) such conflicts, breaches or defaults as may have been waived
+and (ii) such conflicts, breaches and defaults that would not reasonably be
+expected to have a Material Adverse Effect; nor will such action result (x) in
+any violation of the provisions of the organizational or governing documents of
+the Company, or (y) in any material violation of the provisions of any statute
+or any order, rule or regulation applicable to the Company or of any
+Governmental Authority having jurisdiction over the Company.
+
+ 
+
+(uu)            Sanctions. (i) The Company represents that, neither the Company
+nor any of its Subsidiaries (collectively, the “Entity”) or, to the Company’s
+knowledge, any director, officer, employee, agent, affiliate or representative
+of the Entity, is a government, individual, or entity (in this paragraph (uu),
+“Person”) that is, or is owned or controlled by a Person that is:
+
+ 
+
+(A)  the subject of any sanctions administered or enforced by the U.S.
+Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United
+Nations Security Council, the European Union, Her Majesty’s Treasury, or other
+relevant sanctions authorities, including, without limitation, designation on
+OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign
+Sanctions Evaders List (as amended, collectively, “Sanctions”), nor
+
+ 
+
+
+
+ -18- 
+
+ 
+
+ 
+
+(B)  located, organized or resident in a country or territory that is the
+subject of Sanctions that broadly prohibit dealings with that country or
+territory (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria
+and the Crimea Region of the Ukraine) (the “Sanctioned Countries”)).
+
+ 
+
+(ii)  The Entity represents and covenants that it will not, directly or
+indirectly, use the proceeds of the offering, or lend, contribute or otherwise
+make available such proceeds to any subsidiary, joint venture partner or other
+Person:
+
+ 
+
+(A)  to fund or facilitate any activities or business of or with any Person or
+in any country or territory that, at the time of such funding or facilitation,
+is the subject of Sanctions or is a Sanctioned Country; or
+
+ 
+
+(B)  in any other manner that will result in a violation of Sanctions by any
+Person (including any Person participating in the offering, whether as
+underwriter, advisor, investor or otherwise).
+
+ 
+
+(iii)  The Entity represents and covenants that, except as detailed in the
+Registration Statement and the Prospectus, for the past 5 years, it has not
+engaged in, is not now engaging in, and will not engage in, any dealings or
+transactions with any Person, or in any country or territory, that at the time
+of the dealing or transaction is or was the subject of Sanctions or is or was a
+Sanctioned Country.
+
+ 
+
+(vv)           Stock Transfer Taxes. On each Settlement Date, all stock transfer
+or other taxes (other than income taxes) which are required to be paid in
+connection with the sale and transfer of the Placement Shares to be sold
+hereunder will be, or will have been, fully paid or provided for by the Company
+and all laws imposing such taxes will be or will have been fully complied with
+in all material respects.
+
+ 
+
+(ww)       Compliance with Laws. Each of the Company and its Subsidiaries: (A)
+is and at all times has been in compliance with all statutes, rules, or
+regulations applicable to the ownership, testing, development, manufacture,
+packaging, processing, use, distribution, marketing, labeling, promotion, sale,
+offer for sale, storage, import, export or disposal of any product manufactured
+or distributed by the Company or its Subsidiaries (“Applicable Laws”), except as
+could not, individually or in the aggregate, reasonably be expected to result in
+a Material Adverse Effect; (B) has not received any FDA Form 483, notice of
+adverse finding, warning letter, untitled letter or other correspondence or
+notice from the FDA or any other Governmental Authority alleging or asserting
+noncompliance with any Applicable Laws or any licenses, certificates, approvals,
+clearances, authorizations, permits and supplements or amendments thereto
+required by any such Applicable Laws (“Authorizations”); (C) possesses all
+material Authorizations and such Authorizations are valid and in full force and
+effect and are not in material violation of any term of any such Authorizations;
+(D) has not received notice of any claim, action, suit, proceeding, hearing,
+enforcement, investigation, arbitration or other action from any Governmental
+Authority or third party alleging that any product operation or activity is in
+violation of any Applicable Laws or Authorizations and has no knowledge that any
+such Governmental Authority or third party is considering any such claim,
+litigation, arbitration, action, suit, investigation or proceeding; (E) has not
+received notice that any Governmental Authority has taken, is taking or intends
+to take action to limit, suspend, modify or revoke any Authorizations and has no
+knowledge that any such Governmental Authority is considering such action; (F)
+has filed, obtained, maintained or submitted all material reports, documents,
+forms, notices, applications, records, claims, submissions and supplements or
+amendments as required by any Applicable Laws or Authorizations and that all
+such reports, documents, forms, notices, applications, records, claims,
+submissions and supplements or amendments were complete and correct in all
+material respects on the date filed (or were corrected or supplemented by a
+subsequent submission); and (G) has not, either voluntarily or involuntarily,
+initiated, conducted, or issued or caused to be initiated, conducted or issued,
+any recall, market withdrawal or replacement, safety alert, post sale warning,
+“dear healthcare provider” letter, or other notice or action relating to the
+alleged lack of safety or efficacy of any product or any alleged product defect
+or violation and, to the Company’s knowledge, no third party has initiated,
+conducted or intends to initiate any such notice or action.
+
+ 
+
+
+
+ -19- 
+
+ 
+
+ 
+
+(xx)           Statistical and Market-Related Data.  The statistical,
+demographic and market-related data included in the Registration Statement and
+Prospectus are based on or derived from sources that the Company believes to be
+reliable and accurate or represent the Company’s good faith estimates that are
+made on the basis of data derived from such sources.
+
+ 
+
+(yy)           Cybersecurity. The Company and its subsidiaries’ information
+technology assets and equipment, computers, systems, networks, hardware,
+software, websites, applications, and databases (collectively, “IT Systems”) are
+adequate for, and operate and perform in all material respects as required in
+connection with the operation of the business of the Company as currently
+conducted, free and clear of all material bugs, errors, defects, Trojan horses,
+time bombs, malware and other corruptants. The Company and its subsidiaries have
+implemented and maintained commercially reasonable physical, technical and
+administrative controls, policies, procedures, and safeguards to maintain and
+protect their material confidential information and the integrity, continuous
+operation, redundancy and security of all IT Systems and data, including all
+“Personal Data” (defined below) and all sensitive, confidential or regulated
+data (“Confidential Data”) used in connection with their businesses. “Personal
+Data” means (i) a natural person’s name, street address, telephone number,
+e-mail address, photograph, social security number or tax identification number,
+driver’s license number, passport number, credit card number, bank information,
+or customer or account number; (ii) any information which would qualify as
+“personally identifying information” under the Federal Trade Commission Act, as
+amended; (iii) “personal data” as defined by GDPR; (iv) any information which
+would qualify as “protected health information” under the Health Insurance
+Portability and Accountability Act of 1996, as amended by the Health Information
+Technology for Economic and Clinical Health Act (collectively, “HIPAA”); (v) any
+“personal information” as defined by the California Consumer Privacy Act
+(“CCPA”); and (vi) any other piece of information that allows the identification
+of such natural person, or his or her family, or permits the collection or
+analysis of any data related to an identified person’s health or sexual
+orientation. There have been no breaches, violations, outages or unauthorized
+uses of or accesses to same, except for those that have been remedied without
+material cost or liability or the duty to notify any other person, nor any
+incidents under internal review or investigations relating to the same. The
+Company and its subsidiaries are presently in material compliance with all
+applicable laws or statutes and all judgments, orders, rules and regulations of
+any court or arbitrator or governmental or regulatory authority, internal
+policies and contractual obligations relating to the privacy and security of IT
+Systems, Confidential Data, and Personal Data and to the protection of such IT
+Systems, Confidential Data, and Personal Data from unauthorized use, access,
+misappropriation or modification.
+
+ 
+
+
+
+ -20- 
+
+ 
+
+ 
+
+(zz)            Compliance with Data Privacy Laws. The Company and its
+subsidiaries are, and at all prior times were, in material compliance with all
+applicable state and federal data privacy and security laws and regulations,
+including without limitation HIPAA, CCPA, and the European Union General Data
+Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”).
+To ensure compliance with the Privacy Laws, the Company has in place, complies
+with, and takes appropriate steps to ensure compliance in all material respects
+with their policies and procedures relating to data privacy and security and the
+collection, storage, use, processing, disclosure, handling, and analysis of
+Personal Data and Confidential Data (the “Policies”). The Company has at all
+times made all disclosures to users or customers required by applicable laws and
+regulatory rules or requirements, and none of such disclosures made or contained
+in any Policy have been inaccurate or in violation of any applicable laws and
+regulatory rules or requirements in any material respect. The Company further
+certifies that neither it nor any subsidiary: (i) has received notice of any
+actual or potential liability under or relating to, or actual or potential
+violation of, any of the Privacy Laws, and has no knowledge of any event or
+condition that would reasonably be expected to result in any such notice; (ii)
+is currently conducting or paying for, in whole or in part, any investigation,
+remediation, or other corrective action pursuant to any Privacy Law; or (iii) is
+a party to any order, decree, or agreement that imposes any obligation or
+liability under any Privacy Law.
+
+ 
+
+Any certificate signed by an officer of the Company and delivered to the Agent
+or to counsel for the Agent pursuant to or in connection with this Agreement
+shall be deemed to be a representation and warranty by the Company, as
+applicable, to the Agent as to the matters set forth therein.
+
+ 
+
+7.             Covenants of the Company. The Company covenants and agrees with
+Agent that:
+
+ 
+
+(a)               Registration Statement Amendments. After the date of this
+Agreement and during any period in which a Prospectus relating to any Placement
+Shares is required to be delivered by Agent under the Securities Act (including
+in circumstances where such requirement may be satisfied pursuant to Rule 172
+under the Securities Act or similar rule), (i) the Company will notify the Agent
+promptly of the time when any subsequent amendment to the Registration
+Statement, other than documents incorporated by reference, has been filed with
+the Commission and/or has become effective or any subsequent supplement to the
+Prospectus has been filed and of any request by the Commission for any amendment
+or supplement to the Registration Statement or Prospectus or for additional
+information, (ii) the Company will prepare and file with the Commission,
+promptly upon the Agent’s reasonable request, any amendments or supplements to
+the Registration Statement or Prospectus that, in the Agent’s reasonable
+opinion, may be necessary or advisable in connection with the distribution of
+the Placement Shares by the Agent (provided, however, that the failure of the
+Agent to make such request shall not relieve the Company of any obligation or
+liability hereunder, or affect the Agent’s right to rely on the representations
+and warranties made by the Company in this Agreement and provided, further, that
+the only remedy the Agent shall have with respect to the failure to make such
+filing shall be to cease making sales under this Agreement until such amendment
+or supplement is filed); (iii) the Company will not file any amendment or
+supplement to the Registration Statement or Prospectus (except for documents
+incorporated by reference) relating to the Placement Shares or a security
+convertible into the Placement Shares unless a copy thereof has been submitted
+to the Agent within a reasonable period of time before the filing and the Agent
+has not objected thereto in good faith on reasonable grounds and in writing
+within two (2) Business Days (provided, however, that (A) the failure of the
+Agent to make such objection shall not relieve the Company of any obligation or
+liability hereunder, or affect the Agent’s right to rely on the representations
+and warranties made by the Company in this Agreement, and (B) the Company has no
+obligation to provide the Agent any advance copy of such filing or to provide
+the Agent an opportunity to object to such filing, if such filing does not name
+the Agent and does not reference the transactions contemplated hereunder; and
+provided, further, that the only remedy the Agent shall have with respect to the
+failure by the Company to obtain such consent shall be to cease making sales
+under this Agreement) and the Company will furnish to the Agent at the time of
+filing thereof a copy of any document that upon filing is deemed to be
+incorporated by reference into the Registration Statement or Prospectus, except
+for those documents available via EDGAR; and (iv) the Company will cause each
+amendment or supplement to the Prospectus to be filed with the Commission as
+required pursuant to the applicable paragraph of Rule 424(b) of the Securities
+Act or, in the case of any document to be incorporated therein by reference, to
+be filed with the Commission as required pursuant to the Exchange Act, within
+the time period prescribed (the determination to file or not file any amendment
+or supplement with the Commission under this Section 7(a), based on the
+Company’s reasonable opinion or reasonable objections, shall be made exclusively
+by the Company).
+
+ 
+
+
+
+ -21- 
+
+ 
+
+ 
+
+(b)               Notice of Commission Stop Orders. The Company will advise the
+Agent, promptly after it receives notice or obtains knowledge thereof, of the
+issuance or threatened issuance by the Commission of any stop order suspending
+the effectiveness of the Registration Statement, of the suspension of the
+qualification of the Placement Shares for offering or sale in any jurisdiction,
+or of the initiation or threatening of any proceeding for any such purpose; and
+it will promptly use its commercially reasonable efforts to prevent the issuance
+of any stop order or to obtain its withdrawal if such a stop order should be
+issued. The Company will advise the Agent promptly after it receives any request
+by the Commission for any amendments to the Registration Statement or any
+amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus
+or for additional information related to the offering of the Placement Shares or
+for additional information related to the Registration Statement, the Prospectus
+or any Issuer Free Writing Prospectus.
+
+ 
+
+(c)               Delivery of Prospectus; Subsequent Changes. During any period
+in which a Prospectus relating to the Placement Shares is required to be
+delivered by the Agent under the Securities Act with respect to the offer and
+sale of the Placement Shares (including in circumstances where such requirement
+may be satisfied pursuant to Rule 172 under the Securities Act or similar rule),
+the Company will comply in all material respects with all requirements imposed
+upon it by the Securities Act, as from time to time in force, and to file on or
+before their respective due dates all reports and any definitive proxy or
+information statements required to be filed by the Company with the Commission
+pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under
+the Exchange Act. If the Company has omitted any information from the
+Registration Statement pursuant to Rule 430B under the Securities Act, it will
+use its best efforts to comply with the provisions of and make all requisite
+filings with the Commission pursuant to said Rule 430B and to notify the Agent
+promptly of all such filings if not available on EDGAR. If during such period
+any event occurs as a result of which the Prospectus as then amended or
+supplemented would include an untrue statement of a material fact or omit to
+state a material fact necessary to make the statements therein, in the light of
+the circumstances then existing, not misleading, or if during such period it is
+necessary to amend or supplement the Registration Statement or Prospectus to
+comply with the Securities Act, the Company will promptly notify the Agent to
+suspend the offering of Placement Shares during such period and the Company will
+promptly amend or supplement the Registration Statement or Prospectus (at the
+expense of the Company) so as to correct such statement or omission or effect
+such compliance; provided, however, that the Company may delay such amendment or
+supplement if, in the reasonable judgment of the Company, it is in the best
+interests of the Company to do so.
+
+ 
+
+
+
+ -22- 
+
+ 
+
+ 
+
+(d)               Listing of Placement Shares. Prior to the date of the first
+Placement Notice, the Company will use its reasonable best efforts to cause the
+Placement Shares to be listed on the Exchange.
+
+ 
+
+(e)               Delivery of Registration Statement and Prospectus. The Company
+will furnish to the Agent and its counsel (at the expense of the Company) copies
+of the Registration Statement, the Prospectus (including all documents
+incorporated by reference therein) and all amendments and supplements to the
+Registration Statement or Prospectus that are filed with the Commission during
+any period in which a Prospectus relating to the Placement Shares is required to
+be delivered under the Securities Act (including all documents filed with the
+Commission during such period that are deemed to be incorporated by reference
+therein), in each case as soon as reasonably practicable and in such quantities
+as the Agent may from time to time reasonably request and, at the Agent’s
+request, will also furnish copies of the Prospectus to each exchange or market
+on which sales of the Placement Shares may be made; provided, however, that the
+Company shall not be required to furnish any document (other than the
+Prospectus) to the Agent to the extent such document is available on EDGAR.
+
+ 
+
+(f)                Earning Statement. To the extent not otherwise available on
+EDGAR, the Company will make generally available to its security holders as soon
+as practicable, but in any event not later than 15 months after the end of the
+Company’s current fiscal quarter, an earning statement covering a 12-month
+period that satisfies the provisions of Section 11(a) and Rule 158 of the
+Securities Act.
+
+ 
+
+(g)               Use of Proceeds. The Company will use the Net Proceeds as
+described in the Prospectus in the section entitled “Use of Proceeds.”
+
+ 
+
+(h)               Notice of Other Sales. Without the prior written consent of
+the Agent, the Company will not, directly or indirectly, offer to sell, sell,
+contract to sell, grant any option to sell or otherwise dispose of any Common
+Stock (other than the Placement Shares offered pursuant to this Agreement) or
+securities convertible into or exchangeable for Common Stock, warrants or any
+rights to purchase or acquire, Common Stock during the period beginning on the
+fifth (5th) Trading Day immediately prior to the date on which any Placement
+Notice is delivered to the Agent hereunder and ending on the fifth (5th) Trading
+Day immediately following the final Settlement Date with respect to Placement
+Shares sold pursuant to such Placement Notice (or, if the Placement Notice has
+been terminated or suspended prior to the sale of all Placement Shares covered
+by a Placement Notice, the date of such suspension or termination); and will not
+directly or indirectly in any other “at the market” or continuous equity
+transaction offer to sell, sell, contract to sell, grant any option to sell or
+otherwise dispose of any Common Stock (other than the Placement Shares offered
+pursuant to this Agreement) or securities convertible into or exchangeable for
+Common Stock, warrants or any rights to purchase or acquire, Common Stock prior
+to the later of the termination of this Agreement and the thirtieth (30th) day
+immediately following the final Settlement Date with respect to Placement Shares
+sold pursuant to such Placement Notice; provided, however, that such
+restrictions will not be required in connection with the Company’s issuance or
+sale of (i) Common Stock, options to purchase Common Stock, other equity awards
+to acquire Common Stock, or Common Stock issuable upon the exercise of options
+or other equity awards, pursuant to (A) any employee or director stock option or
+benefits plan, equity incentive or stock ownership plan or dividend reinvestment
+plan (but not Common Stock subject to a waiver to exceed plan limits in its
+dividend reinvestment plan) of the Company whether now in effect or hereafter
+implemented or (B) Nasdaq Listing Rule 5635(c)(4), (ii) Common Stock issuable
+upon conversion of securities or the exercise of warrants, options or other
+rights in effect or outstanding, and disclosed in filings by the Company
+available on EDGAR or otherwise in writing to the Agent and (iii) Common Stock
+or securities convertible into or exchangeable for shares of Common Stock as
+consideration for mergers, acquisitions, licensing, other business combinations
+or strategic alliances or corporate partnering transactions occurring after the
+date of this Agreement which are not issued for capital raising purposes.
+
+ 
+
+
+
+ -23- 
+
+ 
+
+ 
+
+(i)                 Change of Circumstances. The Company will, at any time
+during the pendency of a Placement Notice advise the Agent promptly after it
+shall have received notice or obtained knowledge thereof, of any information or
+fact that would alter or affect in any material respect any opinion,
+certificate, letter or other document required to be provided to the Agent
+pursuant to this Agreement.
+
+ 
+
+(j)                 Due Diligence Cooperation. The Company will cooperate with
+any reasonable due diligence review conducted by the Agent or its
+representatives in connection with the transactions contemplated hereby,
+including, without limitation, providing information and making available
+documents and senior corporate officers, during regular business hours and at
+the Company’s principal offices, as the Agent may reasonably request.
+
+ 
+
+(k)               Required Filings Relating to Placement of Placement Shares.
+The Company agrees that on such dates as the Securities Act shall require with
+respect to the Placement Shares, the Company will (i) file a prospectus
+supplement with the Commission under the applicable paragraph of Rule 424(b)
+under the Securities Act (each and every filing date under Rule 424(b), a
+“Filing Date”), which prospectus supplement will set forth, within the relevant
+period, the amount of Placement Shares sold through the Agent, the Net Proceeds
+to the Company and the compensation payable by the Company to the Agent with
+respect to such Placement Shares, and (ii) deliver such number of copies of each
+such prospectus supplement to each exchange or market on which such sales were
+effected as may be required by the rules or regulations of such exchange or
+market.
+
+ 
+
+(l)                 Representation Dates; Certificate. (1) On or prior to the
+date of the first Placement Notice and (2) each time the Company:
+
+ 
+
+(i) files the Prospectus relating to the Placement Shares or amends or
+supplements (other than a prospectus supplement relating solely to an offering
+of securities other than the Placement Shares) the Registration Statement or the
+Prospectus relating to the Placement Shares by means of a post-effective
+amendment, sticker, or supplement but not by means of incorporation of documents
+by reference into the Registration Statement or the Prospectus relating to the
+Placement Shares;
+
+ 
+
+
+
+ -24- 
+
+ 
+
+ 
+
+(ii) files an annual report on Form 10-K under the Exchange Act (including any
+Form 10-K/A containing amended financial information or a material amendment to
+the previously filed Form 10-K);
+
+ 
+
+(iii) files its quarterly reports on Form 10-Q under the Exchange Act; or
+
+ 
+
+(iv) files a current report on Form 8-K containing amended financial information
+(other than information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K
+or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the
+reclassification of certain properties as discontinued operations in accordance
+with Statement of Financial Accounting Standards No. 144) under the Exchange Act
+(each date of filing of one or more of the documents referred to in clauses (i)
+through (iv) shall be a “Representation Date”);
+
+ 
+
+the Company shall furnish the Agent (but in the case of clause (iv) above only
+if the Agent reasonably determines that the information contained in such Form
+8-K is material) with a certificate dated the Representation Date, in the form
+and substance satisfactory to the Agent and its counsel, substantially similar
+to the form previously provided to the Agent and its counsel, modified, as
+necessary, to relate to the Registration Statement and the Prospectus as amended
+or supplemented. The requirement to provide a certificate under this Section
+7(l) shall be automatically waived for any Representation Date occurring (1) at
+a time a Suspension is in effect, which waiver shall continue until the earlier
+to occur of the date the Company delivers instructions for the sale of Placement
+Shares hereunder (which for such calendar quarter shall be considered a
+Representation Date) and the next occurring Representation Date and (2) at a
+time at which no Placement Notice is pending, which waiver shall continue until
+the date the Company delivers a Placement Notice hereunder (which for such
+calendar quarter shall be considered a Representation Date). Notwithstanding the
+foregoing, if the Company subsequently decides to sell Placement Shares
+following a Representation Date when a Suspension was in effect and did not
+provide the Agent with a certificate under this Section 7(l), then before the
+Company delivers the instructions for the sale of Placement Shares or the Agent
+sells any Placement Shares pursuant to such instructions, the Company shall
+provide the Agent with a certificate in conformity with this Section 7(l) dated
+as of the date that the instructions for the sale of Placement Shares are
+issued.
+
+ 
+
+(m)             Legal Opinion. (1) Prior to the date of the first Placement
+Notice and (2) within five (5) Trading Days of each Representation Date with
+respect to which the Company is obligated to deliver a certificate pursuant to
+Section 7(l) for which no waiver is applicable and excluding the date of this
+Agreement, the Company shall cause to be furnished to the Agent a written
+opinion of Pepper Hamilton LLP (“Company Counsel”), or other counsel reasonably
+satisfactory to the Agent, in form and substance satisfactory to Agent and its
+counsel, substantially similar to the form previously provided to the Agent and
+its counsel, modified, as necessary, to relate to the Registration Statement and
+the Prospectus as then amended or supplemented; provided, however, the Company
+shall be required to furnish to Agent no more than one opinion hereunder per
+calendar quarter; provided, further, that in lieu of such opinions for
+subsequent periodic filings under the Exchange Act, counsel may furnish the
+Agent with a letter (a “Reliance Letter”) to the effect that the Agent may rely
+on a prior opinion delivered under this Section 7(m) to the same extent as if it
+were dated the date of such letter (except that statements in such prior opinion
+shall be deemed to relate to the Registration Statement and the Prospectus as
+amended or supplemented as of the date of the Reliance Letter).
+
+ 
+
+
+
+ -25- 
+
+ 
+
+ 
+
+ 
+
+(n)               Comfort Letter. (1) On or prior to the date of the first
+Placement Notice and (2) within five (5) Trading Days of each Representation
+Date with respect to which the Company is obligated to deliver a certificate
+pursuant to Section 7(l) for which no waiver is applicable and excluding the
+date of this Agreement, the Company shall cause its independent registered
+public accounting firm to furnish the Agent letters (the “Comfort Letters”),
+dated the date the Comfort Letter is delivered, which shall meet the
+requirements set forth in this Section 7(n); provided, that if reasonably
+requested by the Agent, the Company shall cause a Comfort Letter to be furnished
+to the Agent within ten (10) Trading Days of the date of occurrence of any
+material transaction or event requiring the filing of a Current Report on Form
+8-K containing financial information, including the restatement of the Company’s
+financial statements. The Comfort Letter from the Company’s independent
+registered public accounting firm shall be in a form and substance reasonably
+satisfactory to the Agent, (i) confirming that they are an independent
+registered public accounting firm within the meaning of the Securities Act and
+the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
+firm with respect to the financial information and other matters ordinarily
+covered by accountants’ “comfort letters” to underwriters in connection with
+registered public offerings (the first such letter, the “Initial Comfort
+Letter”) and (iii) updating the Initial Comfort Letter with any information that
+would have been included in the Initial Comfort Letter had it been given on such
+date and modified as necessary to relate to the Registration Statement and the
+Prospectus, as amended and supplemented to the date of such letter.
+
+ 
+
+(o)               Market Activities. The Company will not, directly or
+indirectly, (i) take any action designed to cause or result in, or that
+constitutes or would reasonably be expected to constitute, the stabilization or
+manipulation of the price of any security of the Company to facilitate the sale
+or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in
+violation of Regulation M, or pay anyone any compensation for soliciting
+purchases of the Placement Shares other than the Agent.
+
+ 
+
+(p)               Investment Company Act. The Company will conduct its affairs
+in such a manner so as to reasonably ensure that neither it nor any of its
+Subsidiaries will be or become, at any time prior to the termination of this
+Agreement, required to register as an “investment company,” as such term is
+defined in the Investment Company Act.
+
+ 
+
+(q)               No Offer to Sell. Other than an Issuer Free Writing Prospectus
+approved in advance by the Company and the Agent in its capacity as agent
+hereunder, neither the Agent nor the Company (including its agents and
+representatives, other than the Agent in its capacity as such) will make, use,
+prepare, authorize, approve or refer to any written communication (as defined in
+Rule 405 under the Securities Act), required to be filed with the Commission,
+that constitutes an offer to sell or solicitation of an offer to buy Placement
+Shares hereunder.
+
+ 
+
+(r)                Blue Sky and Other Qualifications. The Company will use its
+commercially reasonable efforts, in cooperation with the Agent, to qualify the
+Placement Shares for offering and sale, or to obtain an exemption for the
+Placement Shares to be offered and sold, under the applicable securities laws of
+such states and other jurisdictions (domestic or foreign) as the Agent may
+designate and to maintain such qualifications and exemptions in effect for so
+long as required for the distribution of the Placement Shares (but in no event
+for less than one year from the date of this Agreement); provided, however, that
+the Company shall not be obligated to file any general consent to service of
+process or to qualify as a foreign corporation or as a dealer in securities in
+any jurisdiction in which it is not so qualified or to subject itself to
+taxation in respect of doing business in any jurisdiction in which it is not
+otherwise so subject. In each jurisdiction in which the Placement Shares have
+been so qualified or exempt, the Company will file such statements and reports
+as may be required by the laws of such jurisdiction to continue such
+qualification or exemption, as the case may be, in effect for so long as
+required for the distribution of the Placement Shares (but in no event for less
+than one year from the date of this Agreement).
+
+ 
+
+
+
+-26-
+
+ 
+
+ 
+
+(s)               Sarbanes-Oxley Act. The Company and the Subsidiaries will
+maintain and keep accurate books and records reflecting their assets and
+maintain internal accounting controls in a manner designed to provide reasonable
+assurance regarding the reliability of financial reporting and the preparation
+of financial statements for external purposes in accordance with generally
+accepted accounting principles and including those policies and procedures that
+(i) pertain to the maintenance of records that in reasonable detail accurately
+and fairly reflect the transactions and dispositions of the assets of the
+Company, (ii) provide reasonable assurance that transactions are recorded as
+necessary to permit the preparation of the Company’s consolidated financial
+statements in accordance with generally accepted accounting principles,
+(iii) that receipts and expenditures of the Company are being made only in
+accordance with management’s and the Company’s directors’ authorization, and
+(iv) provide reasonable assurance regarding prevention or timely detection of
+unauthorized acquisition, use or disposition of the Company’s assets that could
+have a material effect on its financial statements. The Company and the
+Subsidiaries will maintain such controls and other procedures, including,
+without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley
+Act, and the applicable regulations thereunder that are designed to ensure that
+information required to be disclosed by the Company in the reports that it files
+or submits under the Exchange Act is recorded, processed, summarized and
+reported, within the time periods specified in the Commission’s rules and forms,
+including, without limitation, controls and procedures designed to ensure that
+information required to be disclosed by the Company in the reports that it files
+or submits under the Exchange Act is accumulated and communicated to the
+Company’s management, including its principal executive officer and principal
+financial officer, or persons performing similar functions, as appropriate to
+allow timely decisions regarding required disclosure and to ensure that material
+information relating to the Company or the Subsidiaries is made known to them by
+others within those entities, particularly during the period in which such
+periodic reports are being prepared.
+
+ 
+
+(t)                Secretary’s Certificate; Further Documentation. On or prior
+to the date of the first Placement Notice, the Company shall deliver to the
+Agent a certificate of the Secretary of the Company and attested to by an
+executive officer of the Company, dated as of such date, certifying as to (i)
+the Sixth Amended and Restated Certificate of Incorporation of the Company, (ii)
+the Amended and Restated Bylaws of the Company, (iii) the resolutions of the
+Board of Directors of the Company authorizing the execution, delivery and
+performance of this Agreement and the issuance of the Placement Shares and (iv)
+the incumbency of the officers duly authorized to execute this Agreement and the
+other documents contemplated by this Agreement. Within five (5) Trading Days of
+each Representation Date with respect to which the Company is obligated to
+deliver a certificate pursuant to Section 7(l), for which no waiver is
+applicable and excluding the date of this Agreement, the Company shall have
+furnished to the Agent such further information, certificates and documents as
+the Agent may reasonably request.
+
+ 
+
+
+
+-27-
+
+ 
+
+ 
+
+8.             Payment of Expenses. The Company will pay all expenses incident
+to the performance of its obligations under this Agreement, including (i) the
+preparation and filing of the Registration Statement, including any fees
+required by the Commission, and the printing or electronic delivery of the
+Prospectus as originally filed and of each amendment and supplement thereto, in
+such number as the Agent shall reasonably deem necessary, (ii) the printing and
+delivery to the Agent of this Agreement and such other documents as may be
+required in connection with the offering, purchase, sale, issuance or delivery
+of the Placement Shares, (iii) the preparation, issuance and delivery of the
+certificates, if any, for the Placement Shares to the Agent, including any stock
+or other transfer taxes and any capital duties, stamp duties or other duties or
+taxes payable upon the sale, issuance or delivery of the Placement Shares to the
+Agent, (iv) the fees and disbursements of the counsel, accountants and other
+advisors to the Company, (v) the fees and expenses of the Agent including but
+not limited to the fees and expenses of the counsel to the Agent, payable upon
+the execution of this Agreement, in an amount not to exceed $15,000, (vi) the
+qualification or exemption of the Placement Shares under state securities laws
+in accordance with the provisions of Section 7(r) hereof, including filing fees,
+but excluding fees of the Agent’s counsel, (vii) the printing and delivery to
+the Agent of copies of any Permitted Issuer Free Writing Prospectus and the
+Prospectus and any amendments or supplements thereto in such number as the Agent
+shall reasonably deem necessary, (viii) the preparation, printing and delivery
+to the Agent of copies of the blue sky survey (subject to the cap set forth in
+clause (v) above), (ix) the fees and expenses of the transfer agent and
+registrar for the Common Stock, (x) the filing and other fees incident to any
+review by FINRA of the terms of the sale of the Placement Shares including the
+fees of the Agent’s counsel (subject to the cap, set forth in clause (v) above),
+and (xi) the fees and expenses incurred in connection with the listing of the
+Placement Shares on the Exchange.
+
+ 
+
+9.             Conditions to Agent’s Obligations. The obligations of the Agent
+hereunder with respect to a Placement will be subject to the continuing accuracy
+and completeness of the representations and warranties made by the Company
+herein, to the due performance by the Company of its obligations hereunder, to
+the completion by the Agent of a due diligence review satisfactory to it in its
+reasonable judgment, and to the continuing satisfaction (or waiver by the Agent
+in its sole discretion) of the following additional conditions:
+
+ 
+
+(a)               Registration Statement Effective. The Registration Statement
+shall have become effective and shall be available for the (i) resale of all
+Placement Shares issued to the Agent and not yet sold by the Agent and (ii) sale
+of all Placement Shares contemplated to be issued by any Placement Notice.
+
+ 
+
+(b)              No Material Notices. None of the following events shall have
+occurred and be continuing: (i) receipt by the Company of any request for
+additional information from the Commission or any other federal or state
+Governmental Authority during the period of effectiveness of the Registration
+Statement, the response to which would require any post-effective amendments or
+supplements to the Registration Statement or the Prospectus; (ii) the issuance
+by the Commission or any other federal or state Governmental Authority of any
+stop order suspending the effectiveness of the Registration Statement or the
+initiation of any proceedings for that purpose; (iii) receipt by the Company of
+any notification with respect to the suspension of the qualification or
+exemption from qualification of any of the Placement Shares for sale in any
+jurisdiction or the initiation or threatening of any proceeding for such
+purpose; or (iv) the occurrence of any event that makes any material statement
+made in the Registration Statement or the Prospectus or any material document
+incorporated or deemed to be incorporated therein by reference untrue in any
+material respect or that requires the making of any changes in the Registration
+Statement, the Prospectus or incorporated documents so that, in the case of the
+Registration Statement, it will not contain an untrue statement of a material
+fact or omit to state any material fact required to be stated therein or
+necessary to make the statements therein not misleading and, that in the case of
+the Prospectus, it will not contain an untrue statement of a material fact or
+omit to state any material fact required to be stated therein or necessary to
+make the statements therein, in the light of the circumstances under which they
+were made, not misleading.
+
+ 
+
+
+
+-28-
+
+ 
+
+ 
+
+(c)              No Misstatement or Material Omission. The Agent shall not have
+advised the Company that the Registration Statement or Prospectus, or any
+amendment or supplement thereto, contains an untrue statement of fact that in
+the Agent’s reasonable opinion is material, or omits to state a fact that in the
+Agent’s reasonable opinion is material and is required to be stated therein or
+is necessary to make the statements therein not misleading.
+
+ 
+
+(d)              Material Changes. Except as contemplated in the Prospectus, or
+disclosed in the Company’s reports filed with the Commission, there shall not
+have been any material adverse change in the authorized capital stock of the
+Company or any Material Adverse Effect or any development that would reasonably
+be expected to cause a Material Adverse Effect, or a downgrading in or
+withdrawal of the rating assigned to any of the Company’s securities (other than
+asset backed securities) by any rating organization or a public announcement by
+any rating organization that it has under surveillance or review its rating of
+any of the Company’s securities (other than asset backed securities), the effect
+of which, in the case of any such action by a rating organization described
+above, in the reasonable judgment of the Agent (without relieving the Company of
+any obligation or liability it may otherwise have), is so material as to make it
+impracticable or inadvisable to proceed with the offering of the Placement
+Shares on the terms and in the manner contemplated in the Prospectus.
+
+ 
+
+(e)               Legal Opinions. The Agent shall have received the opinions of
+Company Counsel required to be delivered pursuant to Section 7(m) on or before
+the date on which such delivery of such opinions is required pursuant to Section
+7(m).
+
+ 
+
+(f)                Comfort Letter. The Agent shall have received the Comfort
+Letter required to be delivered pursuant to Section 7(n) on or before the date
+on which such delivery of such Comfort Letter is required pursuant to Section
+7(n).
+
+ 
+
+(g)              Representation Certificate. The Agent shall have received the
+certificate required to be delivered pursuant to Section 7(l) on or before the
+date on which delivery of such certificate is required pursuant to Section 7(l).
+
+ 
+
+(h)              No Suspension. Trading in the Common Stock shall not have been
+suspended on the Exchange and the Common Stock shall not have been delisted from
+the Exchange.
+
+ 
+
+(i)                Other Materials. On each date on which the Company is
+required to deliver a certificate pursuant to Section 7(l), the Company shall
+have furnished to the Agent such appropriate further information, opinions,
+certificates, letters and other documents as the Agent may reasonably request.
+All such opinions, certificates, letters and other documents will be in
+compliance with the provisions hereof.
+
+ 
+
+
+
+-29-
+
+ 
+
+ 
+
+(j)                Securities Act Filings Made. All filings with the Commission
+required by Rule 424 under the Securities Act to have been filed prior to the
+issuance of any Placement Notice hereunder shall have been made within the
+applicable time period prescribed for such filing by Rule 424.
+
+ 
+
+(k)               Approval for Listing. The Placement Shares shall either have
+been (i) approved for listing on the Exchange, subject only to notice of
+issuance, or (ii) the Company shall have filed an application for listing of the
+Placement Shares on the Exchange at, or prior to, the issuance of any Placement
+Notice and the Exchange shall have reviewed such application and not provided
+any objections thereto.
+
+ 
+
+(l)                FINRA. If applicable, FINRA shall have raised no objection to
+the terms of this offering and the amount of compensation allowable or payable
+to the Agent as described in the Prospectus.
+
+ 
+
+(m)              No Termination Event. There shall not have occurred any event
+that would permit the Agent to terminate this Agreement pursuant to Section
+12(a).
+
+ 
+
+10.           Indemnification and Contribution.
+
+ 
+
+(a)              Company Indemnification. The Company agrees to indemnify and
+hold harmless the Agent, its affiliates and their respective partners, members,
+directors, officers, employees and agents and each person, if any, who controls
+the Agent or any affiliate within the meaning of Section 15 of the Securities
+Act or Section 20 of the Exchange Act as follows:
+
+ 
+
+(i)                 against any and all loss, liability, claim, damage and
+expense whatsoever, as incurred, joint or several, arising out of or based upon
+any untrue statement or alleged untrue statement of a material fact contained in
+the Registration Statement (or any amendment thereto), or the omission or
+alleged omission therefrom of a material fact required to be stated therein or
+necessary to make the statements therein not misleading, or arising out of any
+untrue statement or alleged untrue statement of a material fact included in any
+related Issuer Free Writing Prospectus or the Prospectus (or any amendment or
+supplement thereto), or the omission or alleged omission therefrom of a material
+fact necessary in order to make the statements therein, in the light of the
+circumstances under which they were made, not misleading;
+
+ 
+
+(ii)              against any and all loss, liability, claim, damage and expense
+whatsoever, as incurred, joint or several, to the extent of the aggregate amount
+paid in settlement of any litigation, or any investigation or proceeding by any
+Governmental Authority, commenced or threatened, or of any claim whatsoever
+based upon any such untrue statement or omission, or any such alleged untrue
+statement or omission; provided that (subject to Section 10(d) below) any such
+settlement is effected with the written consent of the Company, which consent
+shall not unreasonably be delayed or withheld; and
+
+ 
+
+(iii)            against any and all expense whatsoever, as incurred (including
+the reasonable and documented fees and disbursements of counsel), reasonably
+incurred in investigating, preparing or defending against any litigation, or any
+investigation or proceeding by any Governmental Authority, commenced or
+threatened, or any claim whatsoever based upon any such untrue statement or
+omission, or any such alleged untrue statement or omission (whether or not a
+party), to the extent that any such expense is not paid under (i) or (ii) above,
+
+ 
+
+
+
+-30-
+
+ 
+
+ 
+
+provided, however, that this indemnity agreement shall not apply to any loss,
+liability, claim, damage or expense to the extent arising out of any untrue
+statement or omission or alleged untrue statement or omission made solely in
+reliance upon and in conformity with the Agent Information (as defined below).
+
+ 
+
+(b)              Agent Indemnification. Agent agrees to indemnify and hold
+harmless the Company and its directors and each officer of the Company who
+signed the Registration Statement, and each person, if any, who controls the
+Company within the meaning of Section 15 of the Securities Act or Section 20 of
+the Exchange Act against any and all loss, liability, claim, damage and expense
+described in the indemnity contained in Section 10(a), as incurred, but only
+with respect to untrue statements or omissions, or alleged untrue statements or
+omissions, made in the Registration Statement (or any amendments thereto), the
+Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing
+Prospectus (or any amendment or supplement thereto) in reliance upon and in
+conformity with information relating to the Agent and furnished to the Company
+in writing by the Agent expressly for use therein. The Company hereby
+acknowledges that the only information that the Agent has furnished to the
+Company expressly for use in the Registration Statement, the Prospectus or any
+Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the
+statements set forth in the fifth, seventh and eighth paragraphs under the
+caption “Plan of Distribution” in the Prospectus (the “Agent Information”).
+
+ 
+
+(c)               Procedure. Any party that proposes to assert the right to be
+indemnified under this Section 10 will, promptly after receipt of notice of
+commencement of any action against such party in respect of which a claim is to
+be made against an indemnifying party or parties under this Section 10, notify
+each such indemnifying party of the commencement of such action, enclosing a
+copy of all papers served, but the omission so to notify such indemnifying party
+will not relieve the indemnifying party from (i) any liability that it might
+have to any indemnified party otherwise than under this Section 10 and (ii) any
+liability that it may have to any indemnified party under the foregoing
+provision of this Section 10 unless, and only to the extent that, such omission
+results in the forfeiture of substantive rights or defenses by the indemnifying
+party. If any such action is brought against any indemnified party and it
+notifies the indemnifying party of its commencement, the indemnifying party will
+be entitled to participate in and, to the extent that it elects by delivering
+written notice to the indemnified party promptly after receiving notice of the
+commencement of the action from the indemnified party, jointly with any other
+indemnifying party similarly notified, to assume the defense of the action, with
+counsel reasonably satisfactory to the indemnified party, and after notice from
+the indemnifying party to the indemnified party of its election to assume the
+defense, the indemnifying party will not be liable to the indemnified party for
+any other legal expenses except as provided below and except for the reasonable
+and documented costs of investigation subsequently incurred by the indemnified
+party in connection with the defense. The indemnified party will have the right
+to employ its own counsel in any such action, but the fees, expenses and other
+charges of such counsel will be at the expense of such indemnified party unless
+(1) the employment of counsel by the indemnified party has been authorized in
+writing by the indemnifying party, (2) the indemnified party has reasonably
+concluded (based on advice of counsel) that there may be legal defenses
+available to it or other indemnified parties that are different from or in
+addition to those available to the indemnifying party, (3) a conflict or
+potential conflict exists (based on advice of counsel to the indemnified party)
+between the indemnified party and the indemnifying party (in which case the
+indemnifying party will not have the right to direct the defense of such action
+on behalf of the indemnified party) or (4) the indemnifying party has not in
+fact employed counsel to assume the defense of such action or counsel reasonably
+satisfactory to the indemnified party, in each case, within a reasonable time
+after receiving notice of the commencement of the action; in each of which cases
+the reasonable fees, disbursements and other charges of counsel will be at the
+expense of the indemnifying party or parties. It is understood that the
+indemnifying party or parties shall not, in connection with any proceeding or
+related proceedings in the same jurisdiction, be liable for the reasonable fees,
+disbursements and other charges of more than one separate firm (plus local
+counsel) admitted to practice in such jurisdiction at any one time for all such
+indemnified party or parties. All such fees, disbursements and other charges
+will be reimbursed by the indemnifying party promptly as they are incurred. An
+indemnifying party will not, in any event, be liable for any settlement of any
+action or claim effected without its written consent. No indemnifying party
+shall, without the prior written consent of each indemnified party, settle or
+compromise or consent to the entry of any judgment in any pending or threatened
+claim, action or proceeding relating to the matters contemplated by this Section
+10 (whether or not any indemnified party is a party thereto), unless such
+settlement, compromise or consent (1) includes an express and unconditional
+release of each indemnified party, in form and substance reasonably satisfactory
+to such indemnified party, from all liability arising out of such litigation,
+investigation, proceeding or claim and (2) does not include a statement as to or
+an admission of fault, culpability or a failure to act by or on behalf of any
+indemnified party.
+
+ 
+
+
+
+-31-
+
+ 
+
+ 
+
+(d)              Settlement Without Consent if Failure to Reimburse. If an
+indemnified party shall have requested an indemnifying party to reimburse the
+indemnified party for reasonable fees and expenses of counsel, such indemnifying
+party agrees that it shall be liable for any settlement of the nature
+contemplated by Section 10(a)(ii) effected without its written consent if
+(1) such settlement is entered into more than 45 days after receipt by such
+indemnifying party of the aforesaid request, (2) such indemnifying party shall
+have received notice of the terms of such settlement at least 30 days prior to
+such settlement being entered into and (3) such indemnifying party shall not
+have reimbursed such indemnified party in accordance with such request prior to
+the date of such settlement.
+
+ 
+
+(e)               Contribution. In order to provide for just and equitable
+contribution in circumstances in which the indemnification provided for in the
+foregoing paragraphs of this Section 10 is applicable in accordance with its
+terms but for any reason is held to be unavailable or insufficient from the
+Company or the Agent, the Company and the Agent will contribute to the total
+losses, claims, liabilities, expenses and damages (including any investigative,
+legal and other expenses reasonably incurred in connection with, and any amount
+paid in settlement of, any action, suit or proceeding or any claim asserted) to
+which the Company and the Agent may be subject in such proportion as shall be
+appropriate to reflect the relative benefits received by the Company on the one
+hand and the Agent on the other hand. The relative benefits received by the
+Company on the one hand and the Agent on the other hand shall be deemed to be in
+the same proportion as the total net proceeds from the sale of the Placement
+Shares (before deducting expenses) received by the Company bear to the total
+compensation received by the Agent from the sale of Placement Shares on behalf
+of the Company. If, but only if, the allocation provided by the foregoing
+sentence is not permitted by applicable law, the allocation of contribution
+shall be made in such proportion as is appropriate to reflect not only the
+relative benefits referred to in the foregoing sentence but also the relative
+fault of the Company, on the one hand, and the Agent, on the other hand, with
+respect to the statements or omission that resulted in such loss, claim,
+liability, expense or damage, or action in respect thereof, as well as any other
+relevant equitable considerations with respect to such offering. Such relative
+fault shall be determined by reference to, among other things, whether the
+untrue or alleged untrue statement of a material fact or omission or alleged
+omission to state a material fact relates to information supplied by the Company
+or the Agent, the intent of the parties and their relative knowledge, access to
+information and opportunity to correct or prevent such statement or omission.
+The Company and the Agent agree that it would not be just and equitable if
+contributions pursuant to this Section 10(e) were to be determined by pro rata
+allocation or by any other method of allocation that does not take into account
+the equitable considerations referred to herein. The amount paid or payable by
+an indemnified party as a result of the loss, claim, liability, expense, or
+damage, or action in respect thereof, referred to above in this Section 10(e)
+shall be deemed to include, for the purpose of this Section 10(e), any legal or
+other expenses reasonably incurred by such indemnified party in connection with
+investigating or defending any such action or claim to the extent consistent
+with Section 10(c) hereof. Notwithstanding the foregoing provisions of this
+Section 10(e), the Agent shall not be required to contribute any amount in
+excess of the commissions received by it under this Agreement and no person
+found guilty of fraudulent misrepresentation (within the meaning of Section
+11(f) of the Securities Act) will be entitled to contribution from any person
+who was not guilty of such fraudulent misrepresentation. For purposes of this
+Section 10(e), any person who controls a party to this Agreement within the
+meaning of the Securities Act, any affiliates of the Agent and any officers,
+directors, partners, employees or agents of the Agent or any of its affiliates,
+will have the same rights to contribution as that party, and each director of
+the Company and each officer of the Company who signed the Registration
+Statement will have the same rights to contribution as the Company, subject in
+each case to the provisions hereof. Any party entitled to contribution, promptly
+after receipt of notice of commencement of any action against such party in
+respect of which a claim for contribution may be made under this Section 10(e),
+will notify any such party or parties from whom contribution may be sought, but
+the omission to so notify will not relieve that party or parties from whom
+contribution may be sought from any other obligation it or they may have under
+this Section 10(e) except to the extent that the failure to so notify such other
+party materially prejudiced the substantive rights or defenses of the party from
+whom contribution is sought. Except for a settlement entered into pursuant to
+the last sentence of Section 10(c) hereof, no party will be liable for
+contribution with respect to any action or claim settled without its written
+consent if such consent is required pursuant to Section 10(c) hereof.
+
+ 
+
+
+
+-32-
+
+ 
+
+ 
+
+11.           Representations and Agreements to Survive Delivery. The indemnity
+and contribution agreements contained in Section 10 of this Agreement and all
+representations and warranties of the Company herein or in certificates
+delivered pursuant hereto shall survive, as of their respective dates,
+regardless of (i) any investigation made by or on behalf of the Agent, any
+controlling persons, or the Company (or any of their respective officers,
+directors, employees or controlling persons), (ii) delivery and acceptance of
+the Placement Shares and payment therefor or (iii) any termination of this
+Agreement.
+
+ 
+
+12.           Termination.
+
+ 
+
+(a)               The Agent may terminate this Agreement, by notice to the
+Company, as hereinafter specified at any time (1) if there has been, since the
+time of execution of this Agreement or since the date as of which information is
+given in the Prospectus, any change, or any development or event involving a
+prospective change, in the condition, financial or otherwise, or in the
+business, properties, earnings, results of operations or prospects of the
+Company and its Subsidiaries considered as one enterprise, whether or not
+arising in the ordinary course of business, which individually or in the
+aggregate, in the sole judgment of the Agent is material and adverse and makes
+it impractical or inadvisable to market the Placement Shares or to enforce
+contracts for the sale of the Placement Shares, (2) if there has occurred any
+material adverse change in the financial markets in the United States or the
+international financial markets, any outbreak of hostilities or escalation
+thereof or other calamity or crisis or any change or development involving a
+prospective change in national or international political, financial or economic
+conditions, in each case the effect of which is such as to make it, in the
+judgment of the Agent, impracticable or inadvisable to market the Placement
+Shares or to enforce contracts for the sale of the Placement Shares, (3) if
+trading in the Common Stock has been suspended or limited by the Commission or
+the Exchange, or if trading generally on the Exchange has been suspended or
+limited, or minimum prices for trading have been fixed on the Exchange, (4) if
+any suspension of trading of any securities of the Company on any exchange or in
+the over-the-counter market shall have occurred and be continuing for at least
+five (5) Trading Days, (5) if a major disruption of securities settlements or
+clearance services in the United States shall have occurred and be continuing,
+or (6) if a banking moratorium has been declared by either U.S. Federal or New
+York authorities. Any such termination shall be without liability of any party
+to any other party except that the provisions of Section 8 (Payment of
+Expenses), Section 10 (Indemnification and Contribution), Section 11
+(Representations and Agreements to Survive Delivery), Section 17 (Governing Law
+and Time; Waiver of Jury Trial) and Section 18 (Consent to Jurisdiction) hereof
+shall remain in full force and effect notwithstanding such termination. If the
+Agent elects to terminate this Agreement as provided in this Section 12(a), the
+Agent shall provide the required notice as specified in Section 13 (Notices).
+
+ 
+
+
+
+-33-
+
+ 
+
+ 
+
+(b)               The Company shall have the right, by giving ten (10) days’
+notice (or five (5) days’ notice at any time when no Placement Notice is in
+effect) as hereinafter specified to terminate this Agreement in its sole
+discretion at any time after the date of this Agreement. Any such termination
+shall be without liability of any party to any other party except that the
+provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
+hereof shall remain in full force and effect notwithstanding such termination.
+
+ 
+
+(c)               The Agent shall have the right, by giving ten (10) days’
+notice as hereinafter specified to terminate this Agreement in its sole
+discretion at any time after the date of this Agreement. Any such termination
+shall be without liability of any party to any other party except that the
+provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
+hereof shall remain in full force and effect notwithstanding such termination.
+
+ 
+
+(d)               Unless earlier terminated pursuant to this Section 13, this
+Agreement shall automatically terminate upon the issuance and sale of all of the
+Placement Shares through the Agent on the terms and subject to the conditions
+set forth herein; provided that the provisions of Section 8, Section 10, Section
+11, Section 17 and Section 18 hereof shall remain in full force and effect
+notwithstanding such termination.
+
+ 
+
+
+
+-34-
+
+ 
+
+ 
+
+(e)               This Agreement shall remain in full force and effect unless
+terminated pursuant to Sections 12(a), (b), (c) or (d) above or otherwise by
+mutual agreement of the parties; provided, however, that any such termination by
+mutual agreement shall in all cases be deemed to provide that Section 8, Section
+10, Section 11, Section 17 and Section 18 shall remain in full force and effect.
+
+ 
+
+(f)                Any termination of this Agreement shall be effective on the
+date specified in such notice of termination; provided, however, that such
+termination shall not be effective until the close of business on the date of
+receipt of such notice by the Agent or the Company, as the case may be. If such
+termination shall occur prior to the Settlement Date for any sale of Placement
+Shares, such Placement Shares shall settle in accordance with the provisions of
+this Agreement.
+
+ 
+
+13.           Notices. All notices or other communications required or permitted
+to be given by any party to any other party pursuant to the terms of this
+Agreement shall be in writing, unless otherwise specified, and if sent to the
+Agent, shall be delivered to:
+
+ 
+
+Cantor Fitzgerald & Co.
+
+499 Park Avenue
+
+New York, NY 10022
+
+Attention:  Capital Markets Facsimile:  (212) 307-3730
+
+ 
+
+and:
+
+ 
+
+Cantor Fitzgerald & Co.
+
+499 Park Avenue
+
+New York, NY 10022
+
+Attention:  General Counsel Facsimile:  (212) 829-4708
+
+ 
+
+with a copy to:
+
+ 
+
+Goodwin Procter LLP
+
+620 Eighth Avenue
+
+New York, NY 10018
+
+Attention:  Seo Salimi Facsimile:  (212) 656-1546
+
+ 
+
+and if to the Company, shall be delivered to:
+
+ 
+
+Ocugen, Inc.
+
+5 Great Valley Parkway, Suite 160
+
+Malvern, PA 19355
+
+Attention:  Sanjay S. Subramanian
+
+ 
+
+
+
+-35-
+
+ 
+
+ 
+
+with a copy to:
+
+ 
+
+Pepper Hamilton LLP
+
+3000 Two Logan Square
+
+Eighteenth and Arch Streets
+
+Philadelphia, PA 19103
+
+Attention:  Jennifer Porter Facsimile:  (215) 981-4750
+
+ 
+
+Each party to this Agreement may change such address for notices by sending to
+the parties to this Agreement written notice of a new address for such purpose.
+Each such notice or other communication shall be deemed given (i) when delivered
+personally or by verifiable facsimile transmission (with an original to follow)
+on or before 4:30 p.m., New York City time, on a Business Day or, if such day is
+not a Business Day, on the next succeeding Business Day, (ii) on the next
+Business Day after timely delivery to a nationally-recognized overnight courier
+and (iii) on the Business Day actually received if deposited in the U.S. mail
+(certified or registered mail, return receipt requested, postage prepaid). For
+purposes of this Agreement, “Business Day” shall mean any day on which the
+Exchange and commercial banks in the City of New York are open for business.
+
+ 
+
+An electronic communication (“Electronic Notice”) shall be deemed written notice
+for purposes of this Section 13 if sent to the electronic mail address specified
+by the receiving party under separate cover. Electronic Notice shall be deemed
+received at the time the party sending Electronic Notice receives verification
+of receipt by the receiving party. Any party receiving Electronic Notice may
+request and shall be entitled to receive the notice on paper, in a nonelectronic
+form (“Nonelectronic Notice”) which shall be sent to the requesting party within
+ten (10) days of receipt of the written request for Nonelectronic Notice.
+
+ 
+
+14.           Successors and Assigns. This Agreement shall inure to the benefit
+of and be binding upon the Company and the Agent and their respective successors
+and the parties referred to in Section 10 hereof. References to any of the
+parties contained in this Agreement shall be deemed to include the successors
+and permitted assigns of such party. Nothing in this Agreement, express or
+implied, is intended to confer upon any party other than the parties hereto or
+their respective successors and permitted assigns any rights, remedies,
+obligations or liabilities under or by reason of this Agreement, except as
+expressly provided in this Agreement. Neither party may assign its rights or
+obligations under this Agreement without the prior written consent of the other
+party; provided, however, that the Agent may assign its rights and obligations
+hereunder to an affiliate thereof without obtaining the Company’s consent so
+long as such affiliate is a registered broker dealer and the Agent provides
+advance notice of such assignment to the Company.
+
+ 
+
+15.           Adjustments for Stock Splits. The parties acknowledge and agree
+that all share-related numbers contained in this Agreement shall be adjusted to
+take into account any stock split, stock dividend or similar event effected with
+respect to the Placement Shares.
+
+ 
+
+16.           Entire Agreement; Amendment; Severability; Waiver. This Agreement
+(including all schedules and exhibits attached hereto and Placement Notices
+issued pursuant hereto) constitutes the entire agreement and supersedes all
+other prior and contemporaneous agreements and undertakings, both written and
+oral, among the parties hereto with regard to the subject matter hereof. Neither
+this Agreement nor any term hereof may be amended except pursuant to a written
+instrument executed by the Company and the Agent. In the event that any one or
+more of the provisions contained herein, or the application thereof in any
+circumstance, is held invalid, illegal or unenforceable as written by a court of
+competent jurisdiction, then such provision shall be given full force and effect
+to the fullest possible extent that it is valid, legal and enforceable, and the
+remainder of the terms and provisions herein shall be construed as if such
+invalid, illegal or unenforceable term or provision was not contained herein,
+but only to the extent that giving effect to such provision and the remainder of
+the terms and provisions hereof shall be in accordance with the intent of the
+parties as reflected in this Agreement. No implied waiver by a party shall arise
+in the absence of a waiver in writing signed by such party. No failure or delay
+in exercising any right, power, or privilege hereunder shall operate as a waiver
+thereof, nor shall any single or partial exercise thereof preclude any other or
+further exercise thereof or the exercise of any right, power, or privilege
+hereunder.
+
+ 
+
+
+
+-36-
+
+ 
+
+ 
+
+17.           GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL
+BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
+YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF
+DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE
+FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
+IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
+TRANSACTIONS CONTEMPLATED HEREBY.
+
+ 
+
+18.          CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
+THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY
+OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
+OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY
+IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
+ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
+COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
+OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
+HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
+BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
+(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE
+ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
+SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
+THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT
+TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
+
+ 
+
+19.           Counterparts. This Agreement may be executed in two or more
+counterparts, each of which shall be deemed an original, but all of which
+together shall constitute one and the same instrument. Delivery of an executed
+Agreement by one party to the other may be made by facsimile or electronic
+transmission.
+
+ 
+
+
+
+-37-
+
+ 
+
+ 
+
+20.           Construction. The section and exhibit headings herein are for
+convenience only and shall not affect the construction hereof. References herein
+to any law, statute, ordinance, code, regulation, rule or other requirement of
+any Governmental Authority shall be deemed to refer to such law, statute,
+ordinance, code, regulation, rule or other requirement of any Governmental
+Authority as amended, reenacted, supplemented or superseded in whole or in part
+and in effect from time to time and also to all rules and regulations
+promulgated thereunder.
+
+ 
+
+21.           Permitted Free Writing Prospectuses. The Company represents,
+warrants and agrees that, unless it obtains the prior written consent of the
+Agent, which shall not be unreasonably withheld, conditioned or delayed, and the
+Agent represents, warrants and agrees that, unless it obtains the prior written
+consent of the Company, which shall not be unreasonably withheld, conditioned or
+delayed, it has not made and will not make any offer relating to the Placement
+Shares that would constitute an Issuer Free Writing Prospectus, or that would
+otherwise constitute a “free writing prospectus,” as defined in Rule 405,
+required to be filed with the Commission. Any such free writing prospectus
+consented to by the Agent or by the Company, as the case may be, is hereinafter
+referred to as a “Permitted Free Writing Prospectus.” The Company represents and
+warrants that it has treated and agrees that it will treat each Permitted Free
+Writing Prospectus as an “issuer free writing prospectus,” as defined in
+Rule 433, and has complied and will comply with the requirements of Rule 433
+applicable to any Permitted Free Writing Prospectus, including timely filing
+with the Commission where required, legending and record keeping. For the
+purposes of clarity, the parties hereto agree that all free writing
+prospectuses, if any, listed in Exhibit 21 hereto are Permitted Free Writing
+Prospectuses.
+
+ 
+
+22.           Absence of Fiduciary Relationship. The Company acknowledges and
+agrees that:
+
+ 
+
+(a)               the Agent is acting solely as agent in connection with the
+public offering of the Placement Shares and in connection with each transaction
+contemplated by this Agreement and the process leading to such transactions, and
+no fiduciary or advisory relationship between the Company or any of its
+respective affiliates, stockholders (or other equity holders), creditors or
+employees or any other party, on the one hand, and the Agent, on the other hand,
+has been or will be created in respect of any of the transactions contemplated
+by this Agreement, irrespective of whether or not the Agent has advised or is
+advising the Company on other matters, and the Agent has no obligation to the
+Company with respect to the transactions contemplated by this Agreement except
+the obligations expressly set forth in this Agreement;
+
+ 
+
+(b)               it is capable of evaluating and understanding, and understands
+and accepts, the terms, risks and conditions of the transactions contemplated by
+this Agreement;
+
+ 
+
+(c)               neither the Agent nor its affiliates have provided any legal,
+accounting, regulatory or tax advice with respect to the transactions
+contemplated by this Agreement and it has consulted its own legal, accounting,
+regulatory and tax advisors to the extent it has deemed appropriate;
+
+ 
+
+(d)               it is aware that the Agent and its affiliates are engaged in a
+broad range of transactions which may involve interests that differ from those
+of the Company and the Agent and its affiliates have no obligation to disclose
+such interests and transactions to the Company by virtue of any fiduciary,
+advisory or agency relationship or otherwise; and
+
+ 
+
+
+
+-38-
+
+ 
+
+ 
+
+(e)               it waives, to the fullest extent permitted by law, any claims
+it may have against the Agent or its affiliates for breach of fiduciary duty or
+alleged breach of fiduciary duty in connection with the sale of Placement Shares
+under this Agreement and agrees that the Agent and its affiliates shall not have
+any liability (whether direct or indirect, in contract, tort or otherwise) to it
+in respect of such a fiduciary duty claim or to any person asserting a fiduciary
+duty claim on its behalf or in right of it or the Company, employees or
+creditors of the Company.
+
+ 
+
+23.           Definitions. As used in this Agreement, the following terms have
+the respective meanings set forth below:
+
+ 
+
+“Applicable Time” means (i) each Representation Date, (ii) the time of each sale
+of any Placement Shares pursuant to this Agreement and (iii) each Settlement
+Date.
+
+ 
+
+“Governmental Authority” means (i) any federal, provincial, state, local,
+municipal, national or international government or governmental authority,
+regulatory or administrative agency, governmental commission, department, board,
+bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body
+(public or private); (ii) any self-regulatory organization; or (iii) any
+political subdivision of any of the foregoing.
+
+ 
+
+“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
+defined in Rule 433, relating to the Placement Shares that (1) is required to be
+filed with the Commission by the Company, (2) is a “road show” that is a
+“written communication” within the meaning of Rule 433(d)(8)(i) whether or not
+required to be filed with the Commission, or (3) is exempt from filing pursuant
+to Rule 433(d)(5)(i) because it contains a description of the Placement Shares
+or of the offering that does not reflect the final terms, in each case in the
+form filed or required to be filed with the Commission or, if not required to be
+filed, in the form retained in the Company’s records pursuant to Rule 433(g)
+under the Securities Act Regulations.
+
+ 
+
+“Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
+“Rule 430B,” and “Rule 433” refer to such rules under the Securities Act
+Regulations.
+
+ 
+
+All references in this Agreement to financial statements and schedules and other
+information that is “contained,” “included” or “stated” in the Registration
+Statement or the Prospectus (and all other references of like import) shall be
+deemed to mean and include all such financial statements and schedules and other
+information that is incorporated by reference in the Registration Statement or
+the Prospectus, as the case may be. For purposes of clarity, any financial
+information that is furnished by the Company shall not be deemed incorporated by
+reference in the Registration Statement or the Prospectus.
+
+ 
+
+All references in this Agreement to the Registration Statement, the Prospectus
+or any amendment or supplement to any of the foregoing shall be deemed to
+include the copy filed with the Commission pursuant to EDGAR; all references in
+this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free
+Writing Prospectuses that, pursuant to Rule 433, are not required to be filed
+with the Commission) shall be deemed to include the copy thereof filed with the
+Commission pursuant to EDGAR; and all references in this Agreement to
+“supplements” to the Prospectus shall include, without limitation, any
+supplements, “wrappers” or similar materials prepared in connection with any
+offering, sale or private placement of any Placement Shares by the Agent outside
+of the United States.
+
+ 
+
+
+
+-39-
+
+ 
+
+ 
+
+ 
+
+[Signature Page Follows]
+
+ 
+
+ 
+
+ 
+
+
+
+-40-
+
+ 
+
+
+
+ 
+
+If the foregoing correctly sets forth the understanding between the Company and
+the Agent, please so indicate in the space provided below for that purpose,
+whereupon this letter shall constitute a binding agreement between the Company
+and the Agent.
+
+ 
+
+  Very truly yours,       OCUGEN, INC.             By: /s/ Shankar Musunuri    
+Name: Shankar Musunuri     Title: Chief Executive Officer and Chairman
+
+ 
+
+ 
+
+  ACCEPTED as of the date first-above written:           CANTOR FITZGERALD & CO.
+        By: /s/ Sage Kelly     Name: Sage Kelly     Title: Senior Managing
+Director, Global Head of Investment Banking
+
+ 
+
+
+
+ 
+
+ 
+
+SCHEDULE 1
+
+ 
+
+ 
+
+__________________________
+
+ 
+
+Form of Placement Notice
+
+ 
+
+__________________________
+
+ 
+
+ 
+
+From:Ocugen, Inc.
+
+ 
+
+To:Cantor Fitzgerald & Co.
+Attention: [__]
+
+ 
+
+Subject:Placement Notice
+
+ 
+
+Date:[__], 2020
+
+ 
+
+Ladies and Gentlemen:
+
+ 
+
+Pursuant to the terms and subject to the conditions contained in the Controlled
+Equity OfferingSM Sales Agreement between Ocugen, Inc., a Delaware corporation
+(the “Company”), and Cantor Fitzgerald & Co. (“Agent”), dated June 12, 2020, the
+Company hereby requests that the Agent sell up to $[__] of the Company’s common
+stock, par value $0.01 per share, at a minimum market price of $[__] per share,
+during the time period beginning [month, day, time] and ending [month, day,
+time].
+
+ 
+
+ 
+
+ 
+
+
+
+ 
+
+ 
+
+SCHEDULE 2
+
+ 
+
+ 
+
+__________________________
+
+ 
+
+Compensation
+
+ 
+
+__________________________
+
+ 
+
+ 
+
+The Company shall pay to the Agent in cash, upon each sale of Placement Shares
+pursuant to this Agreement, an amount equal to 3.0% of the aggregate gross
+proceeds from each sale of Placement Shares.
+
+ 
+
+ 
+
+ 
+
+
+
+ 
+
+ 
+
+Exhibit 21
+
+ 
+
+Permitted Free Writing Prospectus
+
+ 
+
+None.
+
+ 
+
+ 
+
+ 
+
+
+
+
+--------------------------------------------------------------------------------
+
+Exhibit 2.1
+
+
+
+AGREEMENT AND PLAN OF MERGER
+ 
+among
+ 
+BENEFYTT TECHNOLOGIES, INC.,
+ 
+DAYLIGHT BETA PARENT CORP.
+ 
+and
+ 
+DAYLIGHT BETA CORP.
+ 
+Dated as of July 12, 2020
+
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+ 
+
+ 
+Page
+ 
+ARTICLE I
+THE OFFER; THE MERGER; CLOSING; EFFECTIVE TIME
+ 
+1.1
+The Offer
+2
+1.2
+The Merger
+8
+1.3
+Closing
+8
+1.4
+Effective Time
+8
+ 
+ARTICLE II
+ORGANIZATIONAL DOCUMENTS OF THE SURVIVING CORPORATION
+ 
+2.1
+The Certificate of Incorporation
+9
+2.2
+The Bylaws
+9
+ 
+ARTICLE III
+DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
+ 
+3.1
+Directors of Surviving Corporation
+9
+3.2
+Officers of the Surviving Corporation
+9
+ 
+ARTICLE IV
+EFFECT OF THE MERGER ON SECURITIES; EXCHANGE
+ 
+4.1
+Effect on Capital Stock
+9
+4.2
+Surrender and Exchange of Shares
+10
+4.3
+Dissenters’ Rights
+13
+4.4
+Adjustments
+13
+4.5
+Treatment of Equity Awards
+13
+ 
+ARTICLE V
+REPRESENTATIONS AND WARRANTIES
+ 
+5.1
+Representations and Warranties of the Company
+15
+5.2
+Representations and Warranties of Parent and Merger Sub
+34
+ 
+ARTICLE VI
+COVENANTS
+ 
+6.1
+Interim Operations
+41
+6.2
+Acquisition Proposals
+45
+6.3
+[Reserved.]
+50
+6.4
+[Reserved.]
+50
+6.5
+Reasonable Best Efforts
+50
+6.6
+Access; Consultation
+53
+6.7
+Stock Exchange De-listing and De-registration
+55
+6.8
+Publicity
+55
+
+
+
+i
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+(cont.)
+
+
+
+    Page      
+6.9
+Employee Benefits
+55
+6.10
+Expenses
+57
+6.11
+Indemnification; Directors’ and Officers’ Insurance
+57
+6.12
+Takeover Statute
+59
+6.13
+Control of the Company’s or Parent’s Operations
+59
+6.14
+Section 16(b)
+59
+6.15
+Financing
+60
+6.16
+Approval by Sole Stockholder of Merger Sub
+64
+6.17
+Stockholder Litigation
+64
+6.18
+Rule 14d-10 Matters
+64
+6.19
+Consummation of Exchange
+65
+ 
+ARTICLE VII
+CONDITIONS
+ 
+7.1
+Conditions to Each Party’s Obligation to Effect the Merger
+65
+ 
+ARTICLE VIII
+TERMINATION
+ 
+8.1
+Termination by Mutual Consent
+65
+8.2
+Termination by Either Parent or the Company
+65
+8.3
+Termination by the Company
+66
+8.4
+Termination by Parent
+67
+8.5
+Effect of Termination and Abandonment
+67
+ 
+ARTICLE IX
+MISCELLANEOUS AND GENERAL
+ 
+9.1
+Survival
+69
+9.2
+Modification or Amendment
+70
+9.3
+Waiver
+70
+9.4
+Counterparts; Effectiveness
+70
+9.5
+Governing Law and Venue; Waiver of Jury Trial
+70
+9.6
+Notices
+72
+9.7
+Entire Agreement
+73
+9.8
+No Third-Party Beneficiaries; Non-Recourse
+74
+9.9
+Obligations of Parent and of the Company
+75
+9.10
+Severability
+75
+9.11
+Interpretation
+75
+9.12
+Assignment
+76
+9.13
+Specific Performance
+76
+9.14
+Definitions
+78
+
+
+
+ii
+
+--------------------------------------------------------------------------------
+
+INDEX OF DEFINED TERMS
+ 
+Defined Term
+Section
+   
+Acceptable Confidentiality Agreement
+9.14
+Acquisition Proposal
+6.2(d)
+Action
+9.5(b)
+Affiliate
+9.14
+Agreement
+Preamble
+Alternative Acquisition Agreement
+6.2(e)
+Alternative Financing
+6.15(e)
+Alternative Financing Commitments
+6.15(e)
+Antitrust Laws
+9.14
+Applicable Date
+5.1(e)(i)
+Balance Sheet Date
+5.1(f)(i)
+Bank Commitment Letter
+5.2(g)(ii)
+Bank Financing
+5.2(g)(ii)
+Bankruptcy and Equity Exception
+5.1(c)
+BofA
+5.1(s)
+Business Day
+9.14
+Bylaws
+2.2
+Capitalization Date
+5.1(b)(i)
+CBA
+5.1(i)(i)
+Certificate
+4.1(a)(i)
+Certificate of Incorporation
+2.1
+Certificate of Merger
+1.4
+Change
+9.14
+Change in Recommendation
+6.2(e)
+Class A Shares
+Recitals
+Class B Shares
+Recitals
+Closing
+1.3
+Closing Date
+1.3
+Code
+4.2(f)
+Commitment Letters
+5.2(g)(iii)
+Company
+Preamble
+Company Bylaws
+5.1(d)(ii)
+Company Certificate of Incorporation
+5.1(d)(ii)
+Company Disclosure Letter
+5.1
+Company Equity Awards
+9.14
+Company IP
+5.1(o)(ii)
+Company Material Adverse Effect
+9.14
+Company Option
+4.5(a)
+Company Plan
+5.1(h)(i)
+Company Recommendation
+5.1(c)
+Company Related Parties
+8.5(g)
+Company Reports
+5.1(e)(i)
+Company Required Regulatory Law Filings
+5.1(d)(i)
+Company SAR
+4.5(b)
+
+
+
+iii
+
+--------------------------------------------------------------------------------
+
+Defined Term
+Section
+   
+Company Securities
+5.2(b)(iii)
+Company Restricted Stock Award
+9.14
+Company Stock Plan
+4.5(a)
+Company Systems
+1.4
+Company Termination Fee
+8.5(b)
+Confidentiality Agreement
+9.14
+Continuation Period
+6.9(a)
+Continuing Employee
+6.9(a)
+Contract
+9.14
+D&O Insurance
+6.11(b)
+Debt Commitment Letter
+5.2(g)(ii)
+Debt Commitment Parties
+5.2(g)(ii)
+Debt Financing
+5.2(g)(ii)
+Debt Payoff
+5.2(g)(i)
+DGCL
+Recitals
+Dissenting Shares
+1.4
+Dissenting Stockholders
+9.14
+Effective Time
+1.4
+Environmental Law
+9.14
+Equity Commitment Letter
+5.2(g)(iii)
+Equity Financing
+5.2(g)(iii)
+Equity Investor
+5.2(g)(iii)
+ERISA
+5.1(h)(i)
+ERISA Affiliate
+1.4
+Exchange Act
+5.1(d)(i)
+Exchange Agreement
+Recitals
+Exchange Fund
+4.2(a)
+Excluded Shares
+4.1(a)(i)
+Existing Credit Facility
+9.14
+Existing Exchange Agreement
+9.14
+Expiration Date
+1.1(c)
+Extension Deadline
+1.1(d)(ii)
+FCPA
+5.1(j)(iii)
+Federal Health Care Program
+5.1(p)(ii)(A)
+Financial Advisor
+6.2(b)
+Financing
+5.2(g)(iii)
+Founder Exchange and Tender
+Recitals
+GAAP
+9.14
+Governmental Entity
+9.14
+Guarantor
+Recitals
+Hazardous Substance
+9.14
+Health Care Permits
+9.14
+Health Regulatory Laws
+9.14
+Holdings
+Recitals
+HIPAA
+5.1(p)(iv)
+
+
+
+iv
+
+--------------------------------------------------------------------------------
+
+Defined Term
+Section
+   
+HSR Act
+5.1(d)(i)
+Indebtedness
+9.14
+Indemnified Parties
+6.11(a)
+Initial Expiration Date
+1.1(c)
+Intellectual Property
+9.14
+Intervening Event
+6.2(d)
+IRS
+5.1(h)(iii)
+Issuer
+5.2(g)(ii)
+Knowledge of the Company
+9.14
+Knowledge of Parent
+9.14
+Law
+9.14
+Lease
+5.1(q)
+Leased Real Property
+5.1(q)
+Lender
+5.2(g)(ii)
+Licenses
+5.1(j)(ii)
+Lien
+9.14
+Limited Guarantee
+Recital
+Material Contracts
+5.1(k)(i)
+Merger
+Recitals
+Merger Consideration
+4.1(a)(i)
+Merger Sub
+Preamble
+Merger Sub Share
+4.1(b)
+NASDAQ
+9.14
+Offer
+Recitals
+Offer Acceptance Time
+1.1(g)(ii)
+Offer Acceptance Consideration
+1.1(g)(ii)
+Offer Closing
+1.1(g)(ii)
+Offer Commencement Date
+1.1(f)
+Offer Conditions
+1.1(b)
+Offer Documents
+1.1(f)
+Offer Price
+Recitals
+Offer to Purchase
+1.1(f)
+Open Source Software
+9.14
+Operating Agreement
+9.14
+Option Payment
+4.5(a)
+Orders
+5.1(g)(i)
+Parent
+Preamble
+Parent Disclosure Letter
+5.2
+Parent Material Adverse Effect
+9.14
+Parent Plan
+6.9(b)
+Parent Related Parties
+8.5(g)
+Parent Required Regulatory Law Filings
+5.2(d)
+Parent Termination Fee
+8.5(d)
+Paying Agent
+4.2(a)
+Permitted Liens
+9.14
+
+
+
+v
+
+--------------------------------------------------------------------------------
+
+Defined Term
+Section
+   
+Person
+9.14
+Personal Data
+9.14
+Post-Closing Company Required Regulatory Law Filings
+5.1(d)(i)
+Pre-Closing Company Required Regulatory Law Filings
+5.1(d)(i)
+Pre-Closing Period
+6.1(a)
+Preferred Shares
+5.1(b)(i)
+Proceedings
+9.14
+Registered IP
+5.1(o)(i)
+Regulatory Actions
+6.5(e)
+Representatives
+6.2(a)(i)
+Required Financing Amount
+5.2(g)(i)
+Required Regulatory Law Filings
+5.2(d)
+SAR Payment
+4.5(b)
+Sarbanes-Oxley Act
+5.1(e)(i)
+Schedule TO
+1.1(f)(i)
+Schedule 14D-9
+1.1(h)(i)
+SEC
+5.1(e)(i)
+Second Request
+6.5(c)
+Securities Act
+5.1(d)(i)
+Series B Units
+Recitals
+Shares
+Recitals
+Stockholder List Date
+1.1(i)
+Subsidiary
+9.14
+Superior Proposal
+6.2(d)
+Support Agreements
+Recitals
+Surviving Corporation
+1.2
+Takeover Statute
+5.1(l)
+Tax
+9.14
+Tax Receivable Agreement
+9.14
+Tax Return
+9.14
+Taxable
+9.14
+Taxes
+9.14
+Termination Date
+8.2(a)
+Transaction Documents
+9.14
+Uncertificated Shares
+4.1(a)(i)
+WARN Act
+5.1(i)(ii)
+Willful Breach
+9.14
+
+
+
+vi
+
+--------------------------------------------------------------------------------
+
+AGREEMENT AND PLAN OF MERGER
+ 
+This AGREEMENT AND PLAN OF MERGER (this “Agreement”), is entered into as of July
+12, 2020, by and among Benefytt Technologies, Inc., a Delaware corporation (the
+“Company”), Daylight Beta Parent Corp., a Delaware corporation (“Parent”), and
+Daylight Beta Corp., a Delaware corporation and a direct wholly owned Subsidiary
+of Parent (“Merger Sub”).
+ 
+RECITALS
+ 
+WHEREAS, pursuant to this Agreement, Merger Sub has agreed to commence a cash
+tender offer, on the terms and subject to the conditions of this Agreement (as
+it may be extended and amended from time to time as permitted under this
+Agreement, the “Offer”), to acquire (subject to the Minimum Condition and other
+conditions set forth in Annex I) any and all of (i) the outstanding shares of
+Class A Common Stock, par value $0.001 per share, of the Company (the “Class A
+Shares”), for $31.00 per share (such amount per share, or any different amount
+per share to be paid pursuant to the Offer to the extent permitted under this
+Agreement, being the “Offer Price”), net to the Person tendering such Class A
+Shares in cash, without interest, and (ii) the outstanding shares of Class B
+Common Stock, par value $0.001 per share, of the Company (the “Class B Shares”
+and, together with the Class A Shares, the “Shares”), for $0.00 per share;
+ 
+WHEREAS, as soon as practicable following the consummation of the Offer, Merger
+Sub shall be merged with and into the Company (the “Merger”), which Merger will
+be governed by Section 251(h) of the Delaware General Corporation Law (the
+“DGCL”), with the Company surviving the Merger as the surviving corporation and
+becoming a wholly owned subsidiary of Parent, upon the terms and subject to the
+conditions set forth in this Agreement, and each Class A Share that is not
+tendered and accepted pursuant to the Offer (other than shares canceled pursuant
+to Section 4.1(a)(iii) hereof) will thereupon be canceled and converted into the
+right to receive cash in an amount equal to the Offer Price, without interest;
+ 
+WHEREAS, the board of directors of the Company has (i) approved this Agreement
+and the consummation of the transactions contemplated hereby, including the
+Offer and the Merger, upon the terms and subject to the conditions set forth in
+this Agreement, (ii) declared this Agreement advisable and determined that it is
+in the best interests of the Company and its stockholders to enter into this
+Agreement and (iii) resolved, subject to the terms and conditions hereof, to
+recommend that the stockholders of the Company accept the Offer and tender their
+Class A Shares to Merger Sub pursuant to the Offer;
+ 
+WHEREAS, the board of directors of Parent has (i) approved and adopted this
+Agreement and the consummation of the transactions contemplated hereby, upon the
+terms and subject to the conditions set forth in this Agreement, and (ii)
+determined that it is in the best interests of Parent and its stockholders to
+enter into this Agreement;
+ 
+WHEREAS, the board of directors of Merger Sub has (i) approved this Agreement
+and the consummation of the transactions contemplated hereby, including the
+Offer and the Merger, upon the terms and subject to the conditions set forth in
+this Agreement, and (ii) declared this Agreement advisable and determined that
+it is in the best interests of Merger Sub and its stockholder to enter into this
+Agreement;
+ 
+
+--------------------------------------------------------------------------------
+
+WHEREAS, concurrently herewith, as a material inducement to Parent’s willingness
+to enter into this Agreement, certain holders of Class B Shares are entering
+into an Exchange Agreement (the “Exchange Agreement”), with the Company, Parent,
+and Health Plan Intermediaries Holdings, LLC (“Holdings”), pursuant to which,
+among other things, on or prior to the Expiration Date, (x) such holders’ Series
+B Membership Interests of Holdings (the “Series B Units”) will be exchanged for
+Class A Shares and such holders’ Class B Shares will be automatically cancelled
+and (y) such holders will thereafter tender all Shares held or controlled by
+such holders and their Affiliates pursuant to the Offer (which following such
+exchange will be comprised solely of Class A Shares) (the “Founder Exchange and
+Tender”);
+ 
+WHEREAS, concurrently with the execution of this Agreement, and as a condition
+and inducement to the Company’s willingness to enter into this Agreement, Parent
+and Merger Sub have delivered to the Company (i) the Financing Commitments and
+(ii) a limited guarantee (the “Limited Guarantee”) from Madison Dearborn Capital
+Partners VIII-A, L.P, Madison Dearborn Capital Partners VIII-C, L.P., Madison
+Dearborn Capital Partners VIII Executive-A, L.P., each a Delaware limited
+partnership (collectively, the “Guarantors”), in favor of the Company and
+pursuant to which, subject to the terms and conditions set forth therein, the
+Guarantors guarantee certain obligations of Parent and Merger Sub in connection
+with this Agreement;
+ 
+WHEREAS, concurrently with the execution and delivery of this Agreement, as a
+material inducement to Parent’s willingness to enter into this Agreement,
+certain of the Company’s shareholders will enter into tender and support
+agreements in the form attached hereto as Exhibit A (the “Support Agreements”)
+with Parent, pursuant to which, among other things, such Company shareholders
+agree to tender all of the Class A Shares owned or controlled by such
+shareholders pursuant to the Offer; and
+ 
+WHEREAS, the Company, Parent and Merger Sub desire to make certain
+representations, warranties, covenants and agreements in connection with this
+Agreement.
+ 
+NOW, THEREFORE, in consideration of the premises, and of the representations,
+warranties, covenants and other agreements contained herein, the receipt and
+sufficiency of which is acknowledged and agreed, the parties hereto agree as
+follows:
+ 
+ARTICLE I
+
+THE OFFER; THE MERGER; CLOSING; EFFECTIVE TIME
+ 
+1.1         The Offer.
+ 
+(a)          Commencement of the Offer. Merger Sub shall, and Parent shall cause
+Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange
+Act) the Offer no event later than ten (10) Business Days after the date of this
+Agreement.
+ 
+2
+
+--------------------------------------------------------------------------------
+
+(b)         Conditions of the Offer. The obligation of Merger Sub to (and of
+Parent to cause Merger Sub to) accept for payment, and pay for, any and all
+Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall
+be subject to the terms and conditions of this Agreement, including the
+satisfaction (or to the extent waivable, the waiver by Parent or Merger Sub in
+their sole discretion) of the conditions set forth in Annex I (as they may be
+amended from time to time in accordance with this Agreement, collectively, the
+“Offer Conditions”) and not to any other conditions.  Merger Sub expressly
+reserves the right, at any time, to (i) increase the Offer Price, (ii) waive any
+Offer Condition or (iii) make any other changes to the terms and conditions of
+the Offer not inconsistent with the terms of this Agreement; provided, however,
+that without the prior written consent of the Company: (A) the Minimum Condition
+may not be amended or waived, (B) Merger Sub shall not decrease the Offer Price
+and (C) no change may be made to the Offer that (1) changes the form of
+consideration to be delivered by Merger Sub pursuant to the Offer, (2) reduces
+the number of Class A Shares to be purchased in the Offer to less than that
+required to satisfy the Minimum Condition, (3) imposes conditions or
+requirements to the Offer in addition to the Offer Conditions, (4) except as
+provided in this Section 1.1, terminates the Offer or accelerates, extends or
+otherwise changes the Expiration Date of the Offer, (5) otherwise amends or
+modifies any of the other terms of the Offer in a manner that adversely affects
+any holder of Class A Shares or that would, individually or in the aggregate,
+reasonably be expected to prevent or materially delay the consummation of the
+Offer or prevent, materially delay or materially impair the ability of Parent or
+Merger Sub to consummate the Offer, the Merger or the other Transactions, or (6)
+provide any “subsequent offering period” within the meaning of Rule 14d-11
+promulgated under the Exchange Act.  The Offer may not be withdrawn prior to the
+Expiration Date (or any rescheduled or extended Expiration Date) of the Offer,
+unless this Agreement is terminated in accordance with Article VIII.
+ 
+(c)          Expiration of the Offer. The Offer shall initially be scheduled to
+expire at one minute after 11:59 p.m., Eastern Time on the date that is twenty
+(20) Business Days (determined as set forth in Rule 14d-1(g)(3) and Rule
+14e-1(a) under the Exchange Act) following the Offer Commencement Date (the
+“Initial Expiration Date”, and such date or such subsequent date to which the
+Initial Expiration Date of the Offer is extended in accordance with the terms of
+this Agreement, the “Expiration Date”).
+ 
+(d)          Extension of the Offer.
+ 
+(i)           Notwithstanding anything in this Agreement to the contrary, unless
+this Agreement has been terminated in accordance with Article VIII and subject
+to Section 1.1(d)(ii):
+ 
+(A)         if, as of the then-scheduled Expiration Date, any Offer Condition is
+not satisfied and has not been waived by Merger Sub or Parent, to the extent
+waivable by Merger Sub or Parent, Merger Sub shall, and Parent shall cause
+Merger Sub to, extend the Offer on one or more occasions, for an additional
+period of up to ten (10) Business Days per extension (or such longer period per
+extension as the Parties may agree), to permit all Offer Conditions to be
+satisfied; provided that if the sole then-unsatisfied Offer Condition (other
+than those conditions that by their terms are to be satisfied at the Offer
+Acceptance Time) is the Minimum Condition, Merger Sub shall not be required to
+extend the Offer on more than two (2) occasions for an additional period of ten
+(10) Business Days each (but may in its sole discretion elect to extend the
+Offer in excess of two (2) occasions);
+ 
+3
+
+--------------------------------------------------------------------------------
+
+(B)          Merger Sub shall, and Parent shall cause Merger Sub to, extend the
+Offer from time to time for the minimum period required by any Law, any
+interpretation or position of the SEC, the staff thereof or any rules and
+regulations of Nasdaq applicable to the Offer (including in order to comply with
+Rule 14e-1(b) promulgated under the Exchange Act in respect of any change in the
+Offer Price); and
+ 
+(C)         if, as of any scheduled Expiration Date (x) all of the Offer
+Conditions have been satisfied or waived (other than those conditions that by
+their nature are to be satisfied at the Offer Acceptance Time, but each of which
+would be satisfied if the Offer Acceptance Time were to then occur), (y) the
+full amount of the Debt Financing necessary to pay the Required Financing Amount
+has not been funded and will not be available to be funded at the Offer Closing
+and at the Closing and (z) Parent and Merger Sub acknowledge and agree in
+writing that all Offer Conditions set forth in paragraphs (d) and (h) of Annex I
+will be deemed satisfied or waived at the Expiration Time of the Offer after
+giving effect to the extension pursuant to this Section 1.1(d)(i)(C) (if such
+Offer Conditions were actually satisfied at the time of such extension), Merger
+Sub may extend the Offer for successive periods of up to five (5) Business Days
+per extension (or such longer period per extension as the Parties may agree),
+with each such period to end one minute after 11:59 p.m., Eastern Time on the
+last Business Day of such period, in order to permit the funding of the full
+amount of the Debt Financing necessary to pay the Required Financing Amount,
+provided, that Merger Sub shall not be permitted to extend the Offer to a date
+later than the Termination Date and provided, further, that for the avoidance of
+doubt, no extension pursuant to this Section 1.1(d)(i)(C) shall preclude the
+Company from exercising any right to terminate this Agreement pursuant to
+Section 8.3(c)
+ 
+(ii)          In no event shall Merger Sub: (i) be required to extend the Offer
+beyond the earlier to occur of (A) the valid termination of this Agreement in
+compliance with Article VIII and (B) the Termination Date (such earlier
+occurrence, the “Extension Deadline”) or (ii) without the prior written consent
+of the Company, be permitted to extend the Offer beyond the Extension Deadline.
+ 
+(e)          Termination of the Offer. Merger Sub shall not, and Parent shall
+cause Merger Sub not to, terminate or withdraw the Offer prior to any scheduled
+Expiration Date without the prior written consent of the Company, except if this
+Agreement is terminated pursuant to Article VIII.  If this Agreement is validly
+terminated pursuant to Article VIII, Merger Sub shall, and Parent shall cause
+Merger Sub to, promptly and unconditionally terminate the Offer and not acquire
+any Shares pursuant thereto, and Merger Sub shall, and Parent shall cause Merger
+Sub to, promptly return, and shall cause any depository acting on behalf of
+Merger Sub to return, in accordance with applicable Laws, all tendered Shares to
+the registered holders thereof.
+ 
+(f)          Offer Documents.
+ 
+4
+
+--------------------------------------------------------------------------------
+
+(i)          On the date of the commencement of the Offer (the “Offer
+Commencement Date”) Parent and Merger Sub shall: (i) file with the SEC, in
+accordance with Rule 14d-3 promulgated under the Exchange Act, a Tender Offer
+Statement on Schedule TO (together with all amendments, supplements and exhibits
+thereto, the “Schedule TO”) with respect to the Offer, which will contain or
+incorporate by reference: (A) Merger Sub’s offer to purchase Shares pursuant to
+the Offer (the “Offer to Purchase”), and (B) forms of the related letter of
+transmittal, summary advertisement and other ancillary Offer documents and (ii)
+cause the Offer to Purchase and related documents to be disseminated to holders
+of Shares as and to the extent required by the United States securities laws and
+the rules and regulations of the SEC promulgated thereunder.  Parent and Merger
+Sub shall cause the Schedule TO, and all exhibits, amendments and supplements
+thereto (including the Offer to Purchase and forms of the letter of transmittal,
+summary advertisement and other ancillary Offer documents) (such Schedule TO and
+the documents included therein pursuant to which the Offer will be made,
+together with any amendments and supplements thereto, collectively, the “Offer
+Documents”), to comply in all material respects with the applicable requirements
+of the Exchange Act and the Securities Act, as applicable, and the rules and
+regulations thereunder and to not contain any untrue statement of a material
+fact or omit to state any material fact required to be stated therein or
+necessary in order to make the statements therein, in light of the circumstances
+under which they were made, not misleading; provided, however, that no covenant
+is made by Parent or Merger Sub with respect to information supplied by or on
+behalf of the Company for inclusion or incorporation by reference in the Offer
+Documents. Unless a Company Board Recommendation Change has been effected
+pursuant to Section 6.2(d) or 6.2(f) prior to the dissemination of the Offer
+Documents, Parent and Merger Sub shall be entitled to include the Company Board
+Recommendation in the Offer Documents.
+ 
+(ii)         Each of Parent, Merger Sub and the Company: (i) shall take actions
+within its control to promptly respond to any comments (including oral comments)
+it receives from the SEC or its staff with respect to the Offer Documents or the
+Offer and (ii) to the extent required by the applicable requirements of United
+States securities laws and the rules and regulations of the SEC promulgated
+thereunder, promptly correct any information provided by it for use in the Offer
+Documents to the extent such information shall be or shall have become false or
+misleading in any material respect and Parent and Merger Sub shall take all
+steps necessary to cause the Offer Documents, as supplemented or amended to
+correct such information, to be filed with the SEC and, to the extent required
+by the United States securities laws and the rules and regulations of the SEC
+promulgated thereunder, to be disseminated to holders of Shares.
+ 
+(iii)        The Company and its legal counsel shall be given reasonable
+opportunity to review and comment on the Offer Documents (including all
+amendments and supplements thereto and including any response to any comments
+(including oral comments) of the SEC or its staff with respect thereto) prior to
+the filing thereof with the SEC and Parent and Merger Sub shall give good faith
+consideration to any such comments timely made by the Company or its counsel.
+Parent and Merger Sub shall promptly provide the Company and its legal counsel
+with a copy or a description of any comments (including oral comments) received
+by Parent, Merger Sub or their legal counsel from the SEC or its staff with
+respect to the Offer Documents.
+ 
+5
+
+--------------------------------------------------------------------------------
+
+(iv)        The Company shall promptly furnish to Parent and Merger Sub all
+information concerning the Company or any of its Subsidiaries and the Company’s
+stockholders that may be required or reasonably requested in connection with the
+Offer Documents or any action contemplated by this Section 1.1(f).
+ 
+(g)          Additional Parent Actions.
+ 
+(i)          Parent shall cause Merger Sub to perform, on a timely basis, all of
+Merger Sub’s obligations under this Agreement.
+ 
+(ii)          On the terms and subject to the conditions of the Offer and this
+Agreement, including the satisfaction or, to the extent waivable by Merger Sub
+or Parent, waiver by Merger Sub or Parent of each of the Offer Conditions,
+Merger Sub shall (and Parent shall cause Merger Sub to) (A) promptly (and no
+later than the next Business Day) after the Expiration Date irrevocably accept
+for payment all Shares tendered (and not validly withdrawn) pursuant to the
+Offer (the time of such acceptance, the “Offer Acceptance Time”) and (B) as
+promptly as practicable after the Offer Acceptance Time, pay for such Shares
+(such aggregate amount, the “Offer Acceptance Consideration” and the time of
+payment for such Shares, the “Offer Closing”), in each case, in the manner
+provided in Section 4.2(a).  In the case of Class A Shares, the Offer Price
+shall, subject to applicable withholding of Taxes, be paid net to the seller in
+cash, without interest, upon the terms and subject to the conditions of the
+Offer.
+ 
+(h)          Additional Company Actions.
+ 
+(i)         As promptly as practicable after the commencement of the Offer,
+following the filing of the Schedule TO (and in any event within one (1)
+Business Day after the filing of the Schedule TO), the Company shall file with
+the SEC and disseminate to holders of Shares, in each case as and to the extent
+permitted by applicable United States securities laws, the
+Solicitation/Recommendation Statement on Schedule 14D-9 (together with any
+amendments or supplements thereto, the “Schedule 14D-9”) that shall reflect the
+terms and conditions of this Agreement and, subject to Section 6.2, shall
+include the Company Board Recommendation. The Company shall also include in the
+Schedule 14D-9 a notice of appraisal rights, in compliance with Section 262 of
+the DGCL, that includes a description of the procedures for the holders of
+Dissenting Shares to demand an appraisal of such Dissenting Shares in accordance
+with the DGCL.
+ 
+(ii)         The Company shall cause (A) the Schedule 14D-9 and the filing and
+dissemination thereof to comply in all material respects with the Exchange Act
+and other applicable Laws and (B) the Schedule 14D-9 to not contain any untrue
+statement of a material fact or omit to state any material fact required to be
+stated therein or necessary in order to make the statements therein, in light of
+the circumstances under which they were made, not misleading, and (C) the
+information with respect to the Company that the Company furnishes to Parent or
+Merger Sub specifically for use in the Schedule TO and the Offer Documents, at
+the time of the filing of the Schedule TO and at the time of any distribution or
+dissemination of the Offer Documents, to not contain any untrue statement of a
+material fact or omit to state any material fact required to be stated therein
+or necessary in order to make the statements made therein, in light of the
+circumstances under which they were made, not misleading; provided, however,
+that no covenant is made by the Company with respect to information supplied by
+or on behalf of Parent or Merger Sub for inclusion or incorporation by reference
+in the Schedule 14D-9.
+ 
+6
+
+--------------------------------------------------------------------------------
+
+(iii)        Each of Parent, Merger Sub and the Company: (A) shall take actions
+within its control to promptly respond to any comments (including oral comments)
+of the SEC or its staff with respect to the Schedule 14D-9 and (B) to the extent
+required by the applicable requirements of United States securities laws and the
+rules and regulations of the SEC promulgated thereunder, shall promptly correct
+any information provided by it for use in the Schedule 14D-9 to the extent such
+information shall be or shall have become false or misleading in any material
+respect and the Company shall take all steps necessary to cause the Schedule
+14D-9, as supplemented or amended to correct such information, to be filed with
+the SEC and, to the extent required by the United States securities laws and the
+rules and regulations of the SEC promulgated thereunder, to be disseminated to
+holders of Shares.
+ 
+(iv)        Parent and its legal counsel shall be given reasonable opportunity
+to review and comment on the Schedule 14D-9 (including all amendments and
+supplements thereto and including any response to any comments (including oral
+comments) of the SEC or its staff with respect thereto) prior to the filing
+thereof with the SEC and the Company shall give good faith consideration to any
+such comments timely made by the Parent or its counsel.  The Company shall
+promptly provide Parent and its legal counsel with a copy or a description of
+any comments (including oral comments) received by the Company or its legal
+counsel from the SEC or its staff with respect to the Schedule 14D-9.
+ 
+(v)         Parent and Merger Sub shall promptly furnish or otherwise make
+available to the Company or the Company’s legal counsel all information
+concerning Parent or Merger Sub that may be required or reasonably requested in
+connection with the Schedule 14D-9 or any action contemplated by Section 1.1(h).
+ 
+(i)          Stockholder Lists. In connection with the Offer, the Company shall
+promptly (and in any event within three (3) Business Days after the date of this
+Agreement) provide to Parent: (a) a list of the Company’s stockholders,
+non-objecting beneficial owners, mailing labels and any available listing or
+computer file containing the names and addresses of all record holders of Shares
+and lists of securities positions of Shares held in stock depositories, in each
+case accurate and complete as of the most recent practicable date (the date of
+the list used to determine the Persons to whom the Offer Documents and the
+Schedule 14D-9 are first disseminated, the “Stockholder List Date”) and (b) such
+additional information (including updated lists of stockholders, non-objecting
+beneficial owners, mailing labels and lists of securities positions) as Parent
+may reasonably request in connection with the Offer or the Merger.  Prior to the
+filing with the SEC of the Schedule 14D-9, the Company shall set the Stockholder
+List Date as the record date for the purpose of receiving the notice required by
+Section 262(d)(2) of the DGCL.  Subject to applicable Laws, and except for such
+steps as are necessary to disseminate the Offer Documents and any other
+documents or as otherwise determined by Parent advisable or necessary to
+consummate the Transactions, Parent and Merger Sub and their agents shall hold
+in confidence the information contained in any such labels, listings and files,
+shall use such information only in connection with the Offer and the Merger and,
+if this Agreement shall be terminated, shall, upon request by the Company,
+deliver, and shall use their reasonable best efforts to cause their agents to
+deliver, to the Company (or destroy) all copies and any extracts or summaries
+from such information then in their possession or control, and, if requested by
+the Company, promptly certify to the Company in writing that all such material
+has been returned or destroyed.
+ 
+7
+
+--------------------------------------------------------------------------------
+
+1.2         The Merger.  Upon the terms and subject to the conditions set forth
+in this Agreement and in accordance with Section 251(h) of the DGCL, at the
+Effective Time, Merger Sub shall be merged with and into the Company and the
+separate corporate existence of Merger Sub shall thereupon cease.  The Company
+shall be the surviving corporation in the Merger (in such capacity, sometimes
+hereinafter referred to as the “Surviving Corporation”), and become a wholly
+owned Subsidiary of Parent, and the separate corporate existence of the Company
+with all its rights, privileges, immunities, powers and franchises shall
+continue unaffected by the Merger, except as set forth in Article II.  The
+Merger shall have the effects specified in the DGCL, this Agreement and the
+Certificate of Merger.  The Merger shall be governed by Section 251(h) of the
+DGCL.  As promptly as practicable on the Closing Date following the consummation
+of the Offer, the Parties shall take all necessary and appropriate actions to
+cause the Merger to become effective without a meeting of the stockholders of
+the Company, in accordance with Section 251(h) of the DGCL.
+ 
+1.3         Closing.  The closing of the Merger (the “Closing”) shall take place
+at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New
+York 10153 as soon as practicable following the consummation (as defined in
+Section 251(h) of the DGCL) of the Offer on the same date as such consummation
+(or on a different date and at time to be specified by Parent, which shall be no
+later than two (2) Business Days following the day on which the last of the
+conditions set forth in Article VII (other than those conditions that by their
+terms are to be satisfied at the Closing, but subject to the satisfaction or
+waiver of those conditions at the Closing) shall have been satisfied or waived
+in accordance with this Agreement), or at such other place and/or on such other
+date or at such other time as the Company and Parent may otherwise agree in
+writing (the date on which the Closing occurs, the “Closing Date”).
+ 
+1.4         Effective Time. At the Closing, the Company and Parent will cause a
+duly executed Certificate of Merger with respect to the Merger (the “Certificate
+of Merger”) to be filed with the Secretary of State of the State of Delaware as
+provided in the DGCL. The Merger shall become effective at the time when the
+Certificate of Merger has been duly filed with the Secretary of State of the
+State of Delaware or at such other date or time as the Company and Parent shall
+agree in writing and set forth in the Certificate of Merger in accordance with
+the DGCL (the “Effective Time”).
+ 
+8
+
+--------------------------------------------------------------------------------
+
+ARTICLE II
+
+ORGANIZATIONAL DOCUMENTS
+OF THE SURVIVING CORPORATION
+ 
+2.1         The Certificate of Incorporation.  At the Effective Time, the
+certificate of incorporation of the Surviving Corporation (the “Certificate of
+Incorporation”) shall be amended to read as the certificate of incorporation of
+Merger Sub in effect immediately prior to the Effective Time, except that
+references to the name of Merger Sub shall be replaced by the name of the
+Surviving Corporation and for such changes as are agreed by the parties and
+necessary to comply with Section 6.11 and the terms of this Agreement, and as
+such shall be the Certificate of Incorporation until thereafter amended as
+provided therein or by applicable Law, subject to Section 6.11.
+ 
+2.2        The Bylaws.  At the Effective Time, the bylaws of Merger Sub in
+effect immediately prior to the Effective Time shall be the bylaws of the
+Surviving Corporation (the “Bylaws”), except that references to the name of
+Merger Sub shall be replaced by the name of the Surviving Corporation and for
+such changes as are agreed by the parties and necessary to comply with Section
+6.11, and as such shall be the Bylaws until thereafter amended as provided
+therein or by applicable Law, subject to Section 6.11.
+ 
+ARTICLE III
+
+DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
+ 
+3.1        Directors of Surviving Corporation.  The directors of Merger Sub
+immediately prior to the Effective Time shall, from and after the Effective
+Time, be the directors of the Surviving Corporation, to hold office until their
+respective successors have been duly elected or appointed and qualified or until
+their earlier death, resignation or removal in accordance with the DGCL, the
+Certificate of Incorporation and the Bylaws. The parties hereto shall take all
+actions necessary to give effect to this Section 3.1.
+ 
+3.2        Officers of the Surviving Corporation.  The officers of the Company
+immediately prior to the Effective Time shall, from and after the Effective
+Time, be the officers of the Surviving Corporation, to hold office until their
+respective successors have been duly elected or appointed and qualified or until
+their earlier death, resignation or removal in accordance with the DGCL,
+Certificate of Incorporation and the Bylaws. The parties hereto shall take all
+actions necessary to give effect to this Section 3.2.
+ 
+ARTICLE IV
+
+EFFECT OF THE MERGER ON SECURITIES;
+EXCHANGE
+ 
+4.1         Effect on Capital Stock.
+ 
+9
+
+--------------------------------------------------------------------------------
+
+(a)          At the Effective Time, as a result of the Merger and without any
+action on the part of Parent, Merger Sub, the Company or any holder of any
+capital stock of the Company, Parent or Merger Sub:
+ 
+(i)          Class A Shares. Each Class A Share issued and outstanding
+immediately prior to the Effective Time, whether vested or unvested, after
+giving effect to the Specified Exchange (as defined in the Exchange Agreement),
+other than (A) Class A Shares held in treasury by the Company, (B) Class A
+Shares owned, directly or indirectly, by Parent or Merger Sub (each Class A
+Share referred to in clauses (A) and (B), an “Excluded Share” and, collectively,
+the “Excluded Shares”) and (C) Dissenting Shares, shall be converted into the
+right to receive an amount equal to the Offer Price per Class A Share in cash,
+without interest thereon (the “Merger Consideration”). Upon such conversion, all
+such Class A Shares (other than Excluded Shares and Dissenting Shares), shall
+cease to be outstanding and shall automatically be cancelled and shall cease to
+exist, and each certificate formerly representing any such Class A Shares (a
+“Certificate”) and each book-entry formerly representing any such uncertificated
+Class A Shares (“Uncertificated Shares”) shall thereafter represent only the
+right to receive the Merger Consideration, and the holders thereof shall cease
+to have any rights with respect to such Class A Shares other than the right to
+receive the Merger Consideration upon surrender thereof in accordance with
+Section 4.2.
+ 
+(ii)          Class B Shares. Each Class B Share outstanding or held in treasury
+by the Company immediately prior to the Effective Time shall automatically be
+cancelled and retired and will cease to exist, and no consideration shall be
+delivered in exchange therefor, and any certificate formerly representing any
+Class B Shares shall not entitle the holder thereof to any consideration or
+other rights in respect thereof.
+ 
+(iii)        Cancellation of Excluded Shares.  Each Excluded Share outstanding
+as of immediately prior to the Effective Time shall, cease to be outstanding,
+shall be cancelled without payment of any consideration therefor and shall cease
+to exist.
+ 
+(b)         Merger Sub.  At the Effective Time, each share of common stock, par
+value $0.01, of Merger Sub (the “Merger Sub Shares”) issued and outstanding as
+of immediately prior to the Effective Time shall be converted into one share of
+common stock, par value $0.01, of the Surviving Corporation.
+ 
+4.2         Surrender and Exchange of Shares.
+ 
+10
+
+--------------------------------------------------------------------------------
+
+(a)          Paying Agent. At or prior to the Offer Acceptance Time, Parent
+shall deposit, or cause to be deposited, with a paying agent (the “Paying
+Agent”) selected by Parent and reasonably acceptable to the Company no later
+than ten (10) Business Days prior to the Closing Date, an aggregate amount of
+cash sufficient to pay all amounts required to be delivered pursuant to Section
+1.1(g)(ii) and Section 4.1(a)(i) in respect of such Class A Shares (such cash,
+together with any other amounts deposited with the Paying Agent from time to
+time and any interest thereon, the “Exchange Fund”), to be held in trust by the
+Paying Agent for the benefit of the holders of Class A Shares.  The Paying Agent
+shall invest the Exchange Fund as directed by Parent; provided that (i) such
+investments shall be an obligation of, or guaranteed by, the United States of
+America, in commercial paper obligations rated A-1 or P-1 or better by Moody’s
+Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in
+certificates of deposit, bank repurchase agreements or bankers’ acceptances of
+commercial banks and (ii) no such investment (or losses thereon) shall affect
+the amount of Merger Consideration payable to the holders of Shares pursuant to
+Section 4.1(a).  To the extent that there are losses with respect to such
+investments, or the Exchange Fund diminishes for any other reason (other than,
+for the avoidance of doubt, payments from the Exchange Fund in accordance with
+this Agreement) below the level required to make prompt cash payment of the
+Merger Consideration as contemplated hereby, Parent shall promptly replace or
+restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is
+at all times maintained at a level sufficient to make all cash payments required
+pursuant to Section 4.1(a)(i).  No later than five (5) Business Days prior to
+the Closing Date, Parent shall enter into an agreement with the Paying Agent, in
+form and substance reasonably satisfactory to the Company, to effect the
+applicable terms of this Agreement.  To the extent applicable, compensatory
+consideration, if any, payable pursuant to Section 4.1(a)(i) in respect of Class
+A Shares, shall be paid through the Surviving Corporation’s payroll as soon as
+practicable following the Effective Time (but in any event not later than ten
+(10) Business Days thereafter), net of any Taxes withheld pursuant to Section
+4.2(f).
+ 
+(b)         Exchange Procedures.  Promptly after the Effective Time (and in any
+event within three (3) Business Days thereafter), Parent shall cause the Paying
+Agent to mail to each holder of record of a Certificate representing Class A
+Shares outstanding immediately prior to the Effective Time (other than any
+Certificate in respect of Excluded Shares or Dissenting Shares): (i) a letter of
+transmittal in customary form and containing such customary provisions as Parent
+and the Company shall reasonably agree (but in any event specifying that the
+right to receive payments under Section 4.1(a) shall be effected, and risk of
+loss and title to the Certificate shall pass, only upon delivery of the
+Certificate (or an affidavit of loss in lieu thereof in accordance with Section
+4.2(e) to the Paying Agent)) and (ii) instructions for use in effecting the
+surrender of such Certificate (or affidavit of loss in lieu thereof).  Upon the
+surrender to the Paying Agent of a Certificate (or affidavit of loss in lieu
+thereof as provided in Section 4.2(e)) together with a duly executed letter of
+transmittal and such other documents as may be reasonably required by the Paying
+Agent and specified in the transmittal materials, the holder of such Certificate
+shall be entitled to receive in exchange therefor the cash amount that such
+holder is entitled to receive pursuant to Section 4.1(a) in respect of the Class
+A Shares formerly represented by such Certificate (after giving effect to any
+required Tax withholding as provided in Section 4.2(f)) in full satisfaction of
+any and all rights with respect thereto, and any Certificate so surrendered
+shall forthwith be cancelled.  No interest will be paid or accrued on any amount
+payable to holders of Certificates.  In the event of a transfer of ownership of
+any Class A Shares represented by a Certificate that is not registered in the
+transfer records of the Company, payment of the Merger Consideration may be made
+to a Person other than the holder in whose name the Class A Shares represented
+by such Certificate are registered upon (A) due surrender of the Certificate,
+properly endorsed, and any and all other documents required to evidence and
+effect such transfer, duly executed and in proper form and (B) evidence that any
+applicable transfer or similar Taxes have been paid or are not applicable.
+ 
+11
+
+--------------------------------------------------------------------------------
+
+(c)        Transfers.  From and after the Effective Time, there shall be no
+transfers on the stock transfer books of the Company of the Class A Shares or
+Class B Shares that were outstanding immediately prior to the Effective Time. If
+after the Effective Time a Certificate or book-entry account statement
+evidencing ownership of any Class A Shares, or any valid certificate
+representing any Class B Shares, in each case, outstanding immediately prior to
+the Effective Time is presented to the Paying Agent, Parent or the Surviving
+Corporation, such certificate shall be canceled and the Shares formerly
+represented thereby treated in accordance with this Article IV.
+ 
+(d)         Termination of Exchange Fund.  Following the twelve (12) month
+anniversary of the Closing Date, upon Parent’s request, any portion of the
+Exchange Fund that remains unclaimed by the former stockholders of the Company
+shall be delivered to Parent.  Any holder of Class A Shares (other than Excluded
+Shares) who has not theretofore complied with this Article IV shall thereafter
+look only to Parent for delivery of any payment of cash to which such Person is
+entitled hereunder (after giving effect to any required Tax withholdings as
+provided in Section 4.2(f)) upon due surrender of such Person’s Class A Shares
+in accordance with this Section 4.2, without any interest thereon. 
+Notwithstanding the foregoing, none of the Surviving Corporation, Parent, the
+Paying Agent or any other Person shall be liable to any former holder of Shares
+for any amount properly delivered to a public official pursuant to applicable
+abandoned property, escheat or similar Law.  To the fullest extent permitted by
+Law, immediately prior to the date any Merger Consideration would otherwise
+escheat to or become the property of any Governmental Entity, such Merger
+Consideration shall become the property of the Surviving Corporation, free and
+clear of all claims or interest of any Person previously entitled thereto.
+ 
+(e)         Lost, Stolen or Destroyed Certificates.  In the event any
+Certificate shall have been lost, stolen or destroyed, upon the making of an
+affidavit of that fact by the Person claiming such Certificate to be lost,
+stolen or destroyed to the Paying Agent and the Surviving Corporation (in a form
+reasonably acceptable to the Paying Agent and the Surviving Corporation), the
+Paying Agent will issue in exchange for such lost, stolen or destroyed
+Certificate the cash that would have been issuable or payable pursuant to the
+provisions of this Article IV (after giving effect to any Tax withholdings as
+provided in Section 4.2(f)) had such lost, stolen or destroyed Certificate been
+surrendered; provided, however, that the owner of such lost, stolen or destroyed
+Certificate may be required, as a condition precedent to the payment of such
+Merger Consideration, to provide a bond or other security in a customary amount
+if so required by the policies and procedures of the Paying Agent.
+ 
+(f)         Withholding Rights.  Each of Parent, Merger Sub, the Surviving
+Corporation and the Paying Agent shall be entitled to deduct and withhold (or
+cause to be deducted and withheld) from the amounts otherwise payable pursuant
+to this Agreement such amounts as it reasonably determines are required to be
+deducted and withheld with respect to the making of such payment under the
+United States Internal Revenue Code of 1986, as amended (the “Code”), or any
+other applicable state, local or foreign Tax Law.  To the extent that amounts
+are so deducted or withheld and timely remitted to the applicable Governmental
+Entity, such deducted or withheld amounts shall be treated for all purposes of
+this Agreement as having been paid to the Person in respect of which such
+deduction and withholding was made.  As soon as reasonably practicable prior to
+making any deduction or withholding pursuant to this Section 4.2(f), Parent,
+Merger Sub, the Surviving Corporation or the Paying Agent, as the case may be,
+shall provide written notice to the Company of any anticipated deduction or
+withholding (together with the legal basis therefor) and shall reasonably
+cooperate in good faith to reduce or eliminate any amounts that would otherwise
+be deducted or withheld.
+ 
+12
+
+--------------------------------------------------------------------------------
+
+(g)         Uncertificated Shares.  Promptly after the Effective Time (and in
+any event within three (3) Business Days thereafter), Parent shall cause the
+Paying Agent to (i) mail or make available to each registered holder of
+Uncertificated Shares (other than in respect of Excluded Shares) materials
+advising such holder of the effectiveness of the Merger and the conversion of
+its Class A Shares into the right to receive the Merger Consideration and (ii)
+upon receipt by the Paying Agent of an “agent’s message” in customary form (or
+such evidence, if any, as the Paying Agent may reasonably request), reasonably
+promptly thereafter deliver the cash that such holder thereby becomes entitled
+to receive in respect of its Class A Shares pursuant to Section 4.1(a) (after
+giving effect to any required Tax withholdings as provided in Section 4.2(f)),
+without interest thereon.
+ 
+4.3        Dissenters’ Rights.  Notwithstanding anything to the contrary herein,
+no Dissenting Shares shall be converted into or represent the right to receive
+the Merger Consideration, and the holder thereof shall be entitled to receive
+only the appraised value of the Dissenting Shares held by them in accordance
+with Section 262 of the DGCL, except as set forth in this Section 4.3. If at any
+time following the Effective Time, a Person who otherwise would be deemed to be
+a Dissenting Stockholder shall have effectively withdrawn or otherwise lost or
+fails to timely perfect the right to an appraisal in accordance with Section 262
+of the DGCL or if a court of competent jurisdiction shall finally determine that
+the Dissenting Stockholder is not entitled to an appraisal with respect to any
+Shares, any Class A Shares held by such Person shall thereupon be treated as
+though such Shares had been converted, as of the Effective Time, into the right
+to receive the Merger Consideration pursuant to Section 4.1(a)(i) and in
+accordance with Section 4.2 (without interest and less any required Tax
+withholdings as provided in Section 4.2(f)).  The Company shall give Parent
+written notice as promptly as practicable of any written demands for appraisal,
+withdrawals or attempted withdrawals of such demands, and any other instruments
+served pursuant to applicable Law received by the Company relating to
+stockholders’ rights of appraisal.  The Company shall not, except with the prior
+written consent of Parent, voluntarily make or offer to make any payment with
+respect to any demands for appraisal, negotiate, offer to settle or settle any
+such demands or approve any withdrawal of any such demands or waive any failure
+to timely deliver a written demand for appraisal in accordance with the DGCL.
+Any amounts required to be paid in respect of any Dissenting Shares shall be
+paid by the Surviving Corporation.
+ 
+4.4         Adjustments.  In the event that, following the execution and
+delivery of this Agreement and prior to the Effective Time, the Shares or any
+other equity interests of the Company, including any securities convertible into
+or exchangeable or exercisable for any Shares or other equity interests of the
+Company, shall have been increased or decreased, or changed into or exchanged
+for a different number or kind of shares or securities (other than as a result
+of any repurchase, redemption or issuance of capital stock permitted by this
+Agreement and the issuance of Class A Shares and cancellation of Class B Shares
+in accordance with the Exchange Agreement), including as a result of any
+reorganization, reclassification, stock split (including a reverse stock split),
+stock dividend or distribution, recapitalization, subdivision, or other similar
+change in capitalization or any other similar event or transaction, the Offer
+Price, Merger Consideration and any other amounts payable pursuant to this
+Agreement shall be appropriately and proportionately adjusted to reflect the
+effects of such event.
+ 
+4.5         Treatment of Equity Awards.
+ 
+13
+
+--------------------------------------------------------------------------------
+
+(a)         Treatment of Stock Options. At the Effective Time, with respect to
+each outstanding option to purchase Shares (a “Company Option”) granted under
+the Company’s Long-Term Incentive Plan (the “Company Stock Plan”) that was
+outstanding immediately prior to the Effective Time, whether vested or unvested,
+(i) if the exercise price of such Company Option is equal to or greater than the
+Merger Consideration, such Company Option shall terminate and be cancelled as of
+immediately prior to the Effective Time, without any consideration being payable
+in respect thereof, and have no further force or effect, and (ii) if the
+exercise price of such Company Option is less than the Merger Consideration,
+such Company Option shall terminate and be cancelled as of immediately prior to
+the Effective Time in exchange for the right to receive, in accordance with this
+Section 4.5(a), a lump sum cash payment in the amount equal to (i) the number of
+Shares underlying the Company Option immediately prior to the Effective Time,
+multiplied by (ii) the Merger Consideration minus the applicable exercise price
+(the product of (i) and (ii), the “Option Payment”).  The Option Payment (if
+any) payable under this Section 4.5(a) shall be paid to each former holder of a
+Company Option through the Surviving Corporation’s payroll as soon as
+practicable following the Effective Time (but in any event not later than ten
+(10) Business Days thereafter), net of any Taxes withheld pursuant to Section
+4.2(f).
+ 
+(b)         Treatment of Stock Appreciation Rights. At the Effective Time, with
+respect to each outstanding stock appreciation right (a “Company SAR”) granted
+under the Company Stock Plan, that was outstanding immediately prior to the
+Effective Time, whether vested or unvested, (i) if the exercise price of such
+Company SAR is equal to or greater than the Merger Consideration, such Company
+SAR shall terminate and be cancelled as of immediately prior to the Effective
+Time, without any consideration being payable in respect thereof, and have no
+further force or effect and (ii) if the exercise price of such Company SAR is
+less than the Merger Consideration, such Company SAR shall terminate and be
+cancelled as of immediately prior to the Effective Time in exchange for the
+right to receive, in accordance with this Section 4.5(b), a lump sum cash
+payment in the amount equal to (i) the number of Shares underlying such Company
+SAR immediately prior to the Effective Time, multiplied by (ii) the Merger
+Consideration minus the applicable exercise price (the product of (i) and (ii),
+the “SAR Payment”).  The SAR Payment (if any) payable under this Section 4.5(b)
+shall be paid to each former holder of a Company SAR through the Surviving
+Corporation’s payroll as soon as practicable following the Effective Time (but
+in any event not later than ten (10) Business Days thereafter), net of any Taxes
+withheld pursuant to Section 4.2(f).
+ 
+(c)          Further Action.  Prior to the Effective Time, the Company, the
+board of directors of the Company or the compensation committee of the board of
+directors of the Company, as applicable, shall adopt any resolutions and take
+any actions which are reasonably necessary to effectuate the provisions of this
+Section 4.5 and ensure that following the Effective Time, (x) no Person shall
+have any right to acquire any securities of the Company or to receive any
+payment, right or benefit with respect to any award previously granted under the
+Company Stock Plan, except the right to receive a payment with respect thereto
+as provided in Section 4.2 and this Section 4.5 and (y) no Company Equity Award
+will be issued and outstanding.
+ 
+14
+
+--------------------------------------------------------------------------------
+
+ARTICLE V
+
+REPRESENTATIONS AND WARRANTIES
+ 
+5.1        Representations and Warranties of the Company.  Except (i) as set
+forth in the corresponding sections or subsections of the disclosure letter
+delivered to Parent by the Company at the time of entering into this Agreement
+(the “Company Disclosure Letter”), it being understood and agreed that any
+disclosure set forth in one section or subsection of the Company Disclosure
+Letter shall be deemed to be disclosed with respect to, and shall be deemed to
+apply to and qualify, the section or subsection of this Agreement to which it
+corresponds and each other section or subsection of this Agreement to the extent
+it is reasonably apparent on the face of such disclosure that such disclosure
+would also apply with respect to such other section or subsection, provided that
+no disclosure shall be deemed to apply to Section 5.1(b) (Capital Structure)
+unless it expressly corresponds to such section or Section 5.1(f)(i) (No
+Material Adverse Change) or (ii) as disclosed in any Company Reports publicly
+filed prior to the date of this Agreement (excluding any disclosures (other than
+statements of historical fact) in any “Risk Factors” or “Forward Looking
+Statements” sections and any disclosures included in any such Company Reports
+that are cautionary, predictive or forward looking in nature), provided that in
+no event will the Company Reports qualify or limit the representations and
+warranties in Section 5.1(b) (Capital Structure), Section 5.1(c) (Corporate
+Authority and Approval), Section 5.1(g) (Litigation and Liabilities), Section
+5.1(j) (Compliance with Laws, Licenses), Section 5.1(l) (Takeover Statutes),
+Section 5.1(s) (Financial Advisor Opinion) or Section 5.1(t) (Brokers and
+Finders), the Company hereby represents and warrants to Parent and Merger Sub as
+follows:
+ 
+(a)         Organization, Good Standing and Qualification.  Each of the Company
+and its Subsidiaries (i) is a legal entity duly organized, validly existing and
+in good standing under the Laws of its respective jurisdiction of organization,
+(ii) has all requisite corporate or similar power and authority to own, lease
+and operate its properties and assets and to carry on its business as presently
+conducted and is qualified to do business and (iii) is in good standing as a
+foreign legal entity in each jurisdiction where the ownership, leasing or
+operation of its assets or properties or conduct of its business requires such
+qualification, except in the case of clauses (i) (solely with respect to the
+Company’s Subsidiaries), (ii) and (iii) where the failure to be so organized,
+qualified or in good standing, or to have such power or authority, would not,
+individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect.  Prior to the date of this Agreement, the Company has
+made available to Parent complete and correct copies of (x) the Company
+Certificate of Incorporation and Company Bylaws and the Certificate of Formation
+of Holdings and the Operating Agreement, and (y) the certificate of
+incorporation or bylaws or equivalent organizational documents of the each of
+the Company’s Subsidiaries, in each case, as amended to and as in effect on the
+date of this Agreement.
+ 
+(b)         Capital Structure.
+ 
+15
+
+--------------------------------------------------------------------------------
+
+(i)          The authorized capital stock of the Company consists of (A)
+100,000,000 Class A Shares, (B) 20,000,000 Class B Shares and (C) 5,000,000
+shares of Preferred Stock, par value $0.001 per share (the “Preferred Shares”). 
+As of the close of business on July 9, 2020 (the “Capitalization Date”), (w)
+13,567,640 Class A Shares were issued and outstanding (of which 777,170 were
+shares subject to unvested Company Restricted Stock Awards, with any Company
+Restricted Stock Awards subject to performance-based vesting determined at
+target levels of performance), (x) 687,667 Class B Shares were issued and
+outstanding, (y) no Preferred Shares were issued and outstanding and (z)
+3,902,705 Class A Shares and zero (0) Class B Shares were held in treasury.  All
+of the outstanding Class A Shares and Class B Shares have been duly authorized
+and validly issued in compliance with applicable securities laws and applicable
+preemptive rights and are fully paid and nonassessable.  As of the
+Capitalization Date, there were an aggregate of 760,904 Shares reserved for
+issuance pursuant to the Company Stock Plan. Section 5.1(b)(i)(A) of the Company
+Disclosure Letter sets forth a schedule of outstanding Company Options, Company
+SARs and Company Restricted Stock Awards granted under the Company Stock Plan,
+including the name of the holder, the number of Class A Shares subject to the
+award, the date of grant, the number of vested and unvested Class A Shares
+subject to such award, the exercise price (if applicable) and the vesting
+schedule, in each case as of the Capitalization Date. As of the Capitalization
+Date, (A) there were 13,567,640 Series A Membership Interests of Holdings
+outstanding, all of which were held directly or indirectly by the Company, and
+687,667 Series B Units outstanding and (B) all of the issued and outstanding
+Class B Shares and all of the outstanding Series B Units were exchangeable in
+accordance with the terms of the Existing Exchange Agreement for 687,667 Class A
+Shares.  There are no outstanding Company Restricted Stock Awards pursuant to
+which any Shares may be required to be issued which had not been issued as of
+the Capitalization Date.  The Company has sufficient authorized and unissued
+shares of Class A Common Stock to effect the transactions contemplated by the
+Exchange Agreement.
+ 
+(ii)        From the Capitalization Date to the execution of this Agreement, the
+Company has not issued or agreed to issue any Company Securities, except
+pursuant to the exercise of Company Options or Company SARs in accordance with
+their terms existing as of the date of this Agreement.
+ 
+(iii)        Each of the outstanding shares of capital stock or other securities
+of each of the Company’s Subsidiaries has been duly authorized and validly
+issued in compliance with applicable securities laws and is fully paid and
+nonassessable and is owned by the Company or by a direct or indirect wholly
+owned Subsidiary of the Company, free and clear of any Lien (except for
+Permitted Liens and Liens arising under applicable securities laws). Except as
+set forth in Section 5.1(b)(i) or Section 5.1(b)(iii), and except for the Tax
+Receivable Agreement, the Operating Agreement, and the Existing Exchange
+Agreement, as of the date of this Agreement, there are no (A) outstanding shares
+of capital stock of, or other equity or voting securities in, the Company or any
+of its Subsidiaries, (B) outstanding bonds, debentures, notes or other
+obligations that grant the holders thereof the right to vote (or are convertible
+into or exchangeable or exercisable for securities having the right to vote)
+with the stockholders of the Company or any of its Subsidiaries on any matter,
+(C) preemptive or other outstanding rights, redemption rights, repurchase
+rights, agreements, arrangements, calls, commitments or rights of any kind that
+obligate the Company or any of its Subsidiaries to issue or sell any shares of
+capital stock or other equity or voting securities of the Company or any of its
+Subsidiaries or any securities or obligations convertible into or exchangeable
+or exercisable for any shares of capital stock or other equity or voting
+securities of the Company or any of its Subsidiaries, or giving any Person a
+right to subscribe for or acquire from the Company or any of its Subsidiaries
+any shares of capital stock or other equity or voting securities of the Company
+or any of its Subsidiaries, or (D) options, warrants, conversion rights, stock
+appreciation rights, performance shares, contingent value rights, “phantom”
+stock or similar securities or rights that are derivative of, or provide
+economic benefits based, directly or indirectly, on the value or price of, any
+capital stock of, or other securities or ownership interests in, the Company or
+any of its Subsidiaries (the items in clauses (A), (B), (C) and (D),
+collectively with the Shares, the “Company Securities”).  As of the date hereof,
+the Exchange Rate (as defined in the Existing Exchange Agreement) is 1 for 1.
+ 
+16
+
+--------------------------------------------------------------------------------
+
+(iv)        Section 5.1(b)(iv) of the Company Disclosure Letter sets forth a
+list identifying (A) each of the Company’s Subsidiaries, its jurisdiction of
+incorporation or organization, the location of its principal executive office
+and the type and number of ownership interests of the Company and its other
+Subsidiaries in each such Subsidiary and who the owner thereof is and (B) any
+other Person in which the Company or any of its Subsidiaries holds (or has an
+obligation to acquire) capital stock or other equity interest (other than
+securities held by any employee benefit plan of the Company or any of its
+Subsidiaries or any trustee, agent or other fiduciary in such capacity under any
+such employee benefit plan). No Subsidiary of the Company owns any Shares.
+ 
+(c)          Corporate Authority and Approval.
+
+
+
+(i)         The Company has all requisite corporate power and authority and has
+taken all corporate action necessary in order to execute and deliver this
+Agreement, to perform its obligations hereunder and to consummate the Offer and
+the Merger, subject only to the consummation of the Offer in accordance with the
+terms hereof and assuming the accuracy of Parent’s and Purchaser’s
+representations and warranties set in forth Section 5.2(i) (No Ownership of
+Company Common Stock) and that the Merger is consummated in accordance with
+Section 251(h) of the DGCL.  This Agreement has been duly executed and delivered
+by the Company and (assuming the due and valid execution hereof by Parent and
+Merger Sub) constitutes a valid and binding agreement of the Company,
+enforceable against the Company in accordance with its terms, subject to
+bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
+similar Laws of general applicability relating to or affecting creditors’ rights
+and to general equity principles (the “Bankruptcy and Equity Exception”).  On or
+prior to the date of this Agreement, the board of directors of the Company has
+unanimously (i) determined that it is in the best interests of the Company and
+its stockholders to enter into this Agreement, (ii) approved the execution and
+delivery of this Agreement and the transactions contemplated hereby, including
+the Offer and the Merger, upon the terms and subject to the conditions set forth
+herein, (iii) declared advisable this Agreement and the transactions
+contemplated hereby, (iv) subject to Section 6.2 and the terms and conditions of
+this Agreement, resolved to recommend the holders of Shares accept the Offer by
+tendering their Class A Shares to Merger Sub pursuant to the Offer (the “Company
+Recommendation”).
+ 
+17
+
+--------------------------------------------------------------------------------
+
+(ii)        Assuming (i) the satisfaction of the Minimum Condition, (ii) the
+absence of any amendment, modification or other change to the DGCL or this
+Agreement that would render Section 251(h) of the DGCL inapplicable to this
+Agreement and (iii) the accuracy of Parent’s and Purchaser’s representations and
+warranties set in forth Section 5.2(i) (No Ownership of Company Common Stock),
+no vote of the holders of any class or series of capital stock of the Company or
+any of its Subsidiaries is necessary to adopt this Agreement or to consummate
+the Offer, the Merger and the other transactions contemplated hereby under the
+applicable Laws of the State of Delaware and the Company and each of its
+Subsidiaries certificate of incorporation or bylaws (or comparable governing
+documents).
+ 
+(iii)        The Company is not party to any “poison pill” rights plan or
+similar plan or agreement relating to any shares of capital stock or other
+equity interests of the Company.
+ 
+(d)         Governmental Filings; No Violations.
+ 
+(i)         Other than the filing of the Certificate of Merger pursuant to
+Section 1.4 and the necessary filings, notices, reports, consents,
+registrations, approvals, permits, expirations of waiting periods or
+authorizations (A) required under the Hart-Scott-Rodino Antitrust Improvements
+Act of 1976, as amended (the “HSR Act”) in connection with the Merger, (B)
+required under the Securities Exchange Act of 1934, as amended (the “Exchange
+Act”), or the Securities Act of 1933, as amended (the “Securities Act”), or (C)
+as set forth on Section 5.1(d)(i)(C) of the Company Disclosure Letter (x) under
+the heading “Pre-Closing Company Required Regulatory Law Filings” (the
+“Pre-Closing Company Required Regulatory Law Filings”) and (y) under the heading
+“Post-Closing Company Required Regulatory Law Filings (the “Post-Closing Company
+Required Regulatory Law Filings”, and, collectively with the Pre-Closing Company
+Required Regulatory Law Filings, the “Company Required Regulatory Law Filings”),
+no filings, notices and/or reports are required to be made by the Company or its
+Subsidiaries with, nor are any consents, registrations, approvals, permits,
+expirations of waiting periods or authorizations required to be obtained by the
+Company or its Subsidiaries from, any Governmental Entity in connection with the
+execution, delivery and performance of this Agreement by the Company and/or the
+consummation by the Company of the Offer, the Merger and the other transactions
+contemplated hereby, except, in each case, those that the failure to make or
+obtain would not, individually or in the aggregate, reasonably be expected to
+have a Company Material Adverse Effect or prevent, materially delay or
+materially impair the ability of Merger Sub to commence or consummate the Offer
+or the Company to consummate the Merger.
+ 
+18
+
+--------------------------------------------------------------------------------
+
+(ii)        The execution, delivery and performance of this Agreement by the
+Company do not, and the consummation by the Company of the Merger and the other
+transactions contemplated hereby (including the Offer) will not, constitute or
+result in (A) a breach or violation of, or a default under, the Amended and
+Restated Certificate of Incorporation of the Company, effective as of February
+13, 2013, as amended by the Certificate of Correction thereof filed on February
+13, 2013, and as further amended on March 6, 2020 (as may be further amended,
+restated or otherwise modified from time to time, the “Company Certificate of
+Incorporation”), the Second Amended and Restated Bylaws of the Company,
+effective as of March 6, 2020 (as may be further amended, restated or modified
+from time to time, the “Company Bylaws”), the Existing Exchange Agreement, the
+Tax Receivable Agreement, the Operating Agreement or the certificate of
+incorporation or bylaws (or comparable governing documents) of the Company’s
+Subsidiaries, (B) with or without the lapse of time or the giving of notice or
+both, a breach or violation of, a default or termination or modification (or
+right of termination or modification) under, obligation of payment of additional
+fees under, the creation or acceleration of any obligations under, or the
+creation of a Lien on any of the assets of the Company or any of its
+Subsidiaries pursuant to, any Contract or Lease binding upon the Company or any
+of its Subsidiaries, or (C) assuming the filings, notices, reports, consents,
+registrations, approvals, permits, expirations of waiting periods and
+authorizations referred to in Section 5.1(d)(i) are made or obtained,
+contravene, conflict with or result in any violation under any Law, Order or
+License to which the Company or any of its Subsidiaries is subject, except, in
+the case of clauses (B) and (C) above, for any such breach, violation, default,
+termination, modification, payment, acceleration, creation or change that would
+not, individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect.
+ 
+(e)          Company Reports; Financial Statements.
+ 
+(i)          The Company has filed or furnished, as applicable, all forms,
+statements, schedules, certifications, reports and other documents required to
+be filed or furnished by it with or to the U.S. Securities and Exchange
+Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act,
+including all exhibits thereto and information incorporated thereby, since
+January 1, 2018 (the “Applicable Date”) and prior to the date hereof (as amended
+or supplemented, the “Company Reports”).  Each of the Company Reports, at the
+time of its filing or being furnished (or, if such Company Report was amended or
+superseded, as of the date of such subsequent filing) with the SEC (i) complied
+as to form in all material respects with the applicable requirements of the
+Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002 (the
+“Sarbanes-Oxley Act”), and the published rules and regulations of the SEC
+applicable to the Company Reports, and (ii) did not contain any untrue statement
+of a material fact or omit to state a material fact required to be stated
+therein or necessary in order to make the statements therein, in light of the
+circumstances under which they were made, not misleading.
+ 
+(ii)         The Company is in compliance in all material respects with the
+applicable listing and corporate governance rules and regulations of the Nasdaq
+that are applicable to the Company.
+ 
+19
+
+--------------------------------------------------------------------------------
+
+(iii)        The Company maintains disclosure controls and procedures (as
+defined in Rule 13a-15(e) or 15d-15(e) under the Exchange Act) that are
+sufficient to provide reasonable assurance that material information required to
+be disclosed by the Company in its filings with the SEC under the Exchange Act
+is recorded and reported on a timely basis to the individuals responsible for
+the preparation of the Company’s filings with the SEC under the Exchange Act. 
+The Company maintains internal controls over financial reporting (as defined in
+Rule 13a-15(f) or 15d-15(f), as applicable, under the Exchange Act) sufficient
+to provide reasonable assurance (i) that transactions are recorded as necessary
+to permit preparation of financial statements for external purposes in
+accordance with GAAP (ii) that receipts and expenditures are executed in
+accordance with the authorization of management and (iii) regarding prevention
+or timely detection of the unauthorized acquisition, use or disposition of the
+Company’s assets that would materially affect the Company’s financial
+statements.  Since the Applicable Date, neither the Company nor any of its
+Subsidiaries nor the Company’s independent auditors has identified or been made
+aware of (A) any “significant deficiencies” or “material weaknesses” in the
+design or operation of its disclosure controls and procedures or internal
+controls over financial reporting, (B) any fraud (or unresolved allegation
+thereof), whether or not material, that involves management or other employees
+who have a significant role in the preparation of financial statements or
+internal control over financial reporting of the Company or its Subsidiaries or
+(C) any complaints regarding a material violation of accounting procedures,
+internal accounting controls or auditing matters relating to the period since
+the Applicable Date, including from employees of the Company or its Subsidiaries
+regarding questionable accounting, auditing or legal compliance matters.
+ 
+(iv)          Each of the consolidated balance sheets included in or
+incorporated by reference into the Company Reports (including the related notes
+and schedules) fairly presents in all material respects, the consolidated
+financial position of the Company and its consolidated Subsidiaries, as of the
+date of such balance sheet, and each of the consolidated statements of income,
+cash flows and changes in stockholders’ equity included in or incorporated by
+reference into the Company Reports (including any related notes and schedules)
+fairly presents, in all material respects, the results of operations, retained
+earnings (loss) and changes in financial position, as the case may be, of the
+Company and its consolidated Subsidiaries for the periods set forth therein
+(subject, in the case of unaudited statements, to notes and normal year-end
+audit adjustments that are not in the aggregate material). Such financial
+statements were, in each case, prepared in accordance with GAAP (except, in the
+case of unaudited consolidated financial statements, as permitted by the rules
+and regulations of the SEC) consistently applied during the periods involved,
+except as may be noted therein in such Company Reports or in the notes thereto,
+or as permitted by Regulation S-X promulgated under the Exchange Act.
+ 
+(f)          Absence of Certain Changes.
+
+
+
+(i)           Since December 31, 2019 (the “Balance Sheet Date”), there has not
+been any change, effect, circumstance or development which has had or would,
+individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect.
+ 
+(ii)        Since the Balance Sheet Date through the date of this Agreement, the
+Company and its Subsidiaries have (a) conducted their respective businesses in
+the ordinary course of such businesses in all material respects, except for the
+execution, delivery and performance of this Agreement and the discussions,
+negotiations and transactions related hereto and to the sale process conducted
+by the Company in connection herewith, and (b) not taken any action that would
+be prohibited under Section 6.1(a)(i), 6.1(a)(ii), 6.1(a)(iii),
+6.1(a)(iv),6.1(a)(v) (other than clause (A) thereof with respect to
+non-executive employees or service providers) 6.1(a)(vi), 6.1(a)(vii),
+6.1(a)(x), 6.1(a)(xii), 6.1(a)(xiii), 6.1(a)(xvi), 6.1(a)(xvii), 6.1(a)(xviii),
+6.1(a)(xx), 6.1(a)(xxi) and 6.1(a)(xxii) if taken or proposed to be taken after
+the date of this Agreement (determined as though clauses (1)-(4) and (A)-(D) of
+the prefatory paragraph of Section 6.1(a) are deleted for such purposes).
+ 
+20
+
+--------------------------------------------------------------------------------
+
+(g)          Litigation and Liabilities.
+
+
+
+(i)          (A) There are no Proceedings pending or, to the Knowledge of the
+Company, threatened against the Company or any of its Subsidiaries, except for
+those that would not, individually or in the aggregate, reasonably be expected
+to have a Company Material Adverse Effect. (B) Neither the Company nor any of
+its Subsidiaries (or any of their respective properties or assets) is a party to
+or subject to the provisions of any judgment, order, writ, injunction, ruling,
+decree, award, stipulation or settlement of or with any Governmental Entity
+(each, an “Order”) except for those that would not, individually or in the
+aggregate, reasonably be expected to have a Company Material Adverse Effect
+(except to the extent expressly consented to by Parent pursuant to Section 6.5)
+and the Company and its Subsidiaries, as applicable, have complied with, and are
+in compliance with, all Orders, except in each case as would not, individually
+or in the aggregate, reasonably be expected to have a Company Material Adverse
+Effect.
+ 
+(ii)         There are no obligations or liabilities of the Company or any of
+its Subsidiaries, whether or not accrued, contingent or otherwise other than (i)
+liabilities or obligations disclosed, reflected, reserved against or otherwise
+provided for in the Company Reports, (ii) liabilities or obligations incurred
+since the Balance Sheet Date in the ordinary course of business and consistent
+with past practice (none of which are a liability for tort, breach of contract
+or violation of any Law or Order), (iii) liabilities or obligations that would
+not, individually or in the aggregate, reasonably be expected to be material to
+the Company and its Subsidiaries, taken as a whole, or (iv) liabilities or
+obligations arising out of this Agreement or the transactions contemplated
+hereby.  Neither the Company nor any of its Subsidiaries is a party to, or has
+any commitment to become a party to, any joint venture, off-balance sheet
+partnership or any similar Contract or arrangement (including any Contract or
+arrangement relating to any transaction or relationship between or among the
+Company and any of its Subsidiaries, on the one hand, and any unconsolidated
+Affiliate, including any structured finance, special purpose or limited purpose
+entity or Person, on the other hand, or any material “off-balance sheet
+arrangement” (as defined in Item 303(a) of Regulation S-K of the Exchange Act)),
+where the result, purpose or intended effect of such Contract or arrangement is
+to avoid disclosure of any material transaction involving, or material
+liabilities of, the Company or any of its Subsidiaries in the Company Reports.
+ 
+(h)          Employee Benefits. 
+ 
+21
+
+--------------------------------------------------------------------------------
+
+(i)          For the purposes of this Agreement, the term “Company Plan” shall
+mean any benefit or compensation plan, policy, program, agreement or arrangement
+(A) maintained, sponsored, contributed to by, or obligated to be contributed to
+by, the Company or any of its Subsidiaries covering current or former employees
+of the Company or any of its Subsidiaries or current or former directors or
+individual services providers of the Company or any of its Subsidiaries or (B)
+under or with respect to which the Company or any of its Subsidiaries has any
+liability including, in each case, “employee benefit plans” within the meaning
+of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
+amended (“ERISA”), whether or not subject to ERISA, and any incentive and bonus,
+deferred compensation, pension, equity or equity-based compensation, profit
+sharing, savings, commission, consulting, change in control, retention, welfare,
+accident, disability, health, salary continuation, vacation, sick pay or paid
+time off, stock purchase, employment, retirement, severance, restricted stock,
+stock option, stock appreciation rights or stock based plans, agreements,
+policies or arrangements, excluding any such plan or arrangement sponsored or
+administered by a Governmental Entity.  Each material Company Plan as of the
+date of this Agreement is listed in Section 5.1(h)(i) of the Company Disclosure
+Letter.  True and complete copies of (x) each of the current Company Plan
+documents, and all amendments thereto, (y) the most recent summary plan
+description for each Company Plan and (z) the most recent determination, opinion
+or advisory letter received from the IRS with respect to each Company Plan that
+is intended to be qualified under Code Section 401(a), have been provided or
+made available to Parent on or prior to the date of this Agreement.
+ 
+(ii)        All Company Plans have been established, maintained, funded and
+administered in accordance with their terms and in compliance with applicable
+Laws (including, if applicable, ERISA and the Code), and neither the Company nor
+any of its Subsidiaries has incurred or reasonably expects to incur a Tax,
+penalty or other liability or obligation under Sections 4975, 4980B, 4980D,
+4980H, 6721 or 6722 of the Code, except, in each case, as would not,
+individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect.
+ 
+(iii)        Each Company Plan that is intended to be qualified under Section
+401(a) of the Code, has received a favorable determination letter or is entitled
+to rely upon an opinion letter from the from the Internal Revenue Service (the
+“IRS”) and, to the Knowledge of the Company, circumstances do not exist that
+would result in the loss of the qualification of such plan under Section 401(a)
+of the Code.
+
+
+(iv)        None of the Company, any of its Subsidiaries or any ERISA Affiliate,
+contributes to or is obligated to contribute to, or has any other current or
+contingent liability or obligations under or with respect to, (A) an “employee
+pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV
+of ERISA, Section 412 of the Code or Section 302 of ERISA, (B) a “multiemployer
+plan” within the meaning of Section (3)(37) of ERISA, (C) a multiple employer
+plan (as described in Section 413(c) of Code or Sections 210, 4063, 4064 or 4066
+of ERISA) or (D) a “multiple employer welfare arrangement” (as defined in
+section 3(40) of ERISA).  No Company Plan provides, and neither Company nor any
+of its Subsidiaries has any obligation to provide, any material post-employment,
+post-termination or retiree health, life or other material post-termination
+welfare benefits to any current or former director, officer or employee, or
+their respective survivors, dependents or beneficiaries or other Person, other
+than health continuation required by Part 6 of Subtitle B of Title I of ERISA or
+Section 4980B of the Code or similar state Law.
+ 
+22
+
+--------------------------------------------------------------------------------
+
+(v)         There is no Proceeding (other than routine claims for benefits)
+pending or, to the Knowledge of the Company, threatened in writing relating to
+the Company Plans, except as would not, individually or in the aggregate,
+reasonably be expected to have a Company Material Adverse Effect.
+ 
+(vi)        Except, in each case, as would not, individually or in the
+aggregate, reasonably be expected to have a Company Material Adverse Effect,
+each Company Plan that is a “nonqualified deferred compensation plan” subject to
+Section 409A of the Code complies with and has been maintained in accordance
+with the requirements of Section 409A of the Code and no amount under any such
+plan or arrangement is subject to the interest and additional Tax set forth
+under Section 409A(a)(1)(B) of the Code.
+ 
+(vii)       Except as provided in this Agreement, neither the execution and
+delivery of this Agreement nor the consummation of the transactions contemplated
+hereby would reasonably be expected to, either alone or in combination with any
+other event, (A) result in any material payment or benefit becoming due to any
+current or former employee or individual service provider of the Company or its
+Subsidiaries, (B) materially increase any payments or benefits under any Company
+Plan or otherwise payable to any such Person or (C) result in the acceleration
+of the time of payment, vesting or funding of any such compensation or benefits.
+Neither the Company nor any of its Subsidiaries has any obligation to gross-up,
+indemnify or otherwise reimburse any such Person for any excise or additional
+tax, interest or penalties incurred by such individual under Sections 409A or
+4999 of the Code. As of the third (3rd) Business Day prior to the Closing, the
+Company has made available to Parent copies of Section 280G calculations
+prepared in good faith (whether or not final) with respect to payments to
+disqualified individuals that may be made in connection with the transactions
+contemplated by this Agreement.
+ 
+(viii)       None of the Company or any of its Subsidiaries is party to any
+agreement, contract, arrangement or plan that has resulted or could result,
+separately or in the aggregate, in the payment of an “excess parachute payment”
+within the meaning of Section 280G of the Code (or any similar provision of Law)
+ 
+(i)          Labor Matters.
+ 
+(i)           As of the date of this Agreement, except as would not,
+individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries is
+a party to or otherwise bound by a collective bargaining agreement or other
+similar Contract with a labor union or labor organization (each, a “CBA”), (B)
+neither the Company nor any of its Subsidiaries is the subject of any proceeding
+asserting that the Company or any of its Subsidiaries has committed an unfair
+labor practice or that is seeking to compel the Company to bargain with any
+labor union or labor organization and, to the Knowledge of the Company, no such
+proceeding has been threatened in writing, and (C) there is no actual or, to the
+Knowledge of the Company, threatened, labor grievance, Action, labor
+arbitration, labor strike, walkout, work stoppage, slow-down, lockout or other
+material labor dispute affecting employees of the Company.  Except as would not
+reasonably be expected to have, individually or in the aggregate, a Company
+Material Adverse Effect, as of the date of this Agreement, none of the employees
+of the Company or any of its Subsidiaries is represented by a labor union or
+other labor organization with respect to their employment with the Company or
+its Subsidiaries, and, to the Knowledge of the Company, since the Applicable
+Date, there have been no organizational efforts with respect to the formation of
+a collective bargaining unit or other labor organizing activities involving
+employees of the Company or any of its Subsidiaries.
+ 
+23
+
+--------------------------------------------------------------------------------
+
+(ii)          The Company and its Subsidiaries are and since the Applicable Date
+have been in compliance with all applicable Laws governing employment or labor,
+and employment practices, including all contractual commitments and all such
+Laws relating to terms and conditions of employment, wages, hours, worker
+classification (including the classification of independent contractors and
+exempt and non-exempt employees), immigration (including the completion of Forms
+I-9 for all employees and the proper confirmation of employee visas), collective
+bargaining, labor relations, employment harassment, discrimination or
+retaliation, whistleblowing, civil rights, equal opportunity, disability rights
+or benefits, safety and health, plant closures and layoffs (including the Worker
+Adjustment and Retraining Notification Act of 1988, as amended, or any similar
+Laws (“WARN Act”)), employee trainings and notices, employee leave issues,
+affirmative action, unemployment insurance and workers’ compensation, in each
+case, except as would not, individually or in the aggregate reasonably be
+expected to have a Company Material Adverse Effect.
+ 
+(iii)       The Company and its Subsidiaries have promptly investigated all
+written allegations of sexual harassment against officers, directors or
+employees of the Company and its Subsidiaries. With respect to each such written
+allegation which, in the Company’s determination, had potential merit, the
+Company or its Subsidiaries have taken prompt action that was reasonably
+calculated to prevent future improper action. The Company does not reasonably
+expect any material liabilities with respect to any such written allegations.
+ 
+(j)           Compliance with Laws, Licenses.
+ 
+(i)        (A) Since the Applicable Date, the business and other activities of
+the Company and its Subsidiaries has been, and is being, conducted in compliance
+with applicable Laws or Orders, except for such violations that would not,
+individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect.  (B) To the Knowledge of the Company, no investigation
+or review by any Governmental Entity with respect to the Company or any of its
+Subsidiaries is pending or threatened, nor, has any Governmental Entity
+indicated an intention to conduct the same, except for such investigations or
+reviews the outcome of which would not, individually or in the aggregate,
+reasonably be expected to have a Company Material Adverse Effect.
+ 
+24
+
+--------------------------------------------------------------------------------
+
+(ii)         Except as would not, individually or in the aggregate, reasonably
+be expected to have a Company Material Adverse Effect, (a) the Company and its
+Subsidiaries possess each permit, license, certification, approval,
+registration, consent, authorization, franchise, concession, variance, exemption
+and order issued or granted by a Governmental Entity, including Health Care
+Permits (each, a “License” and collectively, the “Licenses”) necessary to
+conduct their respective businesses as currently conducted, (b) all such
+Licenses are in full force and effect and (c) the Company and its Subsidiaries
+are in material compliance with all such Licenses and, to the Knowledge of the
+Company, no such Licenses are subject to any formal revocation, withdrawal,
+suspension, cancellation, termination or modification action by the issuing
+Governmental Entity that would reasonably be expected to have a Company Material
+Adverse Effect.
+ 
+(iii)        Except as would not, individually or in the aggregate, reasonably
+be expected to have a Company Material Adverse Effect, (A) the Company and its
+Subsidiaries and its and their respective officers, directors, employees and, to
+the Knowledge of the Company, agents are and since the Applicable Date have been
+in compliance with the provisions of the U.S. Foreign Corrupt Practices Act of
+1977, as amended (15 U.S.C. § 78dd-1, et seq.) (the “FCPA”) applicable to the
+Company, its Subsidiaries and such officers, directors, employees and agents and
+any other applicable anti-bribery and anti-corruption Laws of any jurisdiction
+in which the Company and its Subsidiaries operate and in which any agent thereof
+is conducting or has conducted business on behalf of the Company or any of its
+Subsidiaries and (B) neither the Company nor any of its Subsidiaries any
+director, manager or employee of the Company or any of its Subsidiaries (in his
+or her capacity as a director, manager or employee of the Company or any of its
+Subsidiaries), are, or since the Applicable Date have been, subject to any
+actual, pending, or, to the Knowledge of the Company, threatened Proceedings or
+enforcement actions before, nor have they made any voluntary disclosures to, any
+Governmental Entity, involving the Company or any of its Subsidiaries relating
+to the FCPA or any other anti-bribery and anti-corruption Laws.
+ 
+(iv)        This Section 5.1(j) shall not apply with respect to Intellectual
+Property, which shall be covered exclusively by Section 5.1(o), Environmental
+Laws, which shall be covered exclusively by Section 5.1(m) or Health Regulatory
+Laws (other than Health Care Permits), which shall be covered exclusively by
+Section 5.1(p).
+ 
+(k)          Material Contracts.
+ 
+(i)        The corresponding subsections of Section 5.1(k)(i) of the Company
+Disclosure Letter sets forth a list as of the date of this Agreement of each of
+the following Contracts (other than each Contract solely among the Company and
+its wholly owned Subsidiaries and other than any Company Plan) to which the
+Company or any of its Subsidiaries is a party or bound (such Contracts so listed
+or required to be listed, the “Material Contracts”) that:
+ 
+(A)          (I) materially restricts or affects the ability of the Company and
+its Subsidiaries to (x) compete in any line of business or in any geographic
+region or (y) use or enforce any Company IP owned by the Company or its
+Subsidiaries that is material to the businesses of the Company and its
+Subsidiaries, taken as a whole, or (II) which grants “most favored nation,”
+“exclusivity”, “non-solicitation”, (with respect to counterparty’s employees,
+customers, business relations, or other material counterparties or partners),
+minimum purchase requirements, right of first offer, right of first refusal, or
+similar rights or protections to the counterparty to such Contract that are
+material to the Company and its Subsidiaries, taken as a whole;
+ 
+25
+
+--------------------------------------------------------------------------------
+
+(B)          involves the formation, creation, operation, management or control
+of any partnership or joint venture or the sharing of revenues, profits, losses
+or costs, other than the Company or one of its wholly-owned Subsidiaries;
+ 
+(C)          is for the lease of personal property providing for annual payments
+of $1,000,000 or more;
+ 
+(D)         would be required to be filed by the Company as a “material
+contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities
+Act;
+ 
+(E)         was entered into with Affiliates of the Company or any of its
+Subsidiaries (other than the Company and its Subsidiaries);
+ 
+(F)          is a Contract (I) pursuant to which the Company or any of its
+Subsidiaries generated aggregate revenue in excess of $1,000,000 during the
+twelve (12) month period ended April 30, 2020 or (II) providing for the purchase
+of products or services by, or the licensing of Intellectual Property by or to,
+the Company or any of its Subsidiaries from a third party and that involved
+aggregate payments in excess of $1,000,000 during the twelve (12) month period
+ended April 30, 2020;
+ 
+(G)        is a settlement, conciliation or similar agreement or other agreement
+related to any Proceeding (x) with any Governmental Entity or (y) pursuant to
+which the Company or a Subsidiary will have any material outstanding obligation
+after the date of this Agreement;
+ 
+(H)        relates to the disposition or acquisition by the Company or its
+Subsidiaries of any material business or any material amount of assets or
+equipment (whether by merger, sale of stock, sale of assets or otherwise) since
+the Applicable Date;
+ 
+(I)           is with any of the (i) ten (10) largest revenue sources for the
+Company’s IFP segment, (ii) (x) ten (10) largest revenue sources the Company’s
+Medicare segment, in each case determined on the basis of revenues of the
+Company and its Subsidiaries as of the fiscal year ended December 31, 2019 and
+the five (5) months ended May 31, 2020;
+ 
+(J)           is with any of the ten (10) largest vendors or suppliers of the
+Company and its Subsidiaries determined on the basis of expenditures by the
+Company and its Subsidiaries as of the fiscal year ended December 31, 2019 and
+the five (5) months ended May 31, 2020;
+ 
+(K)         provides for any Indebtedness or permits the creation of any Lien,
+other than (i) accounts receivables and payables in the ordinary course of
+business; and (ii) loans to wholly-owned Subsidiaries of the Company in the
+ordinary course of business;
+
+
+26
+
+--------------------------------------------------------------------------------
+
+(L)        provides for or obligates the Company or its Subsidiaries to
+indemnify, hold harmless or defend any Person (including officers, directors,
+members, managers, partners, employees or agents of the Company or its
+Subsidiaries), other than third-party commercial Contracts entered into in the
+ordinary course of business, the primary purpose of which is not related to the
+indemnification of any Persons;
+ 
+(M)        provides for capital expenditures in excess of $5,000,000;
+ 
+(N)         is a CBA;
+ 
+(O)       is a Contract for the employment or engagement of (x) any directors or
+officers or (y) employees or independent contractors with annual base salary in
+excess of $250,000 or total annual cash compensation that would reasonably be
+expected to be in excess of $500,000;
+ 
+(P)         provides for any obligations with respect to vendor or distributor
+advances (including commission advances) or any other advances; and
+ 
+(Q)         is a Contract to enter into any of the Contracts described in this
+Section 5.1(k)(i).
+ 
+(ii)         A correct and complete copy of each Material Contract, as amended
+as of the date of this Agreement, has been made available to Parent.  Each of
+the Material Contracts is valid and binding on the Company or its Subsidiaries,
+as the case may be, and, to the Knowledge of the Company, each other party
+thereto, and is in full force and effect, except for such failures to be valid
+and binding or to be in full force and effect as would not, individually or in
+the aggregate, reasonably be expected to have a Company Material Adverse
+Effect.  Neither the Company nor any of its Subsidiaries nor, to the Knowledge
+of the Company, any other party is in breach of or in default under any Material
+Contract, and no event has occurred that, with the lapse of time or the giving
+of notice or both, would constitute a default thereunder by the Company or any
+of its Subsidiaries, in each case, except for such breaches and defaults as
+would not, individually or in the aggregate, reasonably be expected to have a
+Company Material Adverse Effect.
+ 
+(l)         Takeover Statutes.  No “fair price”, “moratorium”, “control share
+acquisition” or other similar anti-takeover statute or regulation, including
+Section 203 of the DGCL, (each, a “Takeover Statute”) or any anti-takeover
+provision in the Company Certificate of Incorporation or Company Bylaws is
+applicable to the Company, the Shares, the Offer, the Merger or the other
+transactions contemplated by this Agreement.
+ 
+27
+
+--------------------------------------------------------------------------------
+
+(m)        Environmental Matters.  Except for such matters that have not and
+would not, individually or in the aggregate, reasonably be expected to have a
+Company Material Adverse Effect, (i) each of the Company and its Subsidiaries is
+and has been since the Applicable Date in compliance with all Environmental
+Laws, which compliance includes obtaining, maintaining and complying with all
+permits, licenses or authorizations required by Environmental Laws, (ii) neither
+the Company nor any of its Subsidiaries is subject to any pending Proceeding,
+and, to the Knowledge of the Company, no such Proceeding is threatened in
+writing, alleging non-compliance with or liability under any Environmental Law,
+(iii) neither the Company nor any of its Subsidiaries is subject to any
+outstanding obligations under any orders, decrees or injunctions concerning
+liability or obligations relating to any Environmental Law, and (iv) neither the
+Company nor any of its Subsidiaries has treated, stored, transported, generated,
+manufactured, handled, disposed or, arranged for the disposal of, released or
+exposed any Person to, or owned or operated any property or facility
+contaminated by, any Hazardous Substances, in each case so as to give rise to
+liability under any Environmental Law. This Section 5.1(m) constitutes the
+exclusive representations and warranties of the Company with respect to the
+subject matters set forth in this Section 5.1(m).
+ 
+(n)          Taxes.
+ 
+(i)         The Company and each of its Subsidiaries (A) have timely filed
+(taking into account all applicable extensions) all income and other material
+Tax Returns required to be filed by any of them and all such filed Tax Returns
+are complete and accurate in all material respects and (B) have paid all
+material Taxes that are required to be paid by any of them (other than Taxes
+that are not yet delinquent or that are being contested in good faith and for
+which adequate accruals have been made on the financial statements of the
+Company and its Subsidiaries in accordance with GAAP).
+ 
+(ii)         There are no pending or, to the Knowledge of the Company,
+threatened audits, examinations, investigations or other proceedings in respect
+of material Taxes of the Company or any of its Subsidiaries.  There are not any
+claims or assessments asserted in writing by any Governmental Entity concerning
+material Taxes of the Company or any of its Subsidiaries.  No written claim has
+ever been made to the Company or any of its Subsidiaries by a Governmental
+Entity in a jurisdiction where the Company or any of its Subsidiaries does not
+file Tax Returns that the Company or such Subsidiary, as the case may be, is or
+may be subject to material taxation or required to file material Tax Returns in
+that jurisdiction.
+ 
+(iii)        There are no Tax Liens upon any property or assets of the Company
+or any of its Subsidiaries except for Permitted Liens.
+ 
+(iv)        Neither the Company nor any of its Subsidiaries has participated in
+a “reportable transaction” (other than a “loss transaction”) within the meaning
+of Treasury Regulation Section 1.6011-4(b).
+ 
+(v)         Within the past two years, neither the Company nor any of its
+Subsidiaries has been a “distributing corporation” or a “controlled corporation”
+in a distribution intended to qualify under Section 355(a) or 361 of the Code
+(or any similar provision of state, local or non-U.S. Law).
+ 
+28
+
+--------------------------------------------------------------------------------
+
+(vi)        Neither the Company nor any of its Subsidiaries (A) has been a
+member of an affiliated or similar group filing a consolidated, combined,
+unitary or similar Tax Return (other than a group the common parent of which was
+the Company or any of its Subsidiaries) or (B) has any liability for the Taxes
+of any Person (other than the Company or any of its Subsidiaries) under Treasury
+Regulation Section 1.1502-6 (or any similar provision of state, local or
+non-U.S. Law), as a transferee or successor, by contract, or otherwise under
+applicable Law (other than any such liability for Taxes pursuant to any contract
+entered into in the ordinary course of business the principal purpose of which
+does not relate to Taxes).
+ 
+(vii)       All material Taxes required to be withheld by the Company and its
+Subsidiaries have been timely withheld and paid over to the appropriate
+Governmental Authority.  Neither the Company nor any of its Subsidiaries has
+waived any statute of limitations in respect of any material Taxes or agreed to
+any extension of time with respect to any material Tax assessment or deficiency
+(other than (x) any waivers or extensions that are no longer in effect or (y)
+pursuant to extensions of time to file Tax Returns obtained in the ordinary
+course).
+ 
+(viii)      None of the Company or any of its Subsidiaries is a party to or
+bound by (A) any Tax sharing, Tax allocation, Tax indemnity or similar agreement
+or arrangement (other than any contract, agreement, or arrangement entered into
+in the ordinary course of business the principal purpose of which does not
+relate to Taxes) or (B) any closing agreement (within the meaning of Section
+7121(a) of the Code (or any similar or analogous provision of state or local
+Law)) or other ruling or written agreement with a Tax authority, in each case,
+with respect to any material Taxes.
+ 
+(ix)        The Company and each of its Subsidiaries has timely paid all
+material amounts to the applicable Governmental Entity and timely filed all
+material applicable reports or returns with the applicable Governmental Entity
+as required pursuant to any escheatment, abandoned or unclaimed property Law.
+ 
+(o)          Intellectual Property.
+ 
+(i)        Section 5.1(o)(i) of the Company Disclosure Letter sets forth a list
+of all registered or applied for patents, trademarks, and copyrights owned by
+the Company or any of its Subsidiaries (“Registered IP”). All Registered IP that
+is material to the conduct of the Company and its Subsidiaries, taken as a
+whole, is subsisting and, to the Knowledge of the Company and in the
+jurisdiction(s) where such Registered IP is issued or registered, is valid and
+enforceable. Except as would not reasonably be expected to have a Company
+Material Adverse Effect, the Company or one of its Subsidiaries is the exclusive
+owner of the Registered IP, free and clear of all liens other than Permitted
+Liens.
+ 
+(ii)      Except as would not reasonably be expected to have a Company Material
+Adverse Effect, each of the Company and its Subsidiaries owns, or has sufficient
+rights to use, all Intellectual Property necessary for its business as currently
+conducted (the “Company IP”), free and clear of all Liens, except for Permitted
+Liens.
+ 
+29
+
+--------------------------------------------------------------------------------
+
+(iii)      To the Knowledge of the Company and except as would not reasonably be
+expected to have a Company Material Adverse Effect: (A) the Company and its
+Subsidiaries have not since the Applicable Date infringed, misappropriated or
+otherwise violated, and do not, infringe, misappropriate or otherwise violate,
+the Intellectual Property rights of any third party and there are no pending
+proceedings, administrative claims, litigation, suits, actions or investigations
+alleging the same (B) no third party is infringing, misappropriating or
+otherwise violating any Company IP owned by the Company or any of its
+Subsidiaries, and (C) none of the Company nor any of its Subsidiaries has
+received written notice from any third party alleging that the operation of the
+business of the Company or any of its Subsidiaries infringes, misappropriates,
+dilutes or otherwise violates the Intellectual Property of such third party.
+ 
+(iv)        Except as would not, individually or in the aggregate, reasonably be
+expected to be material to the Company and its Subsidiaries, taken as a whole:
+(A) the Company and its Subsidiaries have implemented and maintained
+commercially reasonable policies and procedures designed to protect the
+security, integrity and privacy of Personal Data and backup, security and
+disaster recovery technology and procedures, (B) the Company and its
+Subsidiaries are in all material respects in compliance with applicable Laws and
+Orders regarding the privacy and security of customer, employee and other
+Personal Data and are compliant in all material respects with their respective
+privacy policies, (C) to the Knowledge of the Company, there have not been any
+incidents of, or third party claims related to, any theft, loss, security
+breaches, unauthorized access to, or unauthorized disclosure or use of, any
+Personal Data in the Company’s or any of its Subsidiaries’ possession and (D)
+neither the Company nor any of its Subsidiaries has received since the
+Applicable Date any written notice of any material claims, investigations
+(including investigations by any Governmental Entity), or alleged violations of
+any Laws and Orders with respect to Personal Data possessed by the Company or
+any of its Subsidiaries.
+ 
+(v)         Except as would not reasonably be expected to have a Company
+Material Adverse Effect, since the Applicable Date, there have been no material
+failures, crashes, or other adverse events affecting the Company Systems that
+have materially and adversely affected the business of the Company or any of its
+Subsidiaries. Except as would not, individually or in the aggregate, reasonably
+be expected to have a Company Material Adverse Effect, to the Knowledge of the
+Company, there are (A) no defects in any of the proprietary products or services
+of the Company or any of its Subsidiaries that would prevent the same from
+performing materially in accordance with the Company’s obligations to
+counterparties under any Contract; and (B) no viruses, worms, Trojan horses or
+similar disabling codes or programs in any of the same introduced by the Company
+or any of its Subsidiaries or any of their respective employees in any such
+product or service. Except as would not, individually or in the aggregate,
+reasonably be expected to have a Company Material Adverse Effect, the Company
+and its Subsidiaries possess all source code and other materials (other than
+Open Source Software) that embody Company IP owned by the Company or any of its
+Subsidiaries and neither the Company nor any of its Subsidiaries has any duty or
+obligation (whether present, contingent, or otherwise) to disclose, deliver,
+license, or otherwise make available, any proprietary source code (excluding,
+for clarity, any Open Source Software) that embodies Company IP owned by the
+Company or any of its Subsidiaries to any third party, and neither the Company
+nor any of its Subsidiaries has done the same.  Except as would not,
+individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect, the Company and its Subsidiaries are in material
+compliance with all terms and conditions of any license for Open Source
+Software.
+ 
+30
+
+--------------------------------------------------------------------------------
+
+(vi)        This Section 5.1(o) constitutes the exclusive representations and
+warranties of the Company with respect to the subject matters set forth in this
+Section 5.1(o).
+ 
+(p)          Compliance with Health Regulatory Laws.
+ 
+(i)          (A) Except as would not reasonably be expected to have a Company
+Material Adverse Effect, the Company and its Subsidiaries are in compliance with
+all applicable Health Regulatory Laws.  (B) Since the Applicable Date, neither
+the Company nor any of its Subsidiaries has received any written notice,
+including any whistleblower complaint or qui tam suit, from any Governmental
+Entity regarding any material violation of any applicable Health Regulatory
+Laws, nor, to the Knowledge of the Company, has any such notice, action or
+assertion been filed or commenced, nor, has any Governmental Entity indicated an
+intention to file or commence the same, against the Company or  any of its
+Subsidiaries alleging that the Company or any of its Subsidiaries is not in
+material compliance with the Health Regulatory Laws.
+ 
+(ii)        Neither the Company nor any of its Subsidiaries nor, to the
+Knowledge of the Company, any of their respective directors, officers, or
+managing employees (as such term is defined in 42 U.S.C. § 1320a-5(b)), acting
+on their behalf:
+ 
+(A)         are or have been convicted of or pled nolo contendere to sufficient
+facts regarding, any violation of a Health Regulatory Law, including any Law
+applicable to a health care program defined in 42 U.S.C. §1320a-7b(f) (“Federal
+Health Care Program”) or any other criminal offense that would result in
+mandatory exclusion from Federal Health Care Programs;
+
+
+(B)         are or have been excluded, suspended or debarred from participation
+in, or are otherwise ineligible to participate in, any Federal Health Care
+Program or listed on the General Services Administration-published list of
+parties excluded from procurement programs and non-procurement programs;
+ 
+(C)         have entered into any corporate integrity agreement, deferred
+prosecution agreement, non-prosecution agreement, or similar agreement with any
+Governmental Authority with respect to any actual or alleged violation of any
+Health Regulatory Law;
+ 
+(D)         have made, or are in the process of making, or are considering
+making a voluntary self-disclosure as may be required or permitted under any
+Health Regulatory Law; or
+ 
+(E)          have knowingly made an untrue or fraudulent statement to any
+Governmental Entity or knowingly failed to disclose a fact required to be
+disclosed to a Governmental Entity.
+ 
+31
+
+--------------------------------------------------------------------------------
+
+(iii)       Since the Applicable Date through the date of this Agreement,
+neither the Company nor any of its Subsidiaries has received written notice from
+any Governmental Entity indicating that the Company or any of its Subsidiaries
+is subject to any sanctions or enforcement actions by any Governmental Entity
+responsible for the oversight or enforcement of Health Regulatory Laws,
+including any outstanding fines, injunctions, civil, administrative or criminal
+penalties, settlement, investigations or suspensions, except where such
+sanctions or enforcement action would not reasonably be expected to have a
+Company Material Adverse Effect.  Except as would not, individually or in the
+aggregate, reasonably be expected to be material to the Company and its
+Subsidiaries, neither the Company nor any of its Subsidiaries is, nor from the
+Applicable Date to the date of this Agreement has been:
+ 
+(A)         subject to any reporting obligations pursuant to any settlement
+agreement entered into with any Governmental Entity relating to alleged
+non-compliance with any applicable Health Regulatory Laws; or
+ 
+(B)       except for the Company’s and its Subsidiaries’ satisfaction of routine
+requests made by Governmental Entities which do not impact the Company’s or its
+Subsidiaries’ business or operations, a party to any agreement, settlement,
+consent decree, monitoring agreement or other similar agreement with any
+Governmental Entity addressing measures to satisfy compliance with any
+applicable Health Regulatory Laws.
+ 
+(iv)      Except as would not reasonably be expected to have a Company Material
+Adverse Effect, the Company and each of its Subsidiaries is in compliance with
+the Health Insurance Portability and Accountability Act of 1996, as amended by
+the Health Information Technology for Economic and Clinical Health Act (Title
+XIII of the American Recovery and Reinvestment Act of 2009), and any and all
+implementing rules and regulations of a Governmental Entity as of the date
+hereof (collectively, “HIPAA”), and all material business associate agreements
+and other agreements pertaining to the protection of patient data or protected
+health information.
+ 
+(q)         Properties.  Neither the Company nor any of its Subsidiaries owns
+any real property. Except as would not reasonably be expected to have a Company
+Material Adverse Effect, (i) each lease, sublease or license (each, a “Lease”)
+under which the Company or any of its Subsidiaries leases, subleases or licenses
+any land, buildings, structures, improvements, fixtures or other interest in
+real property (the “Leased Real Property”) is legal, valid, binding, enforceable
+and in full force and effect, (ii) neither the Company nor any of its
+Subsidiaries, nor to the Knowledge of the Company any other party to a Lease,
+has violated any provision of, or taken or failed to take any act which, with
+notice, lapse of time, or both, would constitute a breach or default under the
+provisions of such Lease, and neither the Company nor any of its Subsidiaries
+has received notice that it has breached, violated or defaulted under any
+Lease.  Section 5.1(q) of the Company Disclosure Letter sets forth a complete
+and correct list, as of the date hereof, of each Lease to which the Company or
+any of its Subsidiaries is a party that is material to the Company and its
+Subsidiaries, taken as a whole, including the identity of the lessor and lessee
+and the address of each material parcel of Leased Real Property subject thereto.
+The Leased Real Property identified in Section 5.1(q) of the Company Disclosure
+Letter comprises all of the real property used in the business of the Company
+and its Subsidiaries.
+ 
+32
+
+--------------------------------------------------------------------------------
+
+(r)          Insurance.  Except as would not reasonably be expected to have a
+Company Material Adverse Effect, all insurance policies of the Company and its
+Subsidiaries relating to the business, assets and operations of the Company and
+its Subsidiaries are in full force and effect, are sufficient to comply with
+applicable Law and provide insurance in such amounts and against such risks as
+the Company reasonably has determined to be prudent, taking into account the
+industries in which the Company and its Subsidiaries operate, and no notice of
+cancellation or modification has been received by the Company or any of its
+Subsidiaries, and to the Knowledge of the Company there is no existing default
+or event which with the giving of notice or lapse of time or both, would
+constitute a default by the Company or its Subsidiaries thereunder and all
+premiums due thereunder on or prior to the date hereof have been paid.  As of
+the date of this Agreement, there is no material claim by the Company or any of
+its Subsidiaries pending under any such insurance policy as to which coverage
+has been questioned, denied or disputed by the underwriters of such policies.
+ 
+(s)          Financial Advisor Opinion.  The board of directors of the Company
+has received an oral opinion from BofA Securities, Inc. (“BofA”), to be
+confirmed by delivery of a written opinion, dated as of July 12, 2020, to the
+effect that, as of the date of such opinion and based upon and subject to the
+various assumptions and limitations set forth therein, the Merger Consideration
+or Offer Price to be received by holders of Class A Shares (other than holders
+of Excluded Shares or Dissenting Shares) pursuant to this Agreement is fair,
+from a financial point of view, to such holders. A copy of such opinion will be
+made available to Parent solely for informational purposes promptly following
+the execution of this Agreement.
+ 
+(t)          Brokers and Finders.  The Company has not employed any broker or
+finder or incurred any liability for any brokerage fees, commissions or finders’
+fees in connection with the Offer, the Merger or the other transactions
+contemplated in this Agreement, except that the Company has engaged BofA as the
+Company’s financial advisor, the financial arrangements with which have been
+disclosed in writing to Parent on or prior to the date of this Agreement.
+ 
+(u)          Related Party Transactions.  Since the Applicable Date, other than
+the relationships and contracts that will be terminated pursuant to the Exchange
+Agreement and the TRA Termination Agreement, no event has occurred and no
+relationship exists that would be required to be disclosed under Item 404 of
+Regulation S-K promulgated by the SEC Agreement.
+ 
+(v)        Reserves. The aggregate claims reserves of Benefytt, LLC (including
+reserves established under Law or otherwise for payment of benefits, losses,
+claims, expenses and similar purposes (including claims litigation) with respect
+to its insurance business) were determined, in all material respects, in
+accordance with generally accepted actuarial standards and meet, in all material
+respects, the requirements of applicable Law with respect to the establishment
+of claims reserves.
+ 
+33
+
+--------------------------------------------------------------------------------
+
+(w)        No Other Representations and Warranties.  Except for the express
+representations and warranties of the Company contained in this Agreement and
+the Transaction Documents to which the Company is a party, the Company is not
+making and has not made and no other Person is making or has made on behalf of
+the Company, any express or implied representation or warranty in connection
+with this Agreement or the transactions contemplated hereby; and neither the
+Company nor any Person on behalf of the Company is making, or has made, any
+express or implied representation or warranty with respect to the Company or any
+of its Subsidiaries or their respective businesses or with respect to any other
+information made available to Parent or Merger Sub or their representatives in
+connection with the transactions contemplated by this Agreement.  Except for the
+representations and warranties expressly set forth in this Agreement and the
+Transaction Documents to which the Company is a party the Company hereby
+disclaims and shall have no liability or responsibility for any and all
+projections, forecasts, estimates, financial statements, financial information,
+appraisals, statements, promises, advice, data or information made, communicated
+or furnished (orally or in writing, including electronically) to Parent or any
+of Parent’s Affiliates or any Representatives of Parent or any of Parent’s
+Affiliates, including omissions therefrom.  Without limiting the foregoing, the
+Company makes no representation or warranty of any kind whatsoever, express or
+implied, written or oral, at law or in equity, to Parent or any of its
+Affiliates or any Representatives of Parent of any of its Affiliates regarding
+the success, profitability or value of the Company.  Notwithstanding the
+foregoing, nothing herein shall limit the right of Parent to rely on the
+representations and warranties of the Company expressly set forth in this
+Agreement and the Transaction Documents to which the Company is a party.
+ 
+5.2        Representations and Warranties of Parent and Merger Sub.  Except as
+set forth in the corresponding sections or subsections of the disclosure letter
+delivered to the Company by Parent at the time of entering into this Agreement
+(the “Parent Disclosure Letter”) (it being understood that any disclosure set
+forth in one section or subsection of the Parent Disclosure Letter shall be
+deemed to be disclosed with respect to, and shall be deemed to apply to and
+qualify, the section or subsection of this Agreement to which it corresponds and
+each other section or subsection of this Agreement to the extent it is
+reasonably apparent on the face of such disclosure that such disclosure also
+applies to and qualifies such other section or subsection of this Agreement),
+Parent and Merger Sub hereby represent and warrant to the Company as follows:
+ 
+(a)         Organization, Good Standing and Qualification.  Each of Parent and
+Merger Sub (i) is a legal entity duly organized, validly existing and in good
+standing under the Laws of its respective jurisdiction of organization, (ii) has
+all requisite corporate or similar power and authority to own, lease and operate
+its properties and assets and to carry on its business as presently conducted,
+and (iii) is in good standing as a foreign legal entity (to the extent such
+concept is recognized under applicable Law) in each jurisdiction where the
+ownership, leasing or operation of its assets or properties or conduct of its
+business requires such qualification, except in the cases of (ii) and (iii)
+where the failure to be so qualified or in good standing, or to have such power
+or authority, would not, individually or in the aggregate, reasonably be
+expected to have a Parent Material Adverse Effect.  Prior to the date of this
+Agreement, Parent has made available to the Company complete and correct copies
+of the certificate of incorporation and bylaws of Parent and certificate of
+incorporation and bylaws of Merger Sub, in each case as amended to and in effect
+on the date of this Agreement.
+ 
+34
+
+--------------------------------------------------------------------------------
+
+(b)       Ownership of Merger Sub.  The authorized capital stock of Merger Sub
+consists of 1,000 Merger Sub Shares. As of the date of this Agreement, there are
+1,000 Merger Sub Shares issued and outstanding, all of which were duly
+authorized and are validly issued, fully paid and non-assessable.  All of the
+issued and outstanding capital stock of Merger Sub is, and at the Effective Time
+will be, owned, directly or indirectly, by Parent, and there are (A) no other
+shares of capital stock or securities of Merger Sub existing, issued or
+outstanding, (B) no securities of Merger Sub convertible into or exchangeable or
+exercisable for equity securities or other securities of Merger Sub or any other
+Person and (C) no options or other rights to acquire from Merger Sub, and no
+obligations of Merger Sub to issue, any securities or securities convertible
+into or exchangeable or exercisable for any securities of Merger Sub.  Merger
+Sub was formed solely for purposes of engaging in the transactions contemplated
+by this Agreement and has not conducted any business prior to the date of this
+Agreement and does not have any assets, liabilities or obligations of any nature
+other than those incident to its formation, and prior to the Effective Time will
+not have engaged in any business and will not have any assets, liabilities or
+obligations other than those arising pursuant to this Agreement and the
+transactions contemplated hereby, including the Merger.
+ 
+(c)         Corporate Authority; Approval.  Each of Parent and Merger Sub have
+all requisite corporate power and authority and each has taken all corporate
+action necessary in order to execute and deliver this Agreement, to perform its
+obligations under this Agreement and to consummate the other transactions
+contemplated hereby, including the Offer and the Merger (subject, in the case of
+Merger Sub, to obtaining the approval contemplated by Section 6.16).  This
+Agreement has been duly executed and delivered by Parent and Merger Sub and
+(assuming the due and valid execution hereof by the Company) constitutes a valid
+and binding agreement of Parent and Merger Sub, enforceable against each of
+Parent and Merger Sub in accordance with its terms, subject to the Bankruptcy
+and Equity Exception.  The approval of Parent as the sole stockholder of Merger
+Sub that is to be delivered pursuant to Section 6.16 is the only vote or
+approval required in order for Parent and Merger Sub to execute and deliver this
+Agreement, to perform their obligations under this Agreement, or to consummate
+the transactions contemplated hereby, including the Offer and the Merger, on the
+terms and subject to the conditions of this Agreement.
+ 
+(d)          Governmental Filings; No Violations.
+ 
+(i)          Other than (A) the filing of the Certificate of Merger pursuant to
+Section 1.4, (B) as required under the HSR Act in connection with the Offer or
+the Merger, (C) as set forth on Section 5.2(d)(i)(C) of the Parent Disclosure
+Letter (the “Parent Required Regulatory Law Filings” and, together with the
+Company Required Regulatory Law Filings, the “Required Regulatory Law Filings”),
+(D) any filings with the SEC required to be made pursuant to Section 1.1(f) or
+(g) of this Agreement and (E) such filings notices, reports, consents,
+registrations, approvals, permits expirations of waiting periods or
+authorizations that the failure to give, make or obtain would not, individually
+or in the aggregate, have or reasonably be expected to have a Parent Material
+Adverse Effect, no filings, notices and/or reports are required to be made by
+Parent or Merger Sub or their Subsidiaries with, nor are any consents,
+registrations, approvals, permits, expirations of waiting periods or
+authorizations required to be obtained by Parent or Merger Sub or their
+Subsidiaries from, any Governmental Entity in connection with the execution,
+delivery and performance of this Agreement or the consummation by Parent and
+Merger Sub of the Offer, the Merger and the other transactions contemplated
+hereby.
+ 
+35
+
+--------------------------------------------------------------------------------
+
+(ii)         The execution, delivery and performance of this Agreement by Parent
+and Merger Sub does not, and the consummation by Parent and Merger Sub of the
+Merger and the other transactions contemplated hereby will not, (A) contravene
+or constitute or result in a breach or violation of, or a default under, the
+respective certificates of incorporation or bylaws of Parent and Merger Sub, (B)
+with or without the lapse of time or the giving of notice or both, result in a
+breach or violation of or constitute a default under, permit any termination,
+cancellation, or modification (or right of termination, cancellation, or
+modification) of or right to payment of additional fees under, create or
+accelerate any obligations under, or result in the creation of a Lien on any of
+the assets of Parent or any of its Subsidiaries pursuant to, any Contract
+binding upon Parent or any of its Subsidiaries, or (C) assuming the filings,
+notices, reports, consents, registrations, approvals, permits, expirations of
+waiting periods and authorizations referred to in Section 5.2(d)(i) are made or
+obtained, contravene, conflict with or result in any violation under any Law,
+Order or License to which Parent or any of its Subsidiaries is subject, except,
+in the case of clauses (B) and (C), for any such breaches, violations, defaults,
+terminations, cancellations, modifications, payments, accelerations, creations,
+changes, contraventions, or conflicts that would not, individually or in the
+aggregate, reasonably be expected to have a Parent Material Adverse Effect.
+ 
+(e)          Litigation. As of the date of this Agreement, there are no
+Proceedings pending or, to the Knowledge of Parent, threatened against Parent or
+Merger Sub that seek to enjoin, or that would reasonably be expected to have the
+effect of preventing or making illegal, any of the transactions contemplated by
+this Agreement, or that, individually or in the aggregate, would otherwise
+reasonably be expected to have a Parent Material Adverse Effect.
+ 
+(f)        Brokers and Finders.  Parent has not employed any broker or finder or
+incurred any liability for any brokerage fees, commissions or finders’ fees in
+connection with the Offer, the Merger or the other transactions contemplated by
+this Agreement, except that Parent has employed SunTrust Robinson Humphrey, Inc.
+as its financial advisor and incurred or will incur liability to such financial
+advisor.
+ 
+(g)          Financial Ability.
+ 
+(i)          Assuming the funding of the full amount of the Financing pursuant
+to the terms of the Commitment Letters (assuming that all rights to flex the
+terms of the Debt Financing are exercised to their maximum extent), Parent will
+have as of the Effective Time, sufficient cash on hand (x) for the satisfaction
+of all of Parent’s and Merger Sub’s obligations under this Agreement required to
+be paid by Parent or Merger Sub at the Effective Time, including, without
+limitation, the payment of the Offer Acceptance Consideration, the aggregate
+Merger Consideration, all other amounts payable by Parent or Merger Sub pursuant
+to Article IV, (y) to pay off, satisfy, terminate and discharge the Existing
+Credit Facility, including the release of any guarantees relating thereto and
+the release of any Liens or other security thereunder (the “Debt Payoff”), and
+(z) to pay all fees and expenses required to be paid by Parent, Merger Sub or
+the Surviving Corporation on the Closing Date in connection with the
+transactions contemplated by this Agreement (such amount, the “Required
+Financing Amount”).
+ 
+36
+
+--------------------------------------------------------------------------------
+
+(ii)         Simultaneous with the execution of this Agreement, Parent has
+delivered to the Company (A) a correct and complete copy of a fully executed
+debt commitment letter, addressed to Merger Sub from the lenders party thereto
+(together with their permitted successors and assigns, and any lenders that
+become a party thereto pursuant to amendments, restatements and joinders, in
+each case in accordance with the terms hereof and thereof (collectively, the
+“Lenders”)) and dated the date hereof, together with all related term sheets,
+fee letters and side letters (if any), including with respect to all related
+“market flex” rights (each as customarily redacted to remove any fees and other
+economic terms, none of which would result in any additional conditionality to
+the availability of the financing contemplated thereby, adversely impact the
+enforceability (or alter the termination provisions thereof) or reduce the
+aggregate principal amount of the financing contemplated thereby (other than the
+implementation of additional upfront fees as expressly set forth therein)) (in
+each case, together with all exhibits, schedules, annexes, supplements and term
+sheets forming part thereof, and as replaced, amended or modified only in
+accordance with Section 6.15, the “Bank Commitment Letter”) pursuant to which
+the Lenders have committed to provide Parent with debt financing in the
+aggregate amount set forth therein (the “Bank Financing”) and (B) a correct and
+complete copy of a fully executed preferred stock commitment letter, addressed
+to Daylight Beta Intermediate Corp., a Delaware corporation (the “Issuer”), and
+a direct or indirect parent company of Parent, from the purchasers party thereto
+(together with their permitted successors and assigns, and any purchasers that
+become a party thereto pursuant to amendments, restatements and joinders, in
+each case in accordance with the terms hereof and thereof (collectively, the
+“Purchasers” and, together with the Lenders, collectively, the “Debt Commitment
+Parties”) and dated the date hereof, together with all related term sheets, fee
+letters and side letters (if any) (each as customarily redacted to remove any
+fees and other economic terms, none of which would result in any additional
+conditionality to the availability of the financing contemplated thereby,
+adversely impact the enforceability (or alter the termination provisions
+thereof) or reduce the aggregate principal amount of the financing contemplated
+thereby) (in each case, together with all exhibits, schedules, annexes,
+supplements and term sheets forming part thereof, and as replaced, amended or
+modified only in accordance with Section 6.15, the “Preferred Stock Commitment
+Letter” and, together with the Bank Commitment Letter, the “Debt Commitment
+Letters”), pursuant to which the Purchasers have committed to purchase from the
+Issuer preferred stock with the initial liquidation preference set forth therein
+(the “Preferred Stock Financing” and, together with the Bank Financing,
+collectively, the “Debt Financing”), the proceeds of which will be used, in
+whole or in part, to fund Parent’s payment of the Offer Acceptance
+Consideration, the Merger Consideration and other amounts payable by Parent or
+Merger Sub pursuant to this Agreement and related fees and expenses.
+ 
+37
+
+--------------------------------------------------------------------------------
+
+(iii)         Simultaneous with the execution of this Agreement, Parent has
+delivered to the Company a correct and complete copy of a fully executed
+commitment letter addressed to Parent from Madison Dearborn Capital Partners
+VIII-A, L.P, Madison Dearborn Capital Partners VIII-C, L.P., Madison Dearborn
+Capital Partners VIII Executive-A, L.P., each a Delaware limited partnership
+(collectively, the “Equity Investor”) and dated as of the date hereof (as
+amended or modified only in accordance with Section 6.15, the “Equity Commitment
+Letter” and, together with the Debt Commitment Letters, the “Commitment
+Letters”), pursuant to which the Equity Investor has committed, subject to the
+terms and conditions thereof, to provide equity financing to fund a portion of
+the Offer Acceptance Consideration, the Merger Consideration and other amounts
+payable hereunder through an investment in the aggregate amount set forth
+therein (the “Equity Financing” and, together with the Debt Financing, the
+“Financing”).  The aggregate amount of the Financing set forth in the Commitment
+Letters is sufficient to fund the Required Financing Amount when required
+pursuant to this Agreement.
+ 
+(iv)         As of the date of this Agreement, the Equity Commitment Letter is a
+legal, valid and binding obligation of the parties thereto, is in full force and
+effect, and is enforceable against the parties thereto in accordance with its
+terms, subject only to the Bankruptcy and Equity Exception.  As of the date of
+this Agreement, each Debt Commitment Letter is a legal, valid and binding
+obligation of the Issuer or Merger Sub, as applicable, to the Knowledge of
+Parent, the other parties thereto, is in full force and effect, and is
+enforceable against the parties thereto in accordance with its terms, subject
+only to the Bankruptcy and Equity Exception.
+ 
+(v)          There are no side letters or other Contracts to which Parent or any
+of its Affiliates is a party relating to the Financing other than (A) as
+expressly set forth in the Commitment Letters or provided to the Company on or
+prior to the date hereof and (B) customary engagement letter(s) or nondisclosure
+agreement(s) or other Contracts that do not adversely impact the conditionality,
+availability or aggregate amount of the Financing.
+ 
+(vi)         The Equity Commitment Letter provides, and will continue to
+provide, that the Company is a third party beneficiary thereof and is entitled
+to enforce such agreement to the extent provided therein, and that Parent and
+the Equity Investor have waived any defenses to the enforceability of such third
+party beneficiary rights, in each case in accordance with its terms and subject
+to the limitations set forth therein and herein, including Section 9.13
+(Specific Performance).
+ 
+38
+
+--------------------------------------------------------------------------------
+
+(vii)      As of the date of this Agreement, (A) none of the Commitment Letters
+has been amended, restated or otherwise modified (and no such amendment,
+restatement or modification is contemplated) and (B) the respective commitments
+set forth in the Commitment Letters have not been reduced, withdrawn, rescinded,
+amended, restated or otherwise modified in any respect (and no such reduction,
+withdrawal, rescission, amendment, restatement or modification is contemplated
+by Parent or, to the Knowledge of Parent, any other party thereto), in each case
+except in connection with any amendments, restatements or modifications to
+effectuate any "market flex" terms contained in the Debt Commitment Letters or
+to add additional lenders, arrangers or agents thereto and re-allocate the
+commitments among such Persons in each case as provided for therein).  As of the
+date of this Agreement, none of Parent, the Issuer or Merger Sub is in breach of
+or default under any Commitment Letter to which it is a party, and no event has
+occurred which would (or that with notice or lapse of time or both would) result
+in a breach of, or constitute a default by Parent, the Issuer or Merger Sub, as
+applicable, under, any term or condition in the Commitment Letter to which it is
+a party, and to the Knowledge of Parent, no other party thereto is in breach of
+or default under any of the Commitment Letters and no event has occurred which
+would (or with notice or lapse of time or both would) constitute a breach of, or
+a default by, any such party under any term of or condition in the Commitment
+Letters, or otherwise result in any portion of the Financing contemplated
+thereby to be unavailable or materially delayed. As of the date of this
+Agreement, no party to any Commitment Letter has notified Parent of its
+intention to terminate such Commitment Letter in whole or in part prior to the
+Closing Date or not to provide any portion of the Financing contemplated
+thereby.  There are no conditions precedent related to the funding of the full
+amount of the Financing other than as expressly set forth in the Commitment
+Letters.  As of the date hereof, Parent (x) is not aware of any fact or
+occurrence that makes any of the representations or warranties of Parent, the
+Issuer or Merger Sub, as applicable, in any of the Commitment Letters inaccurate
+(taking into account any qualifiers as to knowledge and materiality in such
+representations and warranties), (y) has no reason to believe that it will be
+unable to satisfy on a timely basis any condition to be satisfied by it , the
+Issuer or Merger Sub, as applicable, contained in the Commitment Letter to which
+it is a party and (y) has no reason to believe that the Required Financing
+Amount will not be available to Parent on the Closing Date, including any reason
+to believe that either the Equity Investor or the Debt Commitment Parties will
+not perform their respective funding obligations under the Commitment Letters to
+which they are a party in accordance with their respective terms and
+conditions.  Each of Parent, the Issuer, and Merger Sub, as applicable, has
+fully paid any and all commitment fees and other fees required by the Debt
+Commitment Letter to which it is a party to be paid as of the date of this
+Agreement, and will pay (or cause to be paid) in full any and all other
+commitment fees and other fees required to be paid thereunder as and when they
+become payable in accordance with the terms thereof.
+ 
+(h)          Limited Guarantee.  Concurrently with the execution of this
+Agreement, Parent has delivered to the Company the Limited Guarantee.  As of the
+date of this Agreement, the Limited Guarantee is in full force and effect and is
+a valid and binding obligation of the Guarantor and enforceable against the
+Guarantor in accordance with its terms and no event has occurred which, with or
+without notice, lapse of time or both, would or would reasonably be expected to
+constitute a default on the part of the Guarantor under the Limited Guarantee.
+ 
+(i)       No Ownership of Company Common Stock. As of the date of this
+Agreement, none of Parent or Merger Sub or their respective Subsidiaries,
+Affiliates or associates beneficially owns any Class A Shares or Class B Shares
+or has any rights to acquire any shares of capital stock of the Company (except
+pursuant to this Agreement).
+ 
+39
+
+--------------------------------------------------------------------------------
+
+(j)          Disclosure. None of the Offer Documents will, at the time such
+document is filed with the SEC, at any time such document is amended or
+supplemented or at the time such document is first published, sent or given to
+the Company’s stockholders, contain any untrue statement of a material fact or
+omit to state any material fact required to be stated therein or necessary in
+order to make the statements therein, in light of the circumstances under which
+they were made, not misleading. None of the information with respect to Parent
+or Merger Sub supplied or to be supplied by or on behalf of Parent or Merger Sub
+or any of their Subsidiaries specifically for inclusion or incorporation by
+reference in the Schedule 14D-9 will, at the time such document is filed with
+the SEC, at any time such document is amended or supplemented or at the time
+such document is first published, sent or given to the Company’s stockholders,
+contain any untrue statement of a material fact or omit to state any material
+fact required to be stated therein or necessary in order to make the statements
+therein, in light of the circumstances under which they were made, not
+misleading. Notwithstanding the foregoing, none of Parent or Merger Sub makes
+any representation or warranty with respect to statements made or incorporated
+by reference therein based on information supplied in writing by or on behalf of
+the Company specifically for inclusion or incorporation by reference in the
+Offer Documents.
+ 
+(k)        No Other Representations and Warranties.  Except for the
+representations and warranties of Parent and Merger Sub contained in this
+Agreement and the Transaction Documents to which the Parent or Merger Sub is a
+party, neither Parent nor Merger Sub is making and has made, and no other Person
+is making or has made on behalf of Parent and Merger Sub, any express or implied
+representation or warranty in connection with this Agreement or the transactions
+contemplated hereby; and neither Parent nor Merger Sub nor any person on behalf
+of Parent and Merger Sub is making any express or implied representation or
+warranty with respect to Parent and Merger Sub or with respect to any other
+information made available to the Company in connection with the transactions
+contemplated by this Agreement.
+ 
+(l)          Access to Information; Disclaimer.  Parent and Merger Sub each
+acknowledges and agrees that it (i) has had an opportunity to discuss the
+business of the Company and its Subsidiaries and with the management of the
+Company, (ii) has had reasonable access to (A) the books and records of the
+Company and its Subsidiaries and (B) the documents made available by the Company
+for purposes of the transactions contemplated by this Agreement, (iii) has been
+afforded the opportunity to ask questions of and receive answers from officers
+of the Company and (iv) has conducted its own independent investigation of the
+Company and its Subsidiaries, their respective businesses and the transactions
+contemplated hereby, and has not relied on any representation, warranty or other
+statement by any Person on behalf of the Company or any of its Subsidiaries,
+other than the representations and warranties of the Company contained in
+Section 5.1 of this Agreement and the Transaction Documents to which the Company
+is a party, and that all other representations and warranties are specifically
+disclaimed. Without limiting the foregoing, except for the express
+representations and warranties contained in Section 5.1 of this Agreement and
+the Transaction Documents to which the Company is a party, each of Parent and
+Merger Sub further acknowledges and agrees that none of the Company or any of
+its Affiliates or any of their respective equityholders, directors, officers,
+employees, Affiliates, advisors, agents or other Representatives has made any
+representation or warranty concerning the Company or any of the transactions
+contemplated by this Agreement, including any estimates, projections, forecasts,
+business plans or other forward-looking information regarding the Company, its
+Subsidiaries or their respective businesses and operations.
+ 
+40
+
+--------------------------------------------------------------------------------
+
+ARTICLE VI
+ 
+COVENANTS
+ 
+6.1          Interim Operations.
+ 
+(a)        Conduct of Business of the Company. During the period beginning from
+and after the execution of this Agreement and ending on the earlier of the
+Effective Time and the termination of this Agreement in accordance with its
+terms (the “Pre-Closing Period”), except to the extent (1) consented to or
+approved by Parent in writing (such consent or approval not to be unreasonably
+withheld, conditioned or delayed), (2) required by applicable Law, (3) required
+by this Agreement or (4) otherwise disclosed in Section 6.1(a) of the Company
+Disclosure Letter, the Company shall use its reasonable best efforts to (i)
+conduct its business and the business of its Subsidiaries in the ordinary course
+of business, (ii) preserve intact its business organization, operations, assets,
+goodwill and relationships with material customers, carriers, suppliers,
+licensors, licensees, distributors, officers, employees and other third parties
+and (iii) operate its business and the business of its Subsidiaries in
+accordance with applicable Law.  Without limiting the generality of the
+foregoing, during the Pre-Closing Period, except (A) as required by applicable
+Law, (B) as Parent may consent to or approve in writing (such consent or
+approval not to be unreasonably withheld, conditioned or delayed in the cases of
+clauses (v), (vii)- (ix), (xi)-(xiii), (xv), (xvii)-(xx)), (C) as disclosed in
+the applicable subsection of Section 6.1(a) of the Company Disclosure Letter or
+(D) as required by this Agreement or any other Transaction Document, the Company
+shall not and will not permit any of its Subsidiaries to:
+ 
+(i)          amend its certificate of incorporation or bylaws (or comparable
+governing documents) (other than amendments to the governing documents of any
+wholly owned Subsidiary of the Company that would not reasonably be expected to
+prevent, materially delay or materially impair the Offer, the Merger or the
+consummation of the other transactions contemplated by this Agreement);
+ 
+(ii)       take actions to (A) adjust, split, combine, subdivide or reclassify
+any shares of capital stock, or (B) repurchase, redeem or otherwise acquire any
+shares of its capital stock or other equity interests or any securities
+convertible into or exchangeable or exercisable for any shares of its capital
+stock or other equity interests (other than (I) pursuant to the cashless
+exercise of Company Options or the forfeiture of, or withholding of Taxes with
+respect to, any Company Equity Awards, or otherwise pursuant to the Company
+Stock Plan or any outstanding Company Equity Awards in accordance with their
+terms as of the date of this Agreement and (II) in connection with the exchange
+of Series B Membership Interests for Class A Shares in accordance with the
+Company Certificate of Incorporation, the Operating Agreement and the Existing
+Exchange Agreement);
+ 
+(iii)      establish a record date for, declare, set aside or pay any dividend
+or distribution payable in cash, stock or property (or any combination thereof)
+in respect of any shares of its capital stock or other equity interests or make
+any other actual, constructive or deemed distribution in respect of the shares
+of capital stock or other equity or voting interest (except for any dividends or
+distributions paid by a direct or indirect wholly owned Subsidiary of the
+Company to another direct or indirect wholly owned Subsidiary of the Company or
+to the Company);
+ 
+(iv)        merge or consolidate with or into any other Person, or restructure,
+reorganize, recapitalize, consolidate or completely or partially liquidate
+(other than mergers among, or the restructuring, reorganization or liquidation
+of any wholly owned Subsidiaries of the Company that would not reasonably be
+expected to prevent, materially delay or materially impair the Offer, the Merger
+or the other transactions contemplated by this Agreement);
+ 
+41
+
+--------------------------------------------------------------------------------
+
+(v)        except as required by the existing terms of a Company Plan listed on
+Section 5.1(h)(i) of the Company Disclosure Letter, (A) increase the
+compensation or benefits payable to any current or former employee, director, or
+individual service provider of the Company or any of its Subsidiaries, other
+than increases in base salary or fees for employees or independent contractors
+with annual base salary or annual fees below $250,000 (after giving effect to
+such increases) in the ordinary course of business consistent with past practice
+that does not exceed 5% on an individual basis or $50,000 in the aggregate; (B)
+grant any new equity-based awards, or amend or modify the terms of any such
+outstanding awards under the Company Stock Plan, (C) grant any extraordinary
+bonus (including any change of control, transaction or other similar bonus) to
+any director or executive officer of the Company or its Subsidiaries, (D) enter
+into any new agreement providing for severance, other than as required under a
+Company Plan listed on Section 5.1(h)(i) of the Company Disclosure Letter, (E)
+make any change to any Company Plan that would materially increase the costs to
+the Company or any of its Subsidiaries in respect of such Company Plan, or
+establish, enter into, terminate or materially amend any Company Plan (or any
+plan, agreement or arrangement that would be a Company Plan if in existence on
+the date hereof, other than as permitted under subsections (A)-(D) hereof or
+routine changes to health and welfare plans in the ordinary course of business
+that do not result in any material increase in costs to the Company in the
+aggregate), or (F) accelerate the payment, funding or timing of any compensation
+due under any Company Plan or otherwise;
+ 
+(vi)       (A) incur any Indebtedness, except (x) in the ordinary course of
+business, borrowings under the Existing Credit Facility as in effect on the date
+of this Agreement, (y) Indebtedness solely between or among the Company and its
+wholly owned Subsidiaries and (z) letters of credit, bank guarantees, security
+or performance bonds or similar credit support instruments and overdraft
+facilities or cash management programs, in each case issued, made or entered
+into in the ordinary course of business which in the aggregate do not exceed
+$10,000,000, (B) assume, guarantee, endorse or otherwise become liable or
+responsible (whether directly, contingently or otherwise) for the obligations of
+any other Person, except with respect to obligations of the Company and its
+wholly owned Subsidiaries, (C) mortgage, pledge or place a Lien (other than
+Permitted Liens) upon any material properties or material assets (whether
+tangible or intangible) of the Company or any of its Subsidiaries (including
+capital stock of any of its Subsidiaries and Intellectual Property), or (D) make
+(i) voluntary prepayment or (ii) any amortization payment of the outstanding
+term loan under the Existing Credit Facility other than scheduled amortization
+payments not in excess of the amount and only at the time(s) required by the
+terms of the Existing Credit Facility (as in effect on the date of this
+Agreement);
+ 
+(vii)       make or commit to any capital expenditures other than in the
+ordinary course of business and which do not exceed $1,000,000, in the
+aggregate;
+ 
+42
+
+--------------------------------------------------------------------------------
+
+(viii)     other than in the ordinary course of business (and except for any
+such transactions solely by and among any wholly owned Subsidiaries of the
+Company) and for properties or assets with fair market value which do not exceed
+$2,000,000, individually and $5,000,000, in the aggregate, transfer, lease,
+license, sell, abandon, assign or otherwise dispose of any properties or assets
+(whether tangible or intangible) of the Company or any of its Subsidiaries
+(including capital stock of any of its Subsidiaries and Intellectual Property);
+ 
+(ix)        disclose any material confidential information (including source
+code) of the Company or any of its Subsidiaries to any Person, other than in the
+ordinary course of business consistent with past practice pursuant to a written
+confidentiality agreement;
+ 
+(x)         issue, deliver, sell, or grant, or commit to issue, sell or grant
+any Company Securities or shares of capital stock or other equity interests of
+any of the Company’s Subsidiaries, or any securities convertible into or
+exchangeable or exercisable for such shares or equity interests, or any options,
+warrants or other rights to acquire any such shares or equity interests, except
+(A) for any Class A Shares issued pursuant to Company Equity Awards outstanding
+on the date of this Agreement, in accordance with the terms of such awards and
+the Company Stock Plan as of the date of this Agreement or as required by the
+Exchange Agreement, (B) by wholly owned Subsidiaries to the Company or to any
+other wholly owned Subsidiary of the Company, Agreement and (C) in connection
+with the exchange of Series B Membership Interests for Class A Shares in
+accordance with the Company Certificate of Incorporation, the Operating
+Agreement and the Existing Exchange Agreement;
+ 
+(xi)       spend or commit to spend in excess of $2,500,000 individually or
+$5,000,000 in the aggregate to acquire or invest in any business (including any
+equity interests therein) or other assets or real property, whether by merger,
+consolidation, purchase of stock, property or assets or otherwise (other than
+(A) any transaction solely among the Company and/or any of its wholly owned
+Subsidiaries, and (B) for assets that are used in the ordinary course of
+business);
+ 
+(xii)       (A) make any material change with respect to the Company’s financial
+accounting policies or procedures or (B)  revalue in any material respect any of
+its properties or assets, including writing-off notes or accounts receivable,
+other than in the ordinary course of business, in each case, except as required
+by changes in GAAP (or any interpretation thereof) or by applicable Law;
+ 
+(xiii)      enter into any new line of business (other than any line of business
+that is reasonably ancillary to and a reasonably foreseeable extension of any
+line of business conducted by the Company as of the date of this Agreement);
+ 
+(xiv)     make any loans, advances or capital contributions to, or investments
+in, any Person (other than loans, advances or capital contributions to the
+Company or any direct or indirect wholly owned Subsidiary of the Company or loan
+or advances to service providers of the Company or any of its Subsidiaries in
+the ordinary course of business);
+ 
+43
+
+--------------------------------------------------------------------------------
+
+(xv)       (A) amend, waive or modify in any material respect or terminate
+(excluding terminations upon expiration of the term thereof in accordance with
+the terms thereof) any Material Contract (including the Existing Credit
+Facility) or (B) enter into any Contract that would have been a Material
+Contract had it been entered into prior to the date of this Agreement unless it
+is on terms substantially consistent with, or on terms more favorable to the
+Company or its Subsidiaries than, either a Contract it is replacing or a form of
+such Material Contract made available to Parent prior to the date hereof;
+provided that the foregoing shall not prohibit or restrict the ability of the
+Company or its wholly owned Subsidiaries to take any action described in this
+Section 6.1(a)(xv) with respect to Contracts solely between or among the Company
+and/or one or more of its wholly owned Subsidiaries;
+ 
+(xvi)    settle, compromise or propose to settle or compromise any Proceedings
+involving or against the Company or any of its Subsidiaries, other than
+settlements or compromises (A) involving a monetary payment not in excess of
+$1,000,000 individually or $3,000,000 in the aggregate or any de minimis
+injunctive or equitable relief or restrictions on the business activities of the
+Company and its Subsidiaries and (B) for amounts not in excess of the Company’s
+available insurance coverage as of the date hereof and, in each case, not with a
+Governmental Entity;
+ 
+(xvii)     (A) enter into, negotiate, modify or extend any CBA or (B) recognize
+or certify any labor union, labor organization, or group of employees as the
+bargaining representative for any employees of the Company or its Subsidiaries;
+ 
+(xviii)     implement or announce any employee layoffs, plant closings,
+reductions in force, furloughs, temporary layoffs, salary or wage reductions,
+work schedule changes or other such actions that implicate the WARN Act;
+ 
+(xix)       hire, engage, furlough, temporarily layoff or terminate (without
+cause)  any officer or senior manager;
+ 
+(xx)     waive or release any noncompetition, nonsolicitation, nondisclosure,
+noninterference, nondisparagement, or other restrictive covenant obligation of
+any person (other than a service provider of the Company or a Subsidiary), or
+enter into any such obligation binding on the Company or its Subsidiaries;
+ 
+(xxi)      make, revoke or change any material Tax election, settle or
+compromise any liability or assessment with respect to any material Taxes,
+surrender any claim for a refund of material Taxes, adopt or change (or make a
+request to any Governmental Entity to change) any material method of accounting
+for Tax purposes, amend any material Tax Return, enter into any closing
+agreement with respect to any material Taxes or file any material Tax Return in
+a manner inconsistent with past practice; or
+ 
+(xxii)      agree or commit to do any of the foregoing.
+ 
+44
+
+--------------------------------------------------------------------------------
+
+(b)         Conduct of Business of Parent and Merger Sub. During the Pre-Closing
+Period, Parent and Merger Sub shall not, without the prior written consent of
+the Company, take (or permit any Subsidiary of Parent to take) any action that
+is intended, or would reasonably be expected, individually or in the aggregate,
+to result in any conditions to the Merger not being satisfied prior to the
+Outside Date, provided that, notwithstanding anything herein to the contrary,
+Section 1.1, Section 6.15 and Section 6.5 shall be Parent and Merger Sub’s sole
+and exclusive obligations with respect to the subject matter hereof.
+ 
+6.2         Acquisition Proposals.
+ 
+(a)          No Solicitation or Negotiation.
+ 
+(i)         Except as permitted by this Section 6.2, the Company shall not, and
+shall cause its and its Subsidiaries’ directors, officers and employees not to,
+and shall use its reasonable best efforts to cause its and any of its
+Subsidiaries’ investment bankers, attorneys, accountants and other advisors or
+representatives (collectively, “Representatives”) not to, directly or
+indirectly:
+ 
+(A)         solicit, initiate, knowingly encourage or knowingly facilitate
+(including by way of providing information), or take any action designed to lead
+to, any inquiries, indication of interest or the making of any proposal or offer
+that constitutes, or would reasonably be expected to lead to, an Acquisition
+Proposal;
+ 
+(B)          continue, knowingly encourage, knowing facilitate, or otherwise
+participate in any discussions or negotiations with any Person regarding any
+Acquisition Proposal; or
+ 
+(C)       knowingly provide any information or data concerning the Company or
+any of its Subsidiaries to any Person in connection with any Acquisition
+Proposal.
+ 
+(ii)      The Company shall, and the Company shall cause its Subsidiaries and
+shall instruct its and their Representatives to, (x) immediately cease and cause
+to be terminated any discussions and negotiations with any Person conducted
+heretofore with respect to any Acquisition Proposal, or proposal, offer, inquiry
+or indication of interest that would reasonably be expected to lead to an
+Acquisition Proposal, (y) immediately terminate all physical and electronic data
+room access previously granted to any such Person or its representatives and
+request the prompt return or destruction of any confidential information
+provided to any such Person or its Representatives, and (z) not waive any
+standstill, confidentiality, or similar provision to which the Company or any of
+its Subsidiary is a party; provided that nothing in this Agreement shall
+restrict the Company from permitting a Person to request the waiver of a
+“standstill” or similar obligation solely to make an unsolicited and nonpublic
+Acquisition Proposal in compliance with this Section 6.2 or from granting such a
+waiver, in each case, to the extent that (A) such waiver is required for such
+Person to make an unsolicited and nonpublic Acquisition Proposal to the Company
+in compliance with this Section 6.2 and (B) the Company’s board of directors has
+determined in good faith after consultation with its outside legal counsel that
+such waiver is necessary to comply with the directors’ fiduciary duties under
+applicable Law. Any failure to comply with the Company’s instructions required
+under this Section 6.2(a)(ii) by any of the Company’s or its Subsidiary’s
+Representatives shall be deemed to be a breach of this Agreement by the Company.
+ 
+45
+
+--------------------------------------------------------------------------------
+
+(b)        Discussions.  Notwithstanding anything to the contrary in Section
+6.2(a) or elsewhere in this Agreement, prior to the Offer Acceptance Time and
+after giving written notice to Parent, the Company may (and may permit its
+Representatives to), if the Company receives an unsolicited written Acquisition
+Proposal after the date of this Agreement that is not preceded by a breach of
+Section 6.2(a) or Section 6.2(e) and that the Company’s board of directors
+reasonably believes is bona fide and determines in good faith, based on the
+information then available and after consultation with outside legal counsel and
+an independent financial advisor of nationally recognized reputation (a
+“Financial Advisor”), that such Acquisition Proposal either constitutes a
+Superior Proposal or would reasonably be expected to lead to a Superior
+Proposal, (i) provide or give access to non-public information regarding the
+Company or any of its Subsidiaries to the Person who made such Acquisition
+Proposal, its potential sources of financing and their respective
+Representatives pursuant to an Acceptable Confidentiality Agreement (provided
+that any non-public information not previously provided to Parent is made
+available to Parent promptly (and in any event within twenty-four (24) hours)
+following the time such non-public information is made available to such Person)
+and (ii) engage or participate in any discussions or negotiations with such
+Person and its Representatives regarding such Acquisition Proposal.
+ 
+(c)         Notice of Acquisition Proposals.  The Company shall promptly (and,
+in any event, within twenty-four (24) hours) notify Parent in writing if any
+inquiry, proposal, offer or indication of interest with respect to, or that
+would reasonably be expected to lead to, an Acquisition Proposal is received by
+the Company, any of its Subsidiaries or any of their respective Representatives,
+indicating, in such notice, the identity of such Person and the material terms
+and conditions thereof and provide Parent with a copy of any such inquiry,
+proposal or offer or indication of interest and any draft agreement, term sheet,
+financing commitment and other documents provided in connection therewith.  The
+Company shall keep Parent reasonably informed, on a prompt basis, of any
+material developments with respect to any such inquiry, request for information,
+proposal, offer or indication of interest (including promptly notifying Parent
+in writing of any material changes to the terms of any such proposals or offers
+(and, in any event, within twenty-four (24) hours).
+ 
+(d)          Definitions.  For purposes of this Agreement:
+ 
+“Acquisition Proposal” means any proposal, offer, inquiry or indication of
+interest from any Person or group (as defined in or under Section 13 of the
+Exchange Act), other than Parent or its Subsidiaries, relating to (i) any
+merger, consolidation, tender offer, recapitalization, reorganization, share
+exchange, business combination, joint venture, partnership, sale, license or
+other similar transaction involving the Company or any of its Subsidiaries
+pursuant to which such Person or group would, directly or indirectly, acquire
+beneficial ownership of twenty percent (20%) or more of the outstanding Shares
+or outstanding membership interests of Holdings (or twenty percent (20%) or more
+of the issued and outstanding securities of the surviving or resulting company
+in a merger, consolidation, business combination or similar transaction),
+securities representing twenty percent (20%) or more of the total voting power
+of the Company or Holdings, or twenty percent (20%) or more of the consolidated
+revenues, consolidated net income or consolidated assets of the Company and its
+Subsidiaries, (ii) any acquisition by such Person or group (as defined in or
+under Section 13 of the Exchange Act), which if consummated would result in such
+Person or group becoming the beneficial owner, directly or indirectly, of twenty
+percent (20%) or more of the outstanding Shares or outstanding membership
+interests of Holdings, securities representing twenty percent (20%) or more of
+the total voting power of the Company or Holdings, or twenty percent (20%) or
+more of the consolidated revenues, consolidated net income or consolidated
+assets of the Company and its Subsidiaries or (iii) any combination of the
+foregoing, in each case, other than the transactions contemplated by this
+Agreement and whether in one or a series of related transactions.
+ 
+46
+
+--------------------------------------------------------------------------------
+
+“Intervening Event” means any material change, event, development or occurrence
+with respect to the Company that (i) was not known to, or reasonably foreseeable
+by, the board of directors of the Company prior to the execution of this
+Agreement (or if known or reasonably foreseeable, the material consequences of
+which were not known or reasonably foreseeable), which change, event,
+development or occurrence, or any material consequence thereof, becomes known
+to, or reasonably foreseeable by, the board of directors of the Company prior to
+the Offer Acceptance Time and (ii) does not relate to (A) any Acquisition
+Proposal or (B) any (x) changes in the market price or trading volume of the
+Company or (y) the Company meeting, failing to meet or exceeding published or
+unpublished revenue or earnings projections, in each case in and of itself (it
+being understood that the facts or occurrences giving rise or contributing to
+such change or event may be taken into account when determining whether an
+Intervening Event has occurred).
+ 
+“Superior Proposal” means any bona fide written offer from any Person or “group”
+made after the date of this Agreement that is not preceded by a breach of
+Section 6.2(a) or Section 6.2(e) and that, if consummated, would result in such
+Person or group (or their stockholders) owning, directly or indirectly, a
+majority of the outstanding Shares (or of the stock of the surviving entity in a
+merger or the direct or indirect parent of the surviving entity in a merger),
+securities representing a majority of the total voting power of the Company or
+Holdings, or a majority of the assets of the Company and its Subsidiaries, taken
+as a whole, and which the Company’s board of directors determines in good faith
+(after consultation with its outside legal counsel and Financial Advisor) to be
+(i) more favorable to the holders of Shares, from a financial point of view,
+than the Transactions and (ii) reasonably likely to be completed, in each case
+of clauses (i) and (ii), taking into account the financial terms of such
+proposal (including, if applicable at the time of such determination, any
+changes to the financial terms of this Agreement or the transactions
+contemplated hereby then proposed by Parent in response to such offer or
+otherwise), and such legal, regulatory, financing and other aspects of such
+proposal that the Company’s board of directors considers appropriate.
+ 
+(e)        No Change in Recommendation or Alternative Acquisition Agreement. 
+Except as provided in Section 6.2(f) and Section 6.2(g), the Company’s board of
+directors (and each of its committees) shall not (i) withhold, withdraw, qualify
+or modify (or publicly propose to withhold, withdraw, qualify or modify), in a
+manner adverse to Parent, the Company Recommendation or approve, recommend or
+otherwise declare advisable any Acquisition Proposal (each, a “Change in
+Recommendation”), (ii) cause or permit the Company or any of its Subsidiaries to
+enter into any letter of intent, memorandum of understanding, agreement in
+principle, acquisition agreement, merger agreement, option agreement, joint
+venture agreement partnership agreement or other agreement (other than an
+Acceptable Confidentiality Agreement) relating to, or that would reasonably be
+expected to lead to, any Acquisition Proposal (each, an “Alternative Acquisition
+Agreement”), (iii) adopt, approve or recommend, or publicly propose to adopt,
+approve or recommend any Acquisition Proposal or to enter into an Alternative
+Acquisition Agreement, (iv) fail to include the Company Recommendation in
+Schedule 14D-9, or (v)  fail to expressly reaffirm publicly the Company
+Recommendation within ten (10) Business Days following Parent’s written request
+to do so if an Acquisition Proposal is publicly announced or disclosed. For the
+avoidance of doubt, a factually accurate public statement that solely describes
+the Company’s receipt of an Acquisition Proposal and the operation of this
+Agreement with respect thereto (that includes a reaffirmation of the Company
+Recommendation) shall not be deemed a Change in Recommendation.
+ 
+47
+
+--------------------------------------------------------------------------------
+
+(f)         Change in Recommendation for Superior Proposal.  Notwithstanding
+anything to the contrary set forth in this Agreement, including in Section
+6.2(e), following receipt of a written Acquisition Proposal by the Company after
+the date of this Agreement that is not preceded by a breach of Section 6.2(a) or
+Section 6.2(e) and that the Company’s board of directors determines in good
+faith, after consultation with its outside legal counsel and Financial Advisors,
+constitutes a Superior Proposal and the failure to make a Change in
+Recommendation or terminate this Agreement in response to such Acquisition
+Proposal would be inconsistent with the directors’ fiduciary duties under
+applicable Law, the Company’s board of directors may, at any time prior to the
+Offer Acceptance Time, make a Change in Recommendation or terminate this
+Agreement in accordance with Section 8.3(b) in order to enter into a definitive
+Alternative Acquisition Agreement (or cause or permit the Company or any of its
+Subsidiaries to enter into a definitive Alternative Acquisition Agreement) with
+respect to such Superior Proposal if, in either case, prior thereto all of the
+following conditions are met:
+ 
+(i)          the Company shall have provided to Parent four (4) Business Days’
+prior written notice of its intention to take such action, which notice shall
+(A) state that it has received a written Acquisition Proposal that constitutes a
+Superior Proposal, (B) specify the material terms and conditions of the Superior
+Proposal (including the consideration offered therein and the identity of the
+Person or group making the Acquisition Proposal) and (C) include a copy of the
+proposed Alternative Acquisition Agreement, proposed financing commitment (if
+any) and any other ancillary agreements and other documents relating to such
+Acquisition Proposal;
+ 
+(ii)         after providing such notice and prior to making a Change in
+Recommendation or terminating this Agreement in accordance with Section 8.3(b),
+as applicable, the Company shall have engaged and negotiated in good faith with
+Parent (to the extent Parent wishes to negotiate) during such four (4) Business
+Day period, which may be on a non-exclusive basis, with respect to any
+adjustments proposed by Parent during such period to the terms and conditions of
+this Agreement or the transactions contemplated hereby such that the Acquisition
+Proposal would cease to constitute a Superior Proposal or the Company’s board of
+directors would no longer determine that the failure to make such Change in
+Recommendation or to terminate this Agreement in accordance with Section 8.3(b),
+as applicable, would be inconsistent with the directors’ fiduciary duties under
+applicable Law; and
+ 
+48
+
+--------------------------------------------------------------------------------
+
+(iii)        following the end of such four (4) Business Day period, the
+Company’s board of directors shall have determined, in good faith, after
+consultation with its Financial Advisor and outside legal counsel, that, in
+light of such Superior Proposal and taking into account any revised terms
+proposed by Parent, such Acquisition Proposal continues to constitute a Superior
+Proposal and that the failure to make such Change in Recommendation or to
+terminate this Agreement in accordance with Section 8.3(b), as applicable, would
+continue to be inconsistent with the directors’ fiduciary duties under
+applicable Law (it being understood and agreed that any amendment to any
+material term or condition of such Superior Proposal shall require a new notice
+under Section 6.2(f)(i)) and compliance with the Company’s obligations under
+Sections 6.2(f)(i)—(iii), except that each reference to a four (4) Business Day
+period shall be to a two (2) Business Day period.
+ 
+(g)        Change in Recommendation for Intervening Event.  Notwithstanding
+anything to the contrary set forth in this Agreement, including in Section
+6.2(e), upon the occurrence of any Intervening Event, the Company’s board of
+directors may, at any time prior to the Offer Acceptance Time, make a Change in
+Recommendation if prior thereto all of the following conditions are met:
+ 
+(i)         the Company’s board of directors shall have determined in good
+faith, after consultation with its outside legal counsel, that an Intervening
+Event has occurred and the failure to make a Change in Recommendation in
+response to such Intervening Event would be inconsistent with the directors’
+fiduciary duties under applicable Law;
+ 
+(ii)         the Company shall have provided to Parent four (4) Business Days’
+prior written notice, which notice shall (A) set forth in reasonable detail
+information describing the material circumstances giving rise to such
+Intervening Event and the rationale for the proposed Change in Recommendation
+and (B) state expressly that, subject to clauses (iii) and (iv) below, the
+Company’s board of directors has determined to make a Change in Recommendation;
+ 
+(iii)        after providing such notice and prior to making such a Change in
+Recommendation, the Company shall have engaged and negotiated in good faith with
+Parent (to the extent Parent wishes to negotiate) during such four (4) Business
+Day period with respect to any adjustments to the terms and conditions of this
+Agreement or the transactions contemplated hereby such that the failure of the
+Company’s board of directors to make a Change in Recommendation in response to
+the Intervening Event in accordance with clause (iv) below would no longer be
+inconsistent with the directors’ fiduciary duties under applicable Law; and
+ 
+(iv)        following the end of such four (4) Business Day period, the
+Company’s board of directors shall have determined in good faith, after
+consultation with its outside legal counsel, that in light of such Intervening
+Event and taking into account any revised terms proposed by Parent, the failure
+to make a Change in Recommendation would continue to be inconsistent with the
+directors’ fiduciary duties under applicable Law.
+ 
+49
+
+--------------------------------------------------------------------------------
+
+(h)         Certain Permitted Disclosure.  Nothing contained in this Section 6.2
+shall or shall be deemed to prohibit the Company from complying with its
+disclosure obligations under applicable U.S. federal or state Law with regard to
+an Acquisition Proposal, including from issuing a customary “stop, look and
+listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or
+complying with Rule 14d-9, Rule 14e-2 or Item 1012(a) of Regulation M-A
+promulgated under the Exchange Act, or from making any disclosure to the
+Company’s stockholders if the Company’s board of directors concludes, after
+consultation with outside legal counsel, that such disclosure is required under
+applicable Law; provided that this Section 6.2(h) shall not be deemed to permit
+the Company or the Company’s board of directors to make a Change in
+Recommendation except in accordance with Section 6.2(f) or Section 6.2(g).
+ 
+6.3         [Reserved.]
+ 
+6.4         [Reserved.]
+ 
+6.5         Reasonable Best Efforts.
+ 
+(a)       Subject to the terms and conditions of this Agreement, including
+Section 6.2, the Company and Parent shall (and shall cause their respective
+Subsidiaries to) cooperate with each other and use their respective reasonable
+best efforts to promptly take (or cause to be taken) all actions, and do (or
+cause to be done) all things necessary, proper or advisable to satisfy the other
+party’s conditions to, and to consummate and make effective the Offer, the
+Merger and the other transactions contemplated by this Agreement no later than
+the Termination Date, including (i) preparing and filing as promptly as
+reasonably practicable the Required Regulatory Law Filings that must be filed
+prior to Closing (which in any event shall occur within ten (10) Business Days
+after the date of this Agreement) and all other documentation to effect all
+necessary notices, petitions, statements, registrations, reports and other
+filings necessary or advisable to be filed with or made to any Governmental
+Entity in order to consummate the Offer, the Merger or any of the other
+transactions contemplated by this Agreement, (ii) obtaining (and taking all
+steps necessary to obtain) all consents, registrations, approvals, permits,
+waivers, Licenses, permits, Orders, expirations of waiting periods and
+authorizations necessary or advisable to be obtained from any Governmental
+Entity in order to consummate the Offer, the Merger or any of the other
+transactions contemplated by this Agreement, (iii) obtaining (and cooperating
+with each other in obtaining) any consent, approval of, waiver or any exemption
+by and delivering notification to, any non-governmental third party, in each
+case, to the extent necessary, proper or advisable in connection with the Offer,
+the Merger or the transactions contemplated hereby or to maintain and preserve
+the benefits to the Surviving Corporation under the Material Contracts as of and
+following the consummation of the Merger, and (iv) executing and delivering any
+additional instruments reasonably necessary to consummate the transactions
+contemplated hereby and to fully carry out the purposes of this Agreement,
+provided, however, that such efforts shall not include any requirement to expend
+money (other than filing, application, legal, or consulting fees), commence,
+defend or participate in any litigation or offer or grant any accommodation
+(financial or otherwise) to any third party. The Company and Parent shall (and
+shall cause their respective Subsidiaries to), as applicable, reasonably
+promptly advise the other party upon providing such notices or receiving any
+such consents or waivers and, to the extent practicable, permit the other party
+to review in advance and consult with respect to the content and substance of
+such consents or waivers.
+ 
+50
+
+--------------------------------------------------------------------------------
+
+(b)         In furtherance and not in limitation of Section 6.5(a), each of the
+parties hereto agrees to (i) make, within ten (10) Business Days after the date
+of this Agreement, the notifications and filings required to be made under the
+HSR Act and requesting early termination of the waiting period thereunder, (ii)
+supply as promptly as practicable and advisable any additional information and
+documentary material that may be requested pursuant to the HSR Act and (iii) use
+reasonable best efforts to take or cause to be taken all other actions necessary
+to cause the expiration or termination of the applicable waiting periods under
+the HSR Act and to obtain any and all consents, authorizations, waivers and
+approvals under the HSR Act or any other Antitrust Laws that may be required by
+any Governmental Entity with competent jurisdiction, so as to enable the parties
+hereto to consummate the Offer, the Merger and the other transactions
+contemplated hereby.
+ 
+(c)         Subject to Section 6.5(d), in the event that the parties receive a
+request for information or documentary material pursuant to the HSR Act or any
+other Antitrust Laws, including a request for additional information (a “Second
+Request”), unless otherwise agreed to by Parent and the Company, the parties
+will use their reasonable best efforts to submit an appropriate response to, and
+to certify compliance with, such Second Request as promptly as practicable and
+advisable, and counsel for both parties will closely cooperate during the
+entirety of any such Second Request review process.  None of the parties,
+without the other party’s prior written consent, shall (i) enter into any
+timing, settlement or similar agreement, or otherwise agree or commit to any
+arrangement, that would have the effect of extending, suspending, lengthening or
+otherwise tolling the expiration or termination of the waiting period applicable
+to the contemplated transactions under the HSR Act or any Antitrust Laws, or
+(ii) enter into any timing or similar agreement, or otherwise agree or commit to
+any arrangement, that would bind or commit the parties not to consummate the
+contemplated transactions (or that would otherwise prevent or prohibit the
+parties from consummating the contemplated transactions).
+ 
+(d)        Parent and the Company shall cooperate with respect to the Antitrust
+Laws and Health Regulatory Laws and discuss in good faith the appropriate course
+of action with respect to obtaining the consents, approvals, permits, waiting
+period expirations or authorizations of any Governmental Entity required to
+consummate the Offer prior to the Termination Date.  No party hereto or its
+counsel shall independently participate in any substantive call or meeting
+relating to the Antitrust Laws or Health Regulatory Laws with any Governmental
+Entity in respect of such filings, investigation, or other inquiry without, to
+the extent practicable and permitted by applicable Law, first giving the other
+party or its counsel prior notice of such call or meeting and, to the extent
+permitted by such Governmental Entity, the opportunity to attend and
+participate. In furtherance of the foregoing and to the extent practicable and
+permitted by applicable Law, (i) each party shall notify the other, as far in
+advance as practicable, of any filing or substantive communication or inquiry it
+or any of its Affiliates intends to make with any Governmental Entity relating
+to the matters that are the subject of this Section 6.5, (ii) prior to
+submitting any such filing or making any such communication or inquiry, such
+party shall provide the other party and its counsel a reasonable opportunity to
+review, and shall consider in good faith the comments of the other party in
+connection with, any such filing, communication or inquiry, (iii) promptly
+following the submission of such filing or making such communication or inquiry,
+provide the other party with a copy of any such filing or, if in written form,
+communication or inquiry and (iv) consult with the other party in connection
+with any inquiry, hearing, investigation or litigation by, or negotiations with,
+any Governmental Entity relating to the Offer or the Merger, including the
+scheduling of, and strategic planning for, any substantive meetings with any
+Governmental Entity relating thereto.  In exercising the foregoing cooperation
+rights, the Company and Parent each shall act reasonably and as promptly as
+reasonably practicable.  Notwithstanding the foregoing, materials provided
+pursuant to this Section 6.5 may be reasonably redacted as necessary to address
+reasonable privilege concerns.
+ 
+51
+
+--------------------------------------------------------------------------------
+
+(e)          In furtherance and not in limitation of the covenants of the
+parties contained in this Section 6.5, each of the parties hereto, including
+their respective Subsidiaries, shall use its reasonable best efforts to resolve
+such objections, if any, as may be asserted by any Governmental Entity in
+connection with the HSR Act or any applicable Antitrust Laws, with respect to
+the transactions contemplated hereby and to avoid the entry of, or effect the
+dissolution of, any decree, order, judgment, injunction, temporary restraining
+order or other order in any suit or proceeding, that would otherwise have the
+effect of preventing the consummation of the transactions contemplated hereby. 
+For the purposes of this Section 6.5, “reasonable best efforts” shall include
+taking any and all actions (such actions, the “Regulatory Actions”) necessary to
+obtain the consents, approvals, permits, waiting period expirations or
+authorizations of any Governmental Entity required to consummate the Offer, the
+Merger and the other transactions contemplated hereby no later than the
+Termination Date, including (i) proposing, negotiating, committing to, effecting
+and agreeing to, by consent decree, hold separate order, or otherwise, the sale,
+divestiture, license, hold separate, and other disposition of the businesses,
+assets, products or equity interests of the Company or any of Parent’s other
+businesses, assets, products or equity interests now owned or hereafter acquired
+by Parent, (ii) creating, terminating, or amending any existing relationships,
+ventures, contractual rights or obligations of Parent, the Company or their
+respective Subsidiaries and (iii) otherwise taking or committing to any action
+that would limit Parent’s freedom of action with respect to the operation of, or
+its ability to retain or hold, directly or indirectly, any businesses, assets,
+products or equity interests of Parent or the Company (including any of their
+respective Subsidiaries); provided that such Regulatory Actions shall be
+conditioned upon and become effective only from and after the Effective Time.
+ 
+(f)         In furtherance and not in limitation of the covenants of the parties
+contained in this Section 6.5, if any administrative or judicial Proceeding by a
+Government Entity is instituted challenging the Offer, the Merger or any other
+transaction contemplated by this Agreement as violative of any Antitrust Law,
+each of the Company and Parent shall use reasonable best efforts to contest and
+resist any such action or proceeding and to have vacated, lifted, reversed or
+overturned any decree, judgment, injunction or other order, whether temporary,
+preliminary or permanent, that is in effect and that prohibits, prevents or
+restricts the consummation of the Offer or the Merger.
+ 
+(g)        The Company and Parent shall each, upon request, promptly furnish the
+other with any information concerning itself, its Subsidiaries, Affiliates,
+directors or officers and such other matters as may be reasonably requested by
+the other party that is necessary or advisable in connection with any statement,
+filing, notice or application made by or on behalf of Parent, the Company or any
+of their respective Subsidiaries to any third party or any Governmental Entity
+in connection with the Offer, the Merger and the other transactions contemplated
+by this Agreement.
+ 
+52
+
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+
+(h)        The Company and Parent shall keep each other reasonably apprised of
+the status of matters relating to completion of the transactions contemplated
+hereby, including promptly furnishing the other with copies of any notice or
+other substantive written communications received by the Company or Parent, as
+the case may be, or any of their respective Subsidiaries from any Governmental
+Entity with respect to the Offer, the Merger and the other transactions
+contemplated by this Agreement, other than immaterial communications.
+ 
+6.6          Access; Consultation.
+ 
+(a)         Upon reasonable advance notice, and except as may otherwise be
+required by applicable Law, (i) the Company shall, and shall cause its
+Subsidiaries to, afford Parent, the Debt Commitment Parties and their respective
+Representatives reasonable access, during normal business hours during the
+Pre-Closing Period, to the Company’s and its Subsidiaries’ employees,
+properties, assets, books, records and contracts and (ii) during such
+Pre-Closing Period, the Company shall, and shall cause its Subsidiaries to,
+furnish promptly to Parent, the Debt Commitment Parties and their respective
+Representatives all information concerning its or any of its Subsidiaries’
+capital stock, business and personnel as may reasonably be requested by Parent,
+the Debt Commitment Parties or their respective Representatives in connection
+with the Offer or the Merger; provided that no investigation pursuant to this
+Section 6.6 shall affect or be deemed to modify any representation or warranty
+made by the Company; and provided, further that the foregoing shall not require
+the Company to permit any inspection or to disclose any information pursuant to
+this Section 6.6, to the extent that (A) in the reasonable good faith judgment
+of the Company, any applicable Law or Order requires the Company or its
+Subsidiaries to restrict or prohibit access to any such properties or
+information or disclosure thereof would expose the Company to an unreasonable
+risk of liability for disclosure of sensitive or personal information, (B) in
+the reasonable good faith judgment of the Company, the information is subject to
+confidentiality obligations to a third party or its disclosure would violate the
+terms of any confidentiality agreement or other Contract that is binding on the
+Company or any of its Subsidiaries or (C) disclosure of any such information or
+document would result in the waiver or loss of attorney-client privilege, work
+product doctrine or any other legal privilege; provided, further that with
+respect to the foregoing clauses (A) through (C) of this Section 6.6(a), the
+Company shall use its reasonable best efforts to (I) obtain the required consent
+of any such third party to provide such inspection or disclosure, (II) develop
+an alternative to providing such information so as to address such matters that
+is reasonably acceptable to Parent and (III) in the case of clauses (A), (B) and
+(C), implement appropriate and mutually agreeable measures to permit the
+disclosure of such information in a manner to remove the basis for the
+objection, including by arrangement of appropriate clean room procedures,
+redaction or entry into a customary joint defense agreement with respect to any
+information to be so provided, if the parties determine that doing so would
+reasonably permit the disclosure of such information without violating
+applicable Law or Order or jeopardizing such privilege.  Any investigation
+pursuant to this Section 6.6 shall be conducted in such a manner intended not to
+interfere unreasonably with the conduct of the business of the Company.  All
+requests for information made pursuant to this Section 6.6 shall be directed to
+an executive officer of the Company, or such Person as may be designated by any
+such executive officer.
+ 
+53
+
+--------------------------------------------------------------------------------
+
+(b)         The Company may, as it deems advisable and necessary, designate
+competitively sensitive material as “Outside Counsel Only Material” or with
+similar restrictions.  Such material and the information contained therein shall
+be given only to the outside counsel of the recipient pursuant to the terms of
+an agreement with respect thereto on terms that are reasonably acceptable to the
+Company and Parent and pursuant to which such information shall not be disclosed
+by such outside counsel to any directors, officers or employees of the recipient
+without the express prior permission of the Company or its legal counsel, and
+shall be subject to any additional confidentiality or joint defense agreement
+between the parties.  All information exchanged pursuant to this Section 6.6,
+including all information and/or discussions resulting from any access provided
+pursuant to this Section 6.6, shall be subject to the Confidentiality Agreement,
+which shall survive any termination of this Agreement and continue in full force
+and effect in accordance with its terms.
+ 
+(c)         To the extent that any of the information or material furnished
+pursuant to this Section 6.6 or otherwise in accordance with the terms of this
+Agreement may include material subject to the attorney-client privilege, work
+product doctrine or any other applicable privilege concerning pending or
+threatened legal proceedings (other than legal proceedings between Parent and
+any of its Affiliates, on the one hand, and the Company and any of its
+Affiliates, on the other hand) or governmental investigations, the parties
+understand and agree that they have a commonality of interest with respect to
+such matters and it is their desire, intention and mutual understanding that the
+sharing of such material is not intended to, and shall not, waive or diminish in
+any way the confidentiality of such material or its continued protection under
+the attorney-client privilege, work product doctrine or other applicable
+privilege.  All such information that is entitled to protection under the
+attorney-client privilege, work product doctrine or other applicable privilege
+shall remain entitled to such protection under these privileges, this Agreement,
+and under the joint defense doctrine.
+ 
+(d)        Each of the Company and Parent shall give prompt notice to one
+another if they become aware of any change, effect, circumstance or development
+that would reasonably be expected to result in a Company Material Adverse Effect
+or Parent Material Adverse Effect (as applicable), or of any reasonably likely
+failure of any condition to Parent’s or the Company’s obligations to effect the
+Merger (as applicable).
+ 
+(e)        Unless such action would violate applicable Law, the Company shall
+(i) notify Parent, as far in advance as practicable, of any material development
+or substantive communication or inquiry it or any of its Affiliates receives
+from or intends to make with any (x) Governmental Entity relating to any current
+or prospective Proceeding or otherwise related to compliance with Laws or (y)
+any party to any material current or prospective civil Proceeding, (ii) prior to
+making any such communication or inquiry, provide Parent and its counsel a
+reasonable opportunity to review, and shall consider in good faith the comments
+of the other party in connection with, any such communication or inquiry, (iii)
+promptly following the making such communication or inquiry, provide Parent with
+a copy of any such communication or inquiry (if in written form) and (iv)
+consult with Parent in connection with any inquiry, hearing, investigation or
+litigation by, or negotiations with, any Governmental Entity or party to any
+material civil Proceeding.  In exercising the foregoing cooperation rights, the
+Parent and the Company each shall act reasonably and as promptly as reasonably
+practicable and the Company shall implement appropriate and mutually agreeable
+measures to permit the disclosure of such information in a manner to address
+reasonable privilege concerns, including by arrangement of appropriate clean
+room procedures, redaction or entry into a customary joint defense agreement
+with respect to any information to be so provided.
+ 
+54
+
+--------------------------------------------------------------------------------
+
+6.7        Stock Exchange De-listing and De-registration.  The Company shall
+take all commercially reasonable actions necessary to permit the Class A Shares
+to be de-listed from the Nasdaq and de-registered under the Exchange Act as soon
+as possible following the Effective Time.
+ 
+6.8        Publicity.  The Company and Parent shall consult with each other on,
+and provide each other the opportunity to review and comment on, any press
+releases or other public announcements with respect to the Merger and the other
+transactions contemplated by this Agreement prior to issuing or making any such
+press release or public announcement, except (a) as may be required by or
+impracticable as a result of any applicable Law or Order or by obligations
+pursuant to any listing agreement with or the rules and regulations of any
+national securities exchange or the Nasdaq to which such party is subject or
+submits if the disclosing party has consulted with the other party prior thereto
+regarding the timing, scope and content of any such press release or public
+statement, (b) any press release or public statement that in the good faith
+judgment of the applicable party is consistent with prior press releases issued
+or public statements made in compliance with this Section 6.8 or (c) to the
+extent related to any Change in Recommendation or Acquisition Proposal.
+ 
+6.9         Employee Benefits.
+ 
+(a)         Parent agrees that each employee of the Company or its Subsidiaries
+immediately prior to the Effective Time who continues to remain employed with
+the Company or its Subsidiaries immediately after the Effective Time (a
+“Continuing Employee”) shall, during the period commencing at the Effective Time
+and ending twelve (12) months thereafter, or, if earlier, the date such
+Continuing Employee’s employment terminates (the “Continuation Period”), be
+provided with (i) a base salary or base wage that is no less favorable than the
+base salary or base wage provided to such Continuing Employee by the Company and
+its Subsidiaries immediately prior to the Effective Time and (ii) target annual
+cash bonus opportunities or commission opportunities (as applicable) that are no
+less favorable than the target annual cash bonus opportunities or commission
+opportunities (as applicable) provided to such Continuing Employee by the
+Company and its Subsidiaries immediately prior to the Effective Time. During the
+Continuation Period, Parent shall or shall cause the Surviving Corporation to
+provide Continuing Employees with employee benefits (other than any equity-based
+compensation or benefits, transaction-triggered benefits, deferred compensation,
+defined benefit pension, or retiree health or welfare benefits) that are
+substantially comparable in the aggregate to those provided by the Company and
+its Subsidiaries to such Continuing Employees as of immediately prior to the
+Effective Time under the Company Plans listed on Section 5.1(h)(i) of the
+Company Disclosure Letter.  Additionally, during the Continuation Period, Parent
+shall or shall cause the Surviving Corporation to provide each Continuing
+Employee with severance benefits that are no less favorable than the severance
+benefits provided by the Company and its Subsidiaries to such Continuing
+Employee immediately prior to the Effective Time under the Company Plans set
+forth on Section 5.1(h)(i) of the Company Disclosure Letter.
+ 
+55
+
+--------------------------------------------------------------------------------
+
+(b)         From and after the Closing Date, Parent shall or shall cause the
+Surviving Corporation to use reasonable best efforts to provide that no
+pre-existing conditions, exclusions or waiting periods shall apply to Continuing
+Employees or their dependents under the group health benefit plans provided for
+those individuals except to the extent such condition or exclusion was
+applicable to an individual Continuing Employee prior to the Effective Time. 
+With respect to the first plan year during which the Continuing Employees begin
+participating in any welfare benefit plan offered by Parent or its Affiliates
+(each a “Parent Plan”), Parent shall use reasonable best efforts to provide, or
+cause to be provided, each Continuing Employee with credit for deductibles,
+co-insurance, co-payments and out-of-pocket requirements paid under a Company
+Plan during such plan year and prior to the Continuing Employee’s participation
+in such Parent Plan in satisfying any applicable deductible, co-insurance,
+co-payments or out-of-pocket requirements under any Parent Plan in which such
+Continuing Employee is eligible to participate during such year, to the same
+extent and for the same purpose as credited under the corresponding Company
+Plan, provided that no duplication of benefits shall result.
+ 
+(c)        From and after the Closing Date, Parent shall, or shall cause the
+Surviving Corporation to, provide credit to Continuing Employees for their
+service with the Company, its Affiliates and each of their respective
+predecessors as of the Effective Time for purposes of vesting, eligibility to
+participate and level of paid time off and severance benefits under the Parent
+Plans (other than any equity-based compensation or benefits, defined benefit
+pension, or retiree health or welfare benefits) to the same extent and for the
+same purpose as credited under the corresponding Company Plan as of the
+Effective Time, provided that such service shall not be recognized to the extent
+that such recognition would result in a duplication of benefits.
+ 
+(d)        Each Continuing Employee who participates in a cash bonus program of
+the Company, whether annual or otherwise, shall be eligible to receive payment
+of a cash bonus pursuant to the terms and conditions of such cash bonus program,
+based on the Company’s actual performance through the end of the applicable
+performance period; provided that the applicable performance criteria may be
+equitably adjusted by the compensation committee of the board of directors of
+the Company to account for the transactions contemplated by this Agreement and
+all related expenses and costs; provided, further, that any such adjustment
+shall not adversely affect the participants in the program.
+ 
+(e)          The provisions of this Section 6.9 are solely for the benefit of
+the parties to this Agreement, and neither any current or former employee, nor
+any other individual associated therewith, is or shall be regarded for any
+purpose as a third party beneficiary to this Agreement.  Notwithstanding
+anything to the contrary in this Agreement (except to the extent provided in
+Section 9.8), no provision of this Agreement is intended to, or does, (i)
+constitute the establishment of, or an amendment to, any Company Plan or any
+employee benefit plan of Parent, the Surviving Corporation or any of their
+Affiliates, (ii) alter or limit the ability of Parent to amend, modify or
+terminate any Company Plan or any other benefit plan, program, agreement or
+arrangement, (iii) give any third party any right to enforce the provisions of
+this Section 6.9, (iv) prevent Parent, the Surviving Corporation or any of their
+Affiliates, after the Effective Time, from terminating the employment of any
+Continuing Employee or (v) be deemed to confer upon any such individual or legal
+representative any rights under or with respect to any plan, program or
+arrangement described in or contemplated by this Agreement, and each such
+individual or legal representative shall be entitled to look only to the express
+terms of any such plan, program or arrangement for his or her rights thereunder.
+ 
+56
+
+--------------------------------------------------------------------------------
+
+6.10       Expenses.  Except as otherwise provided in Sections 6.15 and 8.5,
+whether or not the Merger is consummated, all costs and expenses incurred in
+connection with this Agreement and the Offer, the Merger and the other
+transactions contemplated by this Agreement shall be paid by the party incurring
+such expense, except that Parent will be responsible for, and pay, one hundred
+percent (100%) of the fees, costs and expenses incurred in connection with the
+filings required under the HSR Act.
+ 
+6.11        Indemnification; Directors’ and Officers’ Insurance.
+ 
+(a)        From and after the Effective Time the Surviving Corporation shall, in
+accordance with the organizational documents of the Surviving Corporation as in
+effect on the date of this Agreement, indemnify, defend and hold harmless each
+individual who is (or who at any time prior to the Effective Time was) a
+director or officer of the Company or any of its Subsidiaries or is (or who at
+any time prior to the Effective Time was) serving at the request of the Company
+or any of its Subsidiaries as a director, officer, employee or agent of another
+Person (together with such individual’s heirs, executors and administrators, the
+“Indemnified Parties”), against any and all costs (including settlement costs)
+or expenses (including reasonable attorneys’ fees), judgments, fines, losses,
+claims, damages, penalties or liabilities incurred in connection with any claim,
+action, suit, proceeding or investigation, whether civil, criminal,
+administrative or investigative, arising out of or based on, in whole or in
+part, the fact that such Indemnified Party prior to the Effective Time is or was
+(or with respect to any acts or omissions by such Indemnified Party in their
+capacity as) a director or officer, of the Company, or is or was serving at the
+request of the Company as a director, officer, employee or agent of another
+Person, in each case, whether threatened, pending or completed and whether
+asserted or claimed prior to, at or after the Effective Time (including with
+respect to matters existing or occurring at or prior to the Effective Time, and
+including any such claims, actions, suits, proceedings or investigations arising
+out of or related to this Agreement and the transactions contemplated hereby and
+actions taken in connection herewith prior to the Effective Time), to the
+fullest extent the Surviving Corporation may do so in accordance with its
+organizational documents and to the extent permitted by applicable Law. The
+Surviving Corporation shall also advance expenses as incurred to the fullest
+extent the Surviving Corporation may do so in accordance with its organizational
+documents and to the extent permitted under applicable Law; provided that the
+Person to whom expenses are advanced shall provide an undertaking to repay such
+advances if it is ultimately determined that the Indemnified Party is not
+entitled to indemnification hereunder.  The Surviving Corporation shall ensure
+that the organizational documents of the Surviving Corporation and its
+Subsidiaries, for a period of six (6) years from and after the Effective Time,
+contain provisions no less favorable with respect to indemnification,
+advancement of expenses and exculpation of present and former directors and
+officers of the Company and its Subsidiaries than are presently set forth in the
+Company Certificate of Incorporation and Company Bylaws (or equivalent
+organizational and governing documents of any Subsidiary).  Any right of
+indemnification of an Indemnified Party pursuant to this Section 6.11 shall not
+be amended, repealed or otherwise modified at any time in a manner that would
+adversely affect the rights of such Indemnified Party as provided herein.
+ 
+57
+
+--------------------------------------------------------------------------------
+
+(b)        Prior to the Effective Time, the Company shall obtain from an
+insurance carrier with the same or better credit rating as the Company’s current
+insurance carrier with respect to directors’ and officers’ liability insurance
+and fiduciary liability insurance (collectively, “D&O Insurance”), and fully pay
+for, “tail” insurance policies, with a claims period of at least six (6) years
+from and after the Effective Time with benefits and levels of coverage at least
+as favorable as the Company’s existing D&O Insurance policies (including in
+respect of coverage in connection with this Agreement or the transactions or
+actions contemplated hereby); provided, however that in no event shall the
+Company expend for such “tail” policies an aggregate premium amount in excess of
+three hundred percent (300%) of the annual premiums currently paid by the
+Company for its D&O Insurance.  If the Company for any reason fails to obtain
+such “tail” insurance policies as of the Effective Time, the Surviving
+Corporation shall, and Parent shall cause the Surviving Corporation to, (i)
+effective as of the Effective Time, obtain and fully pay for “tail” insurance
+policies for D&O Insurance consistent with the obligations of the Company
+pursuant to the prior sentence or (ii) continue to maintain in effect for a
+period of at least six (6) years from and after the Effective Time the D&O
+Insurance in place as of the date of this Agreement with benefits and levels of
+coverage at least as favorable as provided in the Company’s existing D&O
+Insurance policies as of the date of this Agreement, or the Surviving
+Corporation shall, and Parent shall cause the Surviving Corporation to, purchase
+comparable D&O Insurance for such six-year period with benefits and levels of
+coverage at least as favorable as provided in the Company’s existing D&O
+Insurance policies as of the date of this Agreement; provided, however that in
+no event shall Parent or the Surviving Corporation expend for such policies, an
+aggregate amount in excess of three hundred percent (300%) of the annual
+premiums currently paid by the Company for such D&O Insurance. If the aggregate
+costs for any insurance coverage required to be obtained pursuant to this
+Section 6.11(b) exceeds three hundred percent (300%) of the annual premiums
+currently paid by the Company for such D&O Insurance, the Company or the
+Surviving Corporation, as applicable, shall obtain a policy or “tail” coverage
+with the greatest coverage available for a cost not exceeding such maximum
+amount.
+ 
+(c)        If Parent, the Surviving Corporation or any of their respective
+successors or assigns (i) shall consolidate with or merge into any other Person
+and shall not be the continuing or surviving corporation or entity of such
+consolidation or merger or (ii) shall transfer all or substantially all of its
+properties and assets to any Person, then and in each such case as a condition
+thereto, Parent or the Surviving Corporation (or their respective successors or
+assigns), as applicable, shall cause such Person to assume the obligations set
+forth in this Section 6.11.
+ 
+(d)          The provisions of this Section 6.11 are intended to be for the
+benefit of, and shall be enforceable by, each of the Indemnified Parties.  The
+rights of each Indemnified Party under this Section 6.11 shall be in addition to
+any rights such individual may have under the Laws of the State of Delaware, any
+applicable indemnification agreement to which such Person is a party, the
+Company Certificate of Incorporation or the Company Bylaws, and Parent
+acknowledges and agrees that all rights to indemnification, advancement of
+expenses and exculpation from liabilities in effect as of the date of this
+Agreement in favor of any Indemnified Party for actions or omissions occurring
+at or prior to the Effective Time shall continue in full force and effect in
+accordance with their terms.
+ 
+58
+
+--------------------------------------------------------------------------------
+
+(e)         Neither Parent nor the Surviving Corporation shall settle,
+compromise or consent to the entry of any judgment in any threatened or actual
+Proceeding for which indemnification could be sought by an Indemnified Party
+hereunder, unless such settlement, compromise or consent includes an
+unconditional release of such Indemnified Party from all liability arising out
+of such Proceeding or such Indemnified Party otherwise consents in writing (such
+consent not to be unreasonably withheld or delayed) to such settlement,
+compromise or consent.
+ 
+(f)          Nothing in this Agreement is intended to, shall be construed to or
+shall release, waive or impair any rights to any directors’ and officers’
+insurance claims under any policy that is or has been in existence with respect
+to the Company or any of its Subsidiaries for any of their respective directors
+or officers or other employees, it being understood and agreed that the
+indemnification provided for in this Section 6.11 is not prior to or in
+substitution for any such policies.
+ 
+6.12       Takeover Statute.  The Company and the Board shall (a) take all
+action necessary to ensure that no Takeover Statute or similar Law is or becomes
+applicable to this Agreement or any of the transactions contemplated hereby, and
+(b) if any Takeover Statute is or may become applicable to the Offer, the Merger
+or the other transactions contemplated by this Agreement, grant such approvals
+and take all actions necessary to ensure that such transactions may be
+consummated as promptly as practicable on the terms contemplated by this
+Agreement and to eliminate or minimize the effects of such statute or regulation
+on such transactions.
+ 
+6.13       Control of the Company’s or Parent’s Operations.  Nothing contained
+in this Agreement shall give Parent or the Company, directly or indirectly,
+rights to control or direct the operations of the other prior to the Effective
+Time.  Prior to the Effective Time, each of Parent and the Company shall
+exercise, consistent with the terms and conditions of this Agreement, complete
+control and supervision of its operations.
+ 
+6.14       Section 16(b).  Prior to the Effective Time, the Company shall (and
+shall be permitted to) take all actions as may be reasonably requested by any
+party hereto to cause any dispositions (or deemed dispositions) of equity
+securities of the Company (including any derivative securities with respect to
+any equity securities of the Company) by each individual who is a director or
+officer of the Company to be exempt under Rule 16b-3 promulgated under the
+Exchange Act.
+ 
+59
+
+--------------------------------------------------------------------------------
+
+6.15       Financing.
+ 
+(a)        During the Pre-Closing Period, subject to the limitations set forth
+below, and unless otherwise agreed by Parent, the Company shall use reasonable
+best efforts to, and shall use reasonable best efforts to cause its Subsidiaries
+and its and their respective Representatives to use reasonable best efforts to,
+cooperate with Parent as reasonably requested by Parent and as is customary for
+financings of the type contemplated by the Debt Commitment Letter, and at
+Parent’s sole expense, in connection with Parent’s arrangement and obtaining the
+Debt Financing; provided, however, that such cooperation does not and shall not:
+(i) require the entry by the Company or any of its Subsidiaries into any
+agreement or commitment that would be effective prior to the Effective Time or
+that is not contingent on the occurrence of the Effective Time, (ii)
+unreasonably interfere with the normal operations of the Company and its
+Subsidiaries, (iii) include any actions that the Company reasonably believes
+would (A) result in a violation of any Contract (including the Existing Credit
+Facility) or confidentiality agreement or any Law, or in the loss of any legal
+or other privilege or (B) contravene, conflict with or violate the Company’s
+organizational documents, (iv) involve consenting to the pre-filing of any
+UCC-1s or similar financing statements or any other grant of Liens or other
+encumbrances prior to the Closing, (v) require the giving of representations or
+warranties to any third parties (other than pursuant to customary authorization
+letters) or the indemnification thereof that would be effective prior to the
+Effective Time or that is not contingent on the occurrence of the Effective
+Time, (vi) require the waiver or amendment of any terms of this Agreement, (vii)
+require the payment of any fees or reimbursement of any expenses prior to the
+Closing for which the Company has not received prior reimbursement, (viii) cause
+any director, officer or employee of the Company or any of its Subsidiaries to
+incur any personal liability (including that neither the board of directors (or
+any committee thereof) of the Company or of any of its Subsidiaries (including
+any equivalent governing body) shall be required to adopt any resolutions or
+take any similar action approving the Financing that would be effective prior to
+the Effective Time or that is not contingent on the occurrence of the Effective
+Time), (ix) require the delivery of any projections, pro forma financial
+information or any other forward-looking information, (x) require the delivery
+of any financial statements in a form or subject to a standard different than
+those provided to Parent on or prior to the date hereof, (xi) require the
+Company or any of its Subsidiaries to pay any commitment or other fees or incur
+or pay any expenses in connection with the Debt Financing prior to the Closing
+(other than expenses incurred by the Company or any of its Subsidiaries in
+connection with the preparation of historical financial information or the
+preparation of payoff documentation) or (xii) require delivery of any legal
+opinions by counsel to the Company or any of its Subsidiaries or accountants’
+comfort letters or reliance letters.  Subject to the foregoing limitations, such
+cooperation shall include, if reasonably requested by Parent, the Company using
+reasonable best efforts, and using its reasonable best efforts to cause its
+Subsidiaries and its and their respective Representatives to (A) assist in the
+preparation of a customary bank information memorandum, marketing materials and
+similar marketing documents and deliver customary authorization letters in
+connection therewith; (B) cause the senior officers of the Company and its
+Subsidiaries to participate in a reasonable number of meetings and due diligence
+sessions upon reasonable advance notice and at mutually agreeable times, in each
+case in connection with the Debt Financing; (C) facilitate the execution and
+delivery of definitive documents customarily required in connection with the
+Debt Financing, including the pledging of collateral, any guarantees, pledge and
+security documents, credit agreements, notes, mortgages, other definitive
+financing documents, or other certificates (including a solvency certificate in
+the form attached to the Bank Commitment Letter) required to be executed or
+entered into with respect to the Debt Financing; provided, that no such
+definitive documents shall be effective until the Closing; (D) furnish Parent,
+by at least three business days prior to the Closing Date, with all
+documentation and other information required by regulatory authorities under
+applicable “know your customer,” beneficial owner and anti-money laundering
+rules and regulations, including without limitation the PATRIOT Act, that is
+reasonably requested at least ten (10) Business Days prior to the Closing Date;
+(E) furnish Parent with the financial statements specified in Section 4.01(h) of
+Exhibit B to the Bank Commitment Letter; (F) provide information necessary to
+assist Parent in Parent’s preparation of customary pro forma financial
+statements (it being understood that (x) Parent shall be responsible for the
+preparation of pro forma financial statements or any other information regarding
+any post-Closing or pro forma cost savings, synergies, capitalization, ownership
+or other post-Closing pro forma adjustments necessary or desired to be
+incorporated into any information used in connection with the Financing and (y)
+such pro forma financial statements shall not be required to be prepared in
+compliance with Regulation S-X); (G) take such actions as may be reasonably
+requested by Parent that are necessary to facilitate the satisfaction of the
+conditions to the Debt Financing to the extent that the satisfaction thereof is
+within the control of the Company or any of its Subsidiaries; and (H) obtain a
+customary payoff letter in connection with the Debt Payoff from the agent under
+the Existing Credit Facility, which payoff letter together with any related
+release documentation shall, among other things, include the payoff amount and
+provide that the Liens and guarantees, if any, granted in connection therewith
+related to the assets, rights and properties of the Company and its applicable
+Subsidiaries securing the indebtedness for borrowed money and any other
+obligations under the Existing Credit Facility (other than any contingent
+indemnification and reimbursement obligations and other surviving obligations)
+shall, upon the payment of the amount set forth in such payoff letter at or
+prior to the Closing Date be released and terminated and deliver or cause to be
+delivered such payoff letters, together with related release documentation, to
+Parent on or prior to the Closing Date. Parent agrees that the effectiveness of
+any documents executed by or on behalf of the Company in connection with the
+Debt Financing shall be subject to, and shall not be effective until, the
+consummation of the Closing.  All non-public or otherwise confidential
+information regarding the Company or any of its Subsidiaries or Affiliates
+obtained by Parent pursuant to this Section 6.15(a) shall be kept confidential
+in accordance with the Confidentiality Agreement; provided that financing
+sources, rating agencies, prospective lenders and investors and each of their
+respective agents and advisors may agree to keep any applicable confidential
+information concerning the Company and its Subsidiaries confidential including
+through “click through” confidentiality agreements and confidentiality
+provisions contained in customary bank books and offering memoranda. Parent will
+promptly reimburse the Company at the Closing or, upon termination of this
+Agreement pursuant to Section 8.3(a) or Section 8.3(c), after written request
+therefor for any reasonable and documented out-of-pocket expenses incurred
+(other than in connection with the preparation of historical financial
+information or preparation of payoff documentation) or otherwise payable by the
+Company prior to the Closing in connection with its cooperation pursuant to this
+Section 6.15(a).
+ 
+60
+
+--------------------------------------------------------------------------------
+
+(b)         During the Pre-Closing Period, Parent shall not, without obtaining
+the Company’s prior written consent, permit any replacement, amendment or
+modification to be made to, or any waiver of any provision or remedy under, or
+any release of a Lender or a Purchaser of its commitment under or consent to the
+termination of, any Commitment Letter that would, or would reasonably be
+expected to, (i) reduce (or have the effect of reducing) the aggregate amount of
+the Financing below the Required Financing Amount; (ii) impose new or otherwise
+expand upon any of the conditions precedent to the funding of the Financing; or
+(iii) adversely impact the ability of Parent to enforce its rights against the
+other parties to the Commitment Letters or the definitive agreements with
+respect thereto; provided that any amendment, supplement or modification (x) to
+effectuate any "market flex" terms expressly set forth in the Bank Commitment
+Letter , (y) to add any additional agents, arrangers or lenders, and reallocate
+commitments among such Persons as provided for in the Debt Commitment Letters
+and/or (z) in connection with any replacement of any Debt  Commitment Letter
+with alternative financing in accordance with Section 6.15(e), in each case,
+shall be permitted and shall not require written consent of the Company.
+ 
+61
+
+--------------------------------------------------------------------------------
+
+(c)         Parent shall maintain in effect the Equity Commitment Letter, (i)
+use reasonable best efforts to ensure the accuracy of all representations and
+warranties of Parent, if any, set forth in the Equity Commitment Letter, (ii)
+comply with its obligations under the Equity Commitment Letter, (iii) satisfy on
+a timely basis all conditions applicable to Parent in the Equity Commitment
+Letter that are within its control, (iv) subject to Section 9.13, enforce its
+rights under (and, subject to Section 9.13, permitting the Company to enforce
+its third-party beneficiary rights under) the Equity Commitment Letter and (v)
+simultaneous with the consummation of the Debt Financing, consummate the Equity
+Financing at the Closing, including by causing the Equity Investor to fund the
+Equity Financing at the Closing in accordance with the Equity Commitment Letter.
+ 
+(d)         During the Pre-Closing Period, Parent shall use its reasonable best
+efforts to obtain the Debt Financing on or prior to the Closing Date on the
+terms and conditions described in the Debt Commitment Letters (or other terms
+and conditions as Parent shall agree so long as not in contravention of Section
+6.15(b)), including using its reasonable best efforts to (i) maintain in effect
+the Debt Commitment Letters prior to the expiration or termination thereof in
+accordance with its terms, (ii) comply with its obligations under the Debt
+Commitment Letters in all material respects, (iii) as promptly as practicable
+negotiate, execute and deliver definitive agreements with respect to the Debt
+Commitment Letters taking into account the timing of the Closing, (iv) satisfy
+on a timely basis all conditions and obligations applicable to the Issuer or
+Merger Sub, a applicable, in the Debt Commitment Letters and such definitive
+agreements that are within its control and to be satisfied by the Issuer or
+Merger Sub, as applicable, on or prior to the Closing Date (including the
+payment of any commitment, engagement or placement fees required as a condition
+to the Debt Financing), (v) enforce its rights under the Debt Commitment Letters
+and such definitive agreements and (vi) if the conditions satisfied in Article
+VII of this Agreement and the conditions to the Debt Financing have been
+satisfied, consummate the Debt Financing at the Closing.
+ 
+62
+
+--------------------------------------------------------------------------------
+
+(e)          If any portion of the Debt Financing becomes unavailable on the
+terms (including any flex rights) and conditions contemplated in any Debt
+Commitment Letter, Parent shall use reasonable best efforts to obtain, as
+promptly as practicable following the occurrence of such event, (i) alternative
+third-party debt or third-party preferred equity financing for any such portion,
+in an amount that is sufficient, when added to any portion of the Debt Financing
+that is available and the Equity Financing, to pay the Required Financing Amount
+prior to the Termination Date (the “Alternative Financing”) and (ii) a new Debt
+Commitment Letter and new definitive agreements with respect to such Alternative
+Financing not imposing economic terms that are, taken as a whole, less favorable
+to Parent or other terms less favorable in any material respect, including any
+new or additional condition to the availability of or obligation to fund and
+make available the proceeds of the financing under, or otherwise expanding any
+condition to draw or adding other terms that would reasonably be expected to
+materially affect the availability of the Financing at, the Closing (the
+“Alternative Financing Commitments”).  Parent shall promptly provide the Company
+with true, correct and complete copies of any new Debt Commitment Letter and any
+fee letter (subject to customary redactions to remove any fees and other
+economic terms, none of which would result in any additional conditionality to
+the availability of the Financing, adversely impact the enforceability (or alter
+the termination provisions thereof) or reduce the aggregate principal amount of
+the financing contemplated thereby) in connection therewith.  If any new Debt
+Commitment Letter is obtained, (A) any reference in this Agreement to the
+“Commitment Letters” or “Debt Commitment Letters” shall be deemed to include
+such new Debt Commitment Letter to the extent still then in effect (together
+with any accompanying fee letter), (B) any reference in this Agreement to the
+“Financing” (as it relates to the portion comprised of the Debt Financing) or
+the “Debt Financing” shall mean the debt financing contemplated by the Debt
+Commitment Letters as modified pursuant to the foregoing,(C) any reference in
+this Agreement to the “Lenders”, the “Purchasers”, the “Debt Commitment Parties”
+or the “Financing Sources” shall be deemed to include the lender or purchaser
+parties to such new Debt Commitment Letter to the extent still then in effect. 
+Notwithstanding anything contained in this Section 6.15 or anything else in this
+Agreement to the contrary, in no event shall (I) the reasonable best efforts of
+Parent, the Issuer or Merger Sub be deemed or construed to require Parent, the
+Issuer or Merger Sub to, and none of Parent, the Issuer or Merger Sub shall be
+required to, (x) incur or pay any fees to obtain a waiver or amendment of any
+term of the Debt Commitment Letters or fees (in the aggregate) in excess of
+those contemplated by the Debt Commitment Letters as of the date of this
+Agreement, (y) agree to conditionality or economic terms with respect to the
+Debt Financing that are, taken as a whole, materially less favorable than those
+contemplated by the Debt Commitment Letters or related fee letters (including
+any flex provisions therein) as of the date of this Agreement, or (z) seek or
+accept equity financing from a Person other than the Guarantors or in an amount
+in excess of the Equity Financing Commitments as of the date of this Agreement
+and (II) Parent, the Issuer or Merger Sub have any obligation to take any action
+pursuant to this clause (e) that would cause it to breach any other provisions
+of this Section 6.15.
+ 
+(f)          During the Pre-Closing Period, Parent shall (i) upon request by the
+Company, keep the Company informed in reasonable detail of material activity
+concerning the Financing (including the status of its efforts to obtain the
+Financing or any alternative financing pursuant to Section 6.15(e)) and (ii)
+promptly provide the Company with copies of all executed amendments, written
+modifications or replacements of any Debt Commitment Letter (it being understood
+that any amendments, modifications or replacements shall only be as permitted
+herein), and such other information and documentation (including definitive
+agreements related to the Financing) available to Parent as shall be reasonably
+requested by the Company for purposes of monitoring the progress of the
+financing activities, subject to the confidentiality obligations applicable to
+the Debt Commitment Letters. Without limiting the generality of the foregoing,
+Parent shall promptly notify the Company (A) of any breach (or threatened
+breach) or default (or any event or circumstance that could reasonably be
+expected to give rise to any breach or default) by any party to the Commitment
+Letters or definitive agreements related to the Financing of which Parent
+becomes aware, (B) of the receipt by Parent of any written notice or
+communication from the Equity Investor or any Debt Commitment Party with respect
+to any breach (or threatened breach) or default (or any event or circumstance
+that could reasonably be expected to give rise to any breach or default), or any
+termination or repudiation or threatened termination or repudiation, in each
+case by any party to a Commitment Letter or any definitive agreements related to
+the Financing of any provisions of any Commitment Letter or such definitive
+agreements, (C) of any material dispute or disagreement between or among any
+parties to any Commitment Letter or any definitive agreements related to the
+Financing, including with respect to the obligation to fund the Financing or the
+amount of the Financing to be funded at the Closing, in each case, if Parent at
+any time believes it will not be able to obtain all or any portion of the
+Financing constituting the Required Financing Amount on the terms, in the manner
+or from the sources contemplated by any of the Commitment Letters or any
+definitive agreements related to any of the Financing.  For the avoidance of
+doubt, nothing in this Agreement amends, limits or modifies Parent, the Issuer’s
+and Merger Sub’s, as applicable, right under the respective Financing
+Commitments.
+ 
+63
+
+--------------------------------------------------------------------------------
+
+(g)        Notwithstanding anything to the contrary contained herein but without
+limiting or amending the provisions of Section 6.15, Article VIII or Section
+9.13, the parties acknowledge and agree that neither the obtaining nor the
+availability nor funding of the Debt Financing is a condition to Parent’s or
+Merger Sub’s obligation to timely consummate the transactions contemplated by
+this Agreement as required hereby.
+ 
+(h)         Parent shall indemnify and hold harmless the Company and each of its
+Subsidiaries and their respective Representatives from and against any and all
+actual liabilities, losses, damages, claims, costs, expenses (including
+reasonable attorney’s fees), interest, awards, judgments and penalties suffered
+or incurred by the Company, its Subsidiaries and their respective
+Representatives in connection with the Company’s cooperation with the Debt
+Financing as contemplated by Section 6.15(a) (other than arising from willful
+breach, willful misconduct, fraud or intentional misrepresentation on the part
+of the Company or its Subsidiaries), whether or not the Merger is consummated or
+this Agreement is terminated.
+ 
+6.16      Approval by Sole Stockholder of Merger Sub.  Promptly following the
+execution and delivery of this Agreement by the parties hereto, Parent, as sole
+stockholder of Merger Sub, shall, in accordance with all applicable requirements
+of the DCGL, adopt this Agreement and approve this Agreement and the
+transactions contemplated hereby, including the Offer and the Merger, by written
+consent in accordance with Section 228 of the DGCL.  Parent shall promptly
+deliver a copy of such executed written consent to the Company.
+ 
+6.17      Stockholder Litigation.  The Company shall give Parent the opportunity
+to participate in (but not control) the defense and settlement of any
+stockholder litigation against the Company and/or its officers or directors, and
+Parent shall give the Company the opportunity to participate in (but not
+control) the defense and settlement of any stockholder litigation against Parent
+and/or its officers or directors, in each case relating to the Offer, the Merger
+or any of the other transactions contemplated by this Agreement in accordance
+with the terms of a mutually agreed upon joint defense agreement, provided, that
+neither the Company, its Subsidiaries and their respective Representatives, on
+the one hand, nor Parent, Merger Sub, their respective Subsidiaries and their
+respective Representatives, on the other hand, shall compromise, settle, come to
+an arrangement regarding or offer or agree to compromise, settle or come to an
+arrangement regarding any stockholder litigation or consent to the same unless
+the other party hereto shall have consented in writing (such consent not to be
+unreasonably withheld, conditioned or delayed).
+ 
+6.18    Rule 14d-10 Matters. Prior to the scheduled expiration of the Offer, the
+Company (acting through the Company Board and its Compensation Committee) shall
+use reasonable efforts to take all such steps as may be required to cause to be
+exempt under Rule 14d-10 promulgated under the Exchange Act any then effective
+employment compensation, severance or other employee arrangement between the
+Company or any of its Subsidiaries and any director, officer or employee of the
+Company or any of its Subsidiaries who then holds Shares.  Promptly upon Parent
+or any of its Affiliates entering into any such arrangement with any such
+Person, Parent will provide to the Company any and all information concerning
+such arrangements as may be needed by the Company to comply with this Section
+6.18.
+ 
+64
+
+--------------------------------------------------------------------------------
+
+6.19        Consummation of Exchange.  The Company shall comply with its
+obligations pursuant to, and implement the terms of, the Exchange Agreement,
+including to effect the Exchange prior to the Offer Acceptance Time and the
+Company and Parent shall each, as necessary, use their reasonable best efforts
+to enforce their rights thereunder, including by seeking specific performance.
+ 
+6.20       TRA Termination Agreement.  (i) In connection with the execution of
+this Agreement, the Company will deliver to Parent a fully executed copy of the
+TRA Termination Agreement, by and between the Company, Holdings and holders of
+the Series B Units (the “TRA Termination Agreement”) in the form agreed by the
+parties as of the date hereof, (ii) during the Pre-Closing Period the TRA
+Termination Agreement shall not be amended, modified, waived or terminated
+without Parent’s prior written consent, and (iii) the Company shall, as
+necessary, use its reasonable best efforts to enforce its rights under the TRA
+Termination Agreement.
+ 
+ARTICLE VII
+
+CONDITIONS
+ 
+7.1          Conditions to Each Party’s Obligation to Effect the Merger.  The
+respective obligation of each party to effect the Merger is subject to the
+satisfaction or, to the extent permitted by applicable Law, waiver at the
+Closing of each of the following conditions:
+ 
+(a)          Law; Order.  No Governmental Entity of competent jurisdiction shall
+have enacted, issued, promulgated, enforced or entered any Law or Order (whether
+temporary, preliminary or permanent) that is in effect and restrains, enjoins or
+otherwise prohibits consummation of the Merger.
+ 
+(b)          Consummation of Offer. Merger Sub (or Parent on Merger Sub’s
+behalf) shall have irrevocably accepted for payment all Class A Shares validly
+tendered and not validly withdrawn pursuant to the Offer.
+ 
+ARTICLE VIII
+
+TERMINATION
+ 
+8.1          Termination by Mutual Consent.  This Agreement may be terminated
+and the Offer and the Merger may be abandoned at any time prior to the Offer
+Acceptance Time by mutual written consent of the Company and Parent.
+ 
+8.2          Termination by Either Parent or the Company.  This Agreement may be
+terminated and the Offer and Merger may be abandoned at any time prior to the
+Offer Acceptance Time by either Parent or the Company, by written notice to the
+other, if:
+ 
+65
+
+--------------------------------------------------------------------------------
+
+(a)          the Offer Acceptance Time shall not have occurred prior to 11:59
+a.m., Eastern Time, on November 9, 2020 (the “Termination Date”); provided,
+however, that the right to terminate this Agreement pursuant to this Section
+8.2(a) shall not be available to any Party that has breached in any material
+respect its obligations under this Agreement, which breach shall have been the
+principal cause of the failure of the Offer Acceptance Time to have occurred or
+the Merger to be consummated prior to the Termination Date;
+ 
+(b)          any Law or Order permanently restraining, enjoining or otherwise
+prohibiting the consummation of the Offer or Merger shall have become final and
+non-appealable.
+ 
+8.3          Termination by the Company.  This Agreement may be terminated and
+the Offer and the Merger may be abandoned at any time prior to the Offer
+Acceptance Time by the Company, by written notice to Parent:
+ 
+(a)          if (i) there has been a breach of any representation or warranty by
+Parent or Merger Sub in this Agreement (A) such that as of the date of this
+Agreement or as of the Offer Acceptance Time (except for any representations and
+warranties that expressly relate to a specified date, which representation and
+warranty shall have been true and correct as of such specified date), (I) the
+representations and warranties of Parent and Merger Sub set forth in Section
+5.2(b) (Ownership of Merger Sub) and Section 5.2(c) (Corporate Authority;
+Approval) of this Agreement are not or would not be true and correct in all
+material respects, or (II) any of the other representations and warranties of
+Parent and Merger Sub set forth in this Agreement are not or would not be true
+and correct in all respects, except where the failures of such representations
+and warranties to be so true and correct (read for purposes of this clause
+(i)(A)(II) without giving effect to any “materiality,” “Parent Material Adverse
+Effect” or similar qualification therein), individually or in the aggregate, has
+not, and would not reasonably be expected to have, a Parent Material Adverse
+Effect or (B) at any time prior to the Offer Acceptance Time, each of Parent and
+Merger Sub shall have failed to perform in all material respects all obligations
+required to be performed by it under this Agreement at or prior to such time and
+(ii) such breach or failure to be true is not curable or, if curable, is not
+cured prior to the earlier of (A) thirty (30) days following notice to Parent
+from the Company of such breach or failure and (B) the date that is three (3)
+Business Days prior to the Termination Date; provided that the Company shall not
+have the right to terminate this Agreement pursuant to this Section 8.3(a) if
+the Company is then in material breach of any of its representations,
+warranties, covenants or agreements under this Agreement;
+ 
+(b)         in order to substantially concurrently enter into a definitive
+Alternative Acquisition Agreement with respect to a Superior Proposal in
+accordance with Section 6.2(f), provided that the Company shall not be entitled
+to terminate this Agreement pursuant to this Section 8.3(b), and no such
+purported termination shall have any effect, unless, prior to or concurrently
+with such termination, the Company pays to Parent the Company Termination Fee
+required to be paid pursuant to Section 8.5(b) or if the Company is in breach of
+Section 6.2; or
+ 
+(c)          if (i) all of the Offer Conditions shall have been satisfied or
+waived at the Expiration Time (disregarding any extension of the Expiration Date
+by Merger Sub pursuant to Section 1.1(d)(i)(C)) (other than those conditions
+that by their terms are to be satisfied at the Offer Acceptance Time, each of
+which would be satisfied if the Offer Acceptance Time were to then occur), (ii)
+Merger Sub shall have failed (or Parent shall have failed to cause Merger Sub)
+to accept for payment in accordance with Section 1.1(g)(ii) all Class A Shares
+validly tendered pursuant to the Offer and not properly withdrawn and the Offer
+Acceptance Time has not occurred when required by this Agreement, (iii) the
+Company shall have given Parent written notice at least three (3) Business Days
+prior to such termination stating the Company’s intention to terminate this
+Agreement pursuant to this Section 8.3(c), (iv) all of the Offer Conditions
+remain satisfied throughout such three (3) Business Day period and (v) the
+Merger Sub shall have failed to consummate the Offer by the end of such three
+(3) Business Day period.
+ 
+66
+
+--------------------------------------------------------------------------------
+
+8.4          Termination by Parent.  This Agreement may be terminated and the
+Offer and the Merger may be abandoned at any time prior to the Offer Acceptance
+Time by Parent, by written notice to the Company, if:
+ 
+(a)          the board of directors of the Company shall have made a Change in
+Recommendation (regardless of whether such Change in Recommendation was
+permitted under Section 6.2(f) or 6.2(h));
+ 
+(b)          there has been a breach of any representation, warranty, covenant
+or agreement made by the Company in this Agreement, such that the conditions set
+forth in Annex I would not be satisfied and such breach or failure to be true is
+not curable or, if curable, is not cured prior to the earlier of (i) thirty (30)
+days following written notice to the Company from Parent of such breach or
+failure and (ii) the date that is three (3) Business Days prior to the
+Termination Date; provided that Parent shall not have the right to terminate
+this Agreement pursuant to this Section 8.4(b) if Parent is then in material
+breach of any of its representations, warranties, covenants or agreements under
+this Agreement such that the Company has a valid right to terminate this
+Agreement pursuant to Section 8.3(b); or
+ 
+(c)         the Offer (as extended in accordance with Section 1.1(d)(i)) expires
+or is terminated or withdrawn in accordance with its terms and at such time as
+(i) all of the Offer Conditions having been satisfied or waived (other than (x)
+the Minimum Condition and (y) those conditions that by their nature are to be
+satisfied at the Offer Acceptance Time, but each of which would be satisfied if
+the Offer Acceptance Time were to then occur), and (ii) the Minimum Condition
+having not been satisfied, in each case, without the acceptance for payment of
+any Shares thereunder; provided that Parent shall not have the right to
+terminate this Agreement pursuant to this Section 8.4(c) if Parent is then in
+material breach of any of its representations, warranties, covenants or
+agreements under this Agreement such that the Company has a valid right to
+terminate this Agreement pursuant to Section 8.3(b).
+ 
+8.5          Effect of Termination and Abandonment.
+ 
+(a)          In the event of the valid termination of this Agreement and the
+abandonment of the Offer and Merger pursuant to this Article VIII, this
+Agreement (other than as set forth in this Section 8.5 and in Section 9.1) shall
+become void and of no effect with no liability on the part of any party hereto
+(or of any of its respective Representatives); provided, subject to Section
+9.8(b) that no such termination shall relieve (i) the Company from any liability
+for damages resulting from any Willful Breach by such party prior to such
+termination, (ii) the Company from any obligation to pay, if applicable, the
+Company Termination Fee pursuant to Section 8.5(b) or Section 8.5(c), or (iii)
+Parent from any obligation to pay, if applicable, the Parent Termination Fee
+pursuant to Section 8.5(d).
+ 
+67
+
+--------------------------------------------------------------------------------
+
+(b)          If this Agreement is validly terminated (i) by Parent pursuant to
+Section 8.4(a) (Change in Recommendation), (ii) by the Company pursuant to
+Section 8.3(b) (Termination for Superior Proposal) or (iii) by a Party pursuant
+to Section 8.2 at such time as this Agreement was terminable by Parent pursuant
+to Section 8.4(a), then the Company shall, within two (2) Business Days after
+such termination in the case of clause (i) or clause (iii) or concurrently with
+such termination in the case of clause (ii), pay to Parent or its designee, by
+wire transfer of immediately available funds, a fee equal to $14,700,000 (the
+“Company Termination Fee”).
+ 
+(c)          If (i) this Agreement is validly terminated (A) by Parent or the
+Company pursuant to Section 8.2(a) (Termination Date) prior to the Offer
+Acceptance Time or (B) by Parent pursuant to Section 8.4(b) (Company Breach),
+(ii) prior to such termination but after the date of this Agreement, an
+Acquisition Proposal shall have been publicly made to the Company’s stockholders
+generally or shall have otherwise been publicly announced or become publicly
+known and (iii) within twelve (12) months after the date of such termination,
+the Company enters into a definitive agreement providing for any Acquisition
+Proposal (that is subsequently consummated) or consummates any Acquisition
+Proposal, then the Company shall pay the Company Termination Fee to Parent;
+provided that for purposes of this Section 8.5(c), references to “twenty (20%)
+or more” in the definition of “Acquisition Proposal” shall be deemed to be
+references to “fifty percent (50%) or more”.
+ 
+(d)          In the event of the valid termination of this Agreement by the
+Company pursuant to Section 8.3(a) (Parent Breach) or Section 8.3(c) (Failure to
+Close), Parent shall promptly, but in no event later than two (2) Business Days
+after the date of such termination, pay or cause to be paid to the Company by
+wire transfer of immediately available funds an amount equal to $29,400,000 (the
+“Parent Termination Fee”).
+ 
+(e)           The parties acknowledge and hereby agree that each of the Company
+Termination Fee and the Parent Termination Fee, as applicable, if, as and when
+required to be paid pursuant to this Section 8.5, shall not constitute a penalty
+but will be liquidated damages, and that the amount thereof is a reasonable
+amount that will compensate the party receiving such funds in the circumstances
+in which it is payable for the efforts and resources expended and opportunities
+foregone while negotiating this Agreement and in reliance on this Agreement and
+on the expectation of the consummation of the Offer and Merger, which amount
+would otherwise be impossible to calculate with precision. The parties
+acknowledge and hereby agree that in no event shall either the Company be
+required to pay the Company Termination Fee or Parent be required to pay the
+Parent Termination Fee or any portion thereof, as the case may be, on more than
+one occasion.
+ 
+(f)           Each party acknowledges that the agreements contained in this
+Section 8.5 are an integral part of the transactions contemplated by this
+Agreement, and that, without these agreements, no party would have entered into
+this Agreement.
+ 
+68
+
+--------------------------------------------------------------------------------
+
+(g)         Notwithstanding anything to the contrary in this Agreement, but
+subject to the proviso in Section 8.5(a) and Section 9.13, in any circumstance
+in which this Agreement is terminated and Parent has the right to receive
+payment of the Company Termination Fee, the payment of the Company Termination
+Fee shall be the sole and exclusive remedy of Parent and its Subsidiaries and
+Affiliates and any of their respective former, current or future general or
+limited partners, stockholders, controlling Persons, managers, members,
+directors, officers, employees, Affiliates, the Financing Sources, the
+Guarantors, representatives, agents or any their respective heirs, assignees or
+successors or any former, current or future general or limited partner,
+stockholder, controlling Person, manager, member, director, officer, employee,
+Affiliate, representative, agent, assignee or successor of any of the foregoing
+(the “Parent Related Parties”) against the Company, its Subsidiaries and
+Affiliates and any of their respective former, current or future general or
+limited partners, stockholders, controlling Persons, managers, members,
+directors, officers, employees, Affiliates, representatives, agents or any their
+respective heirs, assignees or successors or any former, current or future
+general or limited partner, stockholder, controlling Person, manager, member,
+director, officer, employee, Affiliate, representative, agent, assignee or
+successor of any of the foregoing (collectively, “Company Related Parties”) for
+any loss or damage suffered as a result of the failure of the Offer, the Merger
+and the other transactions contemplated by this Agreement to be consummated or
+for a breach of, or failure to perform under, this Agreement or any certificate
+or other document delivered in connection herewith or otherwise or in respect of
+any representation (oral or otherwise) made or alleged to have been made in
+connection herewith or therewith, and upon payment of such amounts, none of the
+Company Related Parties shall have any further liability or obligation relating
+to or arising out of this Agreement, whether in equity or at law, in contract,
+in tort or otherwise.
+ 
+(h)         Notwithstanding anything to the contrary in this Agreement or the
+Equity Commitment Letter, without limiting the last sentence of this Section
+8.5(h), in the event that this Agreement is terminated, the Company’s right (if
+any) to receive the payment of the Parent Termination Fee shall be the sole and
+exclusive remedy of the Company and any other Person against the Parent Related
+Parties, and no Parent Related Party shall have any other liability for any or
+all losses suffered or incurred by the Company or any other Person in connection
+with this Agreement (and the termination hereof), the Offer, the Merger (and the
+abandonment of the Offer and the Merger), any matter with respect to the
+transactions contemplated hereby, any matter forming the basis for such
+termination or any breach (including any Willful Breach) of this Agreement or
+any of the other Transaction Documents, and neither the Company nor any other
+Person shall be entitled to bring or maintain any other claim, action or
+proceeding against Parent or any other Parent Related Party arising out of this
+Agreement, the Offer, the Merger or any matters forming the basis for such
+termination.  For the avoidance of doubt, while the Company may pursue both a
+grant of specific performance and the payment of the Parent Termination Fee (in
+each case in accordance with the terms of this Agreement), under no
+circumstances shall the Company be permitted or entitled to receive both a grant
+of specific performance and any money damages, including all or any portion of
+the Parent Termination Fee or receive any monetary damages other than the Parent
+Termination Fee when payable hereunder.
+ 
+ARTICLE IX
+
+MISCELLANEOUS AND GENERAL
+ 
+9.1          Survival.  This Article IX and the agreements of the Company,
+Parent and Merger Sub contained in Section 1.1(d)(ii) (Offer Extension
+Deadline), Section 1.1(e) (Termination of the Offer), Section 6.6(b) (Access;
+Consultation), Section 6.10 (Expenses), Section 6.15(h) (Financing
+Indemnification), Section 8.5 (Effect of Termination and Abandonment) and the
+Confidentiality Agreement shall survive any termination of this Agreement,
+provided that Section 9.13 shall only survive with respect to such provisions
+that survive the termination of this Agreement in accordance with this
+sentence.  This Article IX and covenants or agreements contained in this
+Agreement or in any of the Transaction Documents that contemplate performance
+after the Effective Time shall survive the consummation of the Merger (to the
+extent specified therein, in accordance with their respective terms).  All other
+representations, warranties, covenants and agreements in this Agreement shall
+not survive the consummation of the Merger or the termination of this Agreement.
+ 
+69
+
+--------------------------------------------------------------------------------
+
+9.2          Modification or Amendment.  This Agreement may be amended by the
+parties at any time prior to the Offer Acceptance Time by execution of an
+instrument in writing signed on behalf of Parent, Merger Sub and the Company
+(pursuant to authorized action by the board of directors of the Company (or a
+committee thereof)).  Notwithstanding the foregoing, no amendments or
+modifications to the provisions of this Section 9.2, Section 9.5(c), Section
+9.5(d), Section 9.8 and Section 9.13(b), to which the Financing Sources or
+Equity Investor are expressly made third-party beneficiaries pursuant to Section
+9.8 shall be permitted in a manner adverse to any Equity Investor or the
+Financing Sources without the prior written consent of such Equity Investor or
+the Lender(s) or Purchaser(s), as applicable, party to the applicable Debt
+Commitment Letter.
+ 
+9.3          Waiver.
+ 
+(a)          Any provision of this Agreement may be waived prior to the
+Effective Time if, and only if, such waiver is in writing and signed by the
+party against whom the waiver is to be effective, except that the Minimum
+Condition may only be waived by Merger Sub with the prior written consent of the
+Company.
+ 
+(b)          No failure or delay by any party in exercising any right, power or
+privilege hereunder shall operate as a waiver thereof nor shall any single or
+partial exercise thereof preclude any other or further exercise thereof or the
+exercise of any other right, power or privilege.  Except as otherwise herein
+provided, the rights and remedies herein provided shall be cumulative and not
+exclusive of any rights or remedies provided by Law.
+ 
+9.4          Counterparts; Effectiveness.  This Agreement may be executed in any
+number of counterparts (including by facsimile or by attachment to electronic
+mail in portable document format (PDF)), each such counterpart being deemed to
+be an original instrument, and all such counterparts, taken together, shall
+constitute one and the same agreement, and shall become effective when one or
+more counterparts have been signed by each of the parties hereto and delivered
+to the other parties hereto.
+ 
+9.5          Governing Law and Venue; Waiver of Jury Trial.
+ 
+(a)          THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
+SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS
+OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OR CHOICE OF LAW
+PRINCIPLES THEREOF.
+ 
+70
+
+--------------------------------------------------------------------------------
+
+(b)          Subject to Section 9.5(c), each of the parties hereto hereby
+irrevocably and unconditionally (i) consents to submit itself to the personal
+jurisdiction of the Court of Chancery of the State of Delaware or, if such court
+lacks subject matter jurisdiction, any federal court located in the State of
+Delaware in the event any of any dispute arising out of or related to this
+Agreement or any of the transactions contemplated hereby, (ii) agrees that it
+will not attempt to deny or defeat such personal jurisdiction by motion or other
+request for leave from any such court, (iii) agrees that it will not, and waives
+any right to, bring any Proceeding by or before any Governmental Entity (each,
+an “Action”) relating to or arising out of this Agreement or any of the
+transactions contemplated hereby in any court other than the Court of Chancery
+of the State of Delaware or, if such court lacks subject matter jurisdiction,
+any federal court located in the State of Delaware, and (iv) waives any
+objection that it may now or hereafter have to the venue of any such Action in
+the Court of Chancery of the State of Delaware or, if such court lacks subject
+matter jurisdiction, any federal court located in the State of Delaware or that
+such Action was brought in an inconvenient forum and agrees not to plead or
+claim the same. Each of the Company, Parent and Merger Sub hereby agrees that
+and consents to service of any process, summons, notice or document by U.S.
+registered mail to the respective addresses set forth in Section 9.6 shall be
+effective service of process for any Action in connection with this Agreement or
+the transactions contemplated hereby.
+ 
+(c)          Notwithstanding anything herein to the contrary, each of the
+parties hereto hereby irrevocably and unconditionally agrees that any legal
+action or proceeding involving any Financing Source arising out of or relating
+to this Agreement, the Debt Commitment Letter or the Debt Financing shall be
+brought and determined in the Supreme Court of the State of New York, County of
+New York; provided, that if jurisdiction is not then available in the Supreme
+Court of the State of New York, County of New York, then any such legal action
+or proceeding may be brought in any federal court located in the State of New
+York, County of New York (and, in each case, any appellate courts thereof). 
+Each of the parties hereby irrevocably submits to the jurisdiction of the
+aforesaid courts for itself and with respect to its property, generally and
+unconditionally, with regard to any such action or proceeding involving any
+Financing Source arising out of or relating to this Agreement, any Debt
+Commitment Letter or the Debt Financing and the transactions contemplated hereby
+or thereby.  Each of the parties agrees not to commence any action, suit or
+proceeding involving any Financing Source relating thereto except in the courts
+described above in New York, other than actions in any court of competent
+jurisdiction to enforce any judgment, decree or award rendered by any such court
+in New York.  Each of the parties further agrees that delivery of notice by
+registered mail pursuant to Section 9.6 shall constitute sufficient service of
+process with respect to any action or proceeding involving a Financing Source or
+related to the Debt Commitment Letters and the parties further waive any
+argument that such service is insufficient.  Each of the parties hereby
+irrevocably and unconditionally waives, and agrees not to assert, by way of
+motion or as a defense, counterclaim or otherwise, in any action or proceeding
+involving any Financing Source arising out of or relating to this Agreement, any
+Debt Commitment Letter or the Debt Financing or the transactions contemplated
+hereby or thereby, (i) any claim that it is not personally subject to the
+jurisdiction of the courts in New York as described herein for any reason, (ii)
+that it or its property is exempt or immune from jurisdiction of any such court
+or from any legal process commenced in such courts (whether through service of
+notice, attachment prior to judgment, attachment in aid of execution of
+judgment, execution of judgment or otherwise) and (iii) that (A) the suit,
+action or proceeding in any such court is brought in an inconvenient forum, (B)
+the venue of such suit, action or proceeding is improper or (C) this Agreement,
+any Debt Commitment Letter, the Debt Financing, or the subject matter hereof or
+thereof, may not be enforced in or by such courts.
+ 
+71
+
+--------------------------------------------------------------------------------
+
+(d)          EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
+ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
+ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
+WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
+LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
+OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  NOTWITHSTANDING ANYTHING
+HEREIN TO THE CONTRARY, THE COMPANY (ON BEHALF ITSELF AND ITS SUBSIDIARIES) AND
+EACH OF THE OTHER PARTIES HERETO WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT
+TO ANY ACTION RELATED TO ANY DEBT FINANCING OBTAINED BY THE ISSUER, PARENT OR
+ANY OF ITS SUBSIDIARIES IN CONNECTION WITH THE OFFER, THE MERGER OR THE
+PERFORMANCE THEREOF OR THE TRANSACTIONS CONTEMPLATED THEREBY.  EACH PARTY
+CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
+OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
+NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
+SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
+EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH SUCH PARTY HAS BEEN
+INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
+AND CERTIFICATIONS IN THIS SECTION 9.5.
+ 
+9.6          Notices.  Notices, requests, instructions, waivers or other
+documents to be given under this Agreement shall be in writing and shall be
+deemed given, (a) when delivered, if delivered personally to the intended
+recipient, (b) when sent by email (without any “bounceback” or other notice of
+nondelivery) and (c) one (1) Business Day later, if sent by overnight delivery
+via a national courier service (providing proof of delivery), and in each case,
+addressed to a party at the following address for such party:
+ 
+if to Parent or Merger Sub
+ 
+c/o Madison Dearborn Partners, LLC
+70 West Madison
+Chicago, Illinois 60602
+
+
+
+ 
+Attention:
+Email: 
+Legal Department
+
+legal@mdcp.com
+
+ 
+with copies to (which shall not constitute notice):
+ 
+Madison Dearborn Partners, LLC
+70 West Madison
+Chicago, Illinois 60602
+
+
+72
+
+--------------------------------------------------------------------------------
+
+ 
+Attention:
+Email:
+Legal Department
+
+legal@mdcp.com
+
+ 
+and
+ 
+Kirkland & Ellis LLP
+300 North LaSalle Street
+Chicago, IL 60654
+
+
+
+
+ 
+Attention:
+
+
+
+Email:
+Richard J. Campbell, P.C.
+Adam T. Clifford
+
+richard.campbell@kirkland.com
+adam.clifford@kirkland.com
+
+ 
+
+Kirkland & Ellis LLP
+601 Lexington Avenue
+New York, NY 10022 United States
+
+
+
+
+ 
+Attention:
+Email: 
+Sarkis Jebejian, P.C.
+
+sarkis.jebejian@kirkland.com
+
+
+
+if to the Company
+ 
+Benefytt Technologies, Inc.
+3450 Buschwood Park Drive
+Suite 200
+Tampa, Florida 33618
+
+
+
+
+ 
+Attention:
+
+Email:
+Erik Helding
+
+heldinge@bfyt.com
+
+
+with copies to (which shall not constitute notice):
+ 
+Weil, Gotshal & Manges LLP
+767 Fifth Avenue
+New York, New York 10153
+
+
+
+
+ 
+Attention:
+
+
+Email:
+Michael J. Aiello
+Eoghan P. Keenan
+michael.aiello@weil.com
+
+eoghan.keenan@weil.com
+
+
+or to such other persons or addresses as may be designated in writing by the
+party to receive such notice as provided above.
+ 
+9.7          Entire Agreement.  This Agreement (including any exhibits hereto,
+the Company Disclosure Letter and the Parent Disclosure Letter), the
+Confidentiality Agreement and the other Transaction Documents and the documents
+and instruments and other agreements among the Parties as contemplated by or
+referred to herein and therein constitute the entire agreement, and supersede
+any and all other prior agreements, understandings, representations and
+warranties both written and oral, among the parties, with respect to the subject
+matter hereof.
+ 
+73
+
+--------------------------------------------------------------------------------
+
+9.8          No Third-Party Beneficiaries; Non-Recourse.
+ 
+(a)          This Agreement is not intended to, and does not and shall not be
+deemed to, confer upon any Person other than the parties hereto any rights or
+remedies hereunder, other than (i) as provided in Section 6.11 (Indemnification;
+Directors’ and Officers’ Insurance), (ii) the right of the Company’s
+stockholders to receive the Offer Price after the Offer Acceptance Time or
+Merger Consideration after the Closing, as applicable, (iii) the right of the
+holders of equity awards of the Company to receive such consideration as
+provided for in Section 4.5 after the Closing, (iv) this Section 9.8, Section
+8.5(g) (Liability of Company Related Parties), Section 8.5(h) (Liability of
+Parent Related Parties), Section 9.2 (Modification or Amendment) and Section 9.5
+(Governing Law and Venue; Waiver of Jury Trial) which, to the extent applicable
+to the Company Related Parties or Parent Related Parties, are intended to
+benefit and be enforceable by the Company Related Parties and Parent Related
+Parties (as applicable) and (v) the Financing Sources shall be a third-party
+beneficiary of and entitled to enforce, to the extent applicable to the Lender,
+this Section 9.8, Section 9.2 (Modification or Amendment), Section 9.5
+(Governing Law and Venue; Waiver of Jury Trial) and Section 9.13(b) (Specific
+Performance).
+ 
+(b)          This Agreement may be enforced only against the Company, Parent and
+Merger Sub. All Proceedings (whether in contract, tort, or equity, at law, or
+granted by statute, whether by or through attempted piercing of the corporate,
+limited partnership or limited liability company veil or otherwise) that may be
+based upon, arise under, out of, or relate in any manner to (i) this Agreement
+or any of the other agreements or documents contemplated hereby, (ii) the
+negotiation, execution, or performance of this Agreement or any of the documents
+contemplated hereby (including any representation or warranty made in connection
+with, or as an inducement to, this Agreement or any of the other agreements or
+documents contemplated hereby), (iii) any breach (including Willful Breach) or
+violation of this Agreement (including the failure of any representation and
+warranty to be true or accurate) or any of the other Transaction Documents, and
+(iv) the Offer, the Merger or the other transactions contemplated hereby, in
+each case, may be made only against (and are those solely of) the Persons that
+are expressly named as parties to this Agreement or the other Transaction
+Documents, and then only to the extent of the specific obligations of such
+Persons set forth in this Agreement or such other Transaction Document, as
+applicable, and only by Persons that are party to or are expressly identified as
+third party beneficiaries under this Agreement or the other Transaction
+Documents to the extent permitted to institute a Proceeding thereunder. In
+furtherance and not in limitation of the foregoing, and notwithstanding any
+other provision of this Agreement or the Transaction Documents to the contrary,
+the Company covenants, agrees and acknowledges that, except to the extent such
+Person is a party to any of the Transaction Documents, and then only to the
+extent of the specific obligations of such parties set forth in such Transaction
+Document, as applicable, no recourse under this Agreement, any related document
+or any documents or instruments delivered in connection with this Agreement or
+any related document shall be had against any Parent Related Party and neither
+the Company nor any Person acting on its behalf shall assert a claim or
+institute a Proceeding that is not a Retained Claim (as defined in the Limited
+Guarantee). For the avoidance of doubt, it is expressly agreed and understood by
+the Parties that nothing contained in this Section 9.8(b) shall limit the
+Company’s remedies under Section 9.13, as a third party beneficiary under the
+Equity Commitment Letter(s), or under the Limited Guarantee against the
+Guarantors on the terms and subject to the limitations set forth therein.
+ 
+74
+
+--------------------------------------------------------------------------------
+
+9.9         Obligations of Parent and of the Company.  Whenever this Agreement
+requires a Subsidiary of Parent to take any action, such requirement shall be
+deemed to include an undertaking on the part of Parent to cause such Subsidiary
+to take such action.  Whenever this Agreement requires a Subsidiary of the
+Company to take any action, such requirement shall be deemed to include an
+undertaking on the part of the Company to cause such Subsidiary to take such
+action and, after the Effective Time, on the part of Parent and the Surviving
+Corporation to cause such Subsidiary to take such action.
+ 
+9.10       Severability.  The provisions of this Agreement shall be deemed
+severable and in the event any court of competent jurisdiction or arbitral panel
+finds any provision hereof to be invalid or unenforceable, such invalidity or
+enforceability shall not affect the validity or enforceability of the other
+provisions hereof so long as the economic, risk allocation, limitation of
+liability or legal substance of the transactions contemplated by this Agreement
+is not affected in any manner materially adverse to any party as a result
+thereof.  If any provision of this Agreement, or the application thereof to any
+Person or any circumstance, is found to be invalid or unenforceable, (a) a
+suitable and equitable provision negotiated in good faith by the parties hereto
+shall be substituted therefor in order to carry out, so far as may be valid and
+enforceable, the intent and purpose of such invalid or unenforceable provision
+and (b) the remainder of this Agreement and the application of such provision to
+other Persons or circumstances shall not, subject to clause (a) above, be
+affected by such invalidity or unenforceability, except as a result of such
+substitution, nor shall such invalidity or unenforceability affect the validity
+or enforceability of such provision, or the application thereof, in any other
+jurisdiction, in each case, so long as the economic, risk allocation, limitation
+of liability or legal substance of the transactions contemplated by this
+Agreement is not affected in any manner materially adverse to any party as a
+result thereof.
+ 
+9.11        Interpretation.
+ 
+(a)          The table of contents and the Article, Section and subsection
+headings or captions herein are for convenience of reference only, do not
+constitute part of this Agreement and shall not be deemed to limit or otherwise
+affect any of the provisions hereof or the interpretation thereof.  Where a
+reference in this Agreement is made to a Section or Exhibit, such reference
+shall be to a Section of or Exhibit to this Agreement unless otherwise
+indicated.  Whenever the words “include”, “includes” or “including” are used in
+this Agreement, they shall be deemed to be followed by the words “without
+limitation”.  The words “hereof”, “herein” and “hereunder” and words of similar
+import when used in this Agreement shall refer to this Agreement as a whole and
+not to any particular provision of this Agreement.  The word “or” when used in
+this Agreement is not exclusive.  The word “extent” in the phrase “to the
+extent” shall mean the degree to which a subject or other thing extends, and
+such phrase shall not mean simply “if”.  The term “ordinary course of business”
+shall mean in the ordinary course of business consistent with past practice
+(including with respect to type, frequency and magnitude). All terms defined in
+this Agreement shall have the defined meanings when used in any certificate or
+other document made or delivered pursuant hereto unless otherwise defined
+therein.  The definitions contained in this Agreement are applicable to the
+singular as well as the plural forms of such terms and to the masculine as well
+as to the feminine and neuter genders of such term.  Any Contract or information
+referred to herein shall be deemed to have been “delivered”, “provided”,
+“furnished” or “made available” (or any phrase of similar import) to Parent by
+the Company if such Contract or information was posted to the “Dawn 2019” data
+room managed by the Company at datasiteone.merrillcorp.com or the “Benefytt
+Tech, Inc.-High Priority Information” data room maintained by the Company at
+app.box.com in connection with the transaction and was accessible to Parent and
+its advisors prior to the execution and delivery of this Agreement and which
+remains available through the Closing.  When calculating the period of time
+before which, within which or following which any act is to be done or step
+taken pursuant to this Agreement, the date that is the reference date in
+calculating such period shall be excluded and the end of a period shall refer to
+11:59:59 pm eastern time on the last date of such period. If the last day of any
+such period is a day other than a Business Day, the period in question shall
+instead end, and any such step shall be taken by or on, the next succeeding
+Business Day.
+ 
+75
+
+--------------------------------------------------------------------------------
+
+(b)          The parties have participated jointly in negotiating and drafting
+this Agreement.  In the event that an ambiguity or a question of intent or
+interpretation arises, this Agreement shall be construed as if drafted jointly
+by the parties, and no presumption or burden of proof shall arise favoring or
+disfavoring any party by virtue of the authorship of any provision of this
+Agreement.
+ 
+9.12       Assignment.  Neither this Agreement nor any of the rights, interests
+or obligations of the parties hereunder may be assigned, in whole or in part, by
+operation of law or otherwise, by any of the parties hereto without the prior
+written consent of the other parties hereto provided, that Parent or Merger Sub
+may transfer or assign its rights and obligations under this Agreement, in whole
+or in part, from time to time, to (a) one or more of its Affiliates, or (b) to
+any parties providing secured debt financing, solely for purposes of creating a
+security interest herein or otherwise assigning this Agreement as collateral in
+respect of such secured debt financing, and (c) after the Effective Time to any
+Person, provided that no such assignment shall impede or delay the consummation
+of the Offer or the Merger or otherwise impede the rights of the Company under
+this Agreement.  No assignment by any party shall relieve such party of any of
+its obligations hereunder.  Subject to the immediately preceding two sentences,
+this Agreement shall be binding upon, inure to the benefit of, and be
+enforceable by, the parties hereto and their respective successors and permitted
+assigns.  Any purported assignment in violation of this Section 9.12 shall be
+null and void ab initio.
+ 
+9.13        Specific Performance.
+ 
+(a)          The parties hereto acknowledge and agree that irreparable damage
+would occur and that the parties would not have any adequate remedy at Law in
+the event that any of the obligations, undertakings, covenants or agreements of
+the parties to this Agreement were not performed in accordance with their
+specific terms or were otherwise breached, and that monetary damages, even if
+available, would not be an adequate remedy therefor.  Accordingly, the Company,
+on the one hand, and Parent, on the other hand, shall be entitled to an
+injunction or injunctions to prevent breaches or threatened breaches of this
+Agreement by the other parties, and to enforce specifically the terms and
+provisions of this Agreement without the necessity of proving actual harm or
+damages or posting a bond or other security therefor, this being in addition to
+any other remedy to which such party is entitled at law or in equity, and each
+party agrees that it will not oppose the granting of an injunction, specific
+performance or other equitable relief on the basis that any other party has an
+adequate remedy at law or that any award of specific performance or other
+equitable remedy is not an appropriate remedy for any reason at law or in
+equity. Without limitation of the foregoing, the parties hereby further
+acknowledge and agree that prior to the Closing, each party shall be entitled to
+seek specific performance to enforce specifically the terms and provisions of,
+and to prevent or cure breaches of the covenants required to be performed by the
+other parties under this Agreement (including Section 6.5, and including to
+cause Parent and Merger Sub to consummate the Offer, the Merger and the Closing
+when required hereunder and to make the payments contemplated by this Agreement,
+including Article I and Article IV) in addition to any other remedy to which
+such party is entitled at law or in equity and in accordance with this
+Agreement. Each party further agrees that it shall not take any position in any
+legal proceeding concerning this Agreement that is contrary to the terms of this
+Section 9.13.
+ 
+76
+
+--------------------------------------------------------------------------------
+
+(b)          Notwithstanding Section 9.13(a) and subject to the last sentence of
+this Section 9.13(b), it is explicitly agreed that the Company shall be entitled
+to specific performance of Parent’s obligation to cause the Equity Financing to
+be funded in accordance with the terms of the Equity Commitment Letter to fund
+the transactions contemplated by this Agreement and consummate the Closing only
+in the event that (i) all of the Offer Conditions have been satisfied (other
+than those conditions that by their terms are to be satisfied by actions taken
+at or immediately prior to the consummation of the Offer, each of which would be
+satisfied if the Offer Acceptance Time were to then occur) at the time the Offer
+Acceptance Time would have otherwise occurred pursuant to Section 1.1(g)(ii),
+(ii) the financing provided for by the Debt Commitment Letters (or, if
+Alternative Financing is being used in accordance with Section 6.15(e), pursuant
+to the Alternative Financing Commitments with respect thereto) has been funded
+or an agent of the Lender(s) and the Purchaser(s) has confirmed in writing to
+Parent that such financing will be funded at or prior to the Offer Acceptance
+Time if the Equity Financing is funded at or prior to the Offer Acceptance Time,
+(iii) the Company has irrevocably confirmed that it is ready, willing and able
+to, and will, cause the Offer Closing and Closing to occur in accordance with
+the terms of this Agreement if specific performance is granted and the Equity
+Financing and Debt Financing are funded and (iv) Merger Sub shall have failed to
+accept for payment in accordance with Section 1.1(g)(ii) all Class A Shares
+validly tendered pursuant to the Offer and not properly withdrawn or to
+consummate the Merger within two (2) Business Days of the receipt of such
+notice. For the avoidance of doubt, in no event shall the Company or any of its
+successors or permitted assigns be entitled to (x) enforce or seek to enforce
+specifically the remedy of specific performance of any Debt Commitment Letter
+against any Financing Source, (y) be entitled to specifically enforce (or to
+bring any Proceeding in equity seeking to specifically enforce) Parent’s rights
+under the Equity Commitment Letter to cause the Equity Financing to be funded or
+to consummate the Closing other than as expressly provided in the immediately
+preceding sentence, or (z) seek to specifically enforce any provision of this
+Agreement or to obtain an injunction or injunctions, or to bring any other
+Proceeding in equity in connection with the transactions contemplated by this
+Agreement, against any person other than against Parent and, in such case and
+solely with respect to the Proceedings described in this clause (z), only under
+the circumstances expressly set forth in Section 9.13(a) and this Section
+9.13(b).
+ 
+(c)          For the avoidance of doubt, in no event shall the exercise of the
+Company’s or any of its Subsidiaries’ right to seek specific performance
+pursuant to this Section 9.13 reduce, restrict or otherwise limit the Company’s
+right to terminate this Agreement pursuant to Article VIII and/or pursue payment
+of the Parent Termination Fee after the valid termination of this Agreement in
+accordance with Section 8.5(d). Notwithstanding the foregoing, in no event shall
+the Company or any of its Affiliates be entitled to the Parent Termination Fee
+if they have been granted specific performance of this Agreement, the Closing
+actually occurs and Parent makes all of the payments contemplated by Article IV
+hereof and unless this Agreement has been validly terminated in accordance with
+Section 8.5(d).
+ 
+77
+
+--------------------------------------------------------------------------------
+
+9.14        Definitions.  For purposes of this Agreement, the following terms,
+when used herein, shall have the respective meanings set forth below:
+ 
+“Acceptable Confidentiality Agreement” means an executed confidentiality
+agreement with terms that are no less favorable in all material respects to the
+Company than in the Confidentiality Agreement (it being understood that such
+confidentiality agreement need not prohibit the making or amending of any
+confidential Acquisition Proposal), which agreement shall not restrict the
+Company from complying with its obligations under this Agreement.
+ 
+“Affiliate” means, when used with respect to any party, any Person who is an
+“affiliate” of that party within the meaning of Rule 405 promulgated under the
+Securities Act, provided that no portfolio companies of Guarantor, Guarantor or
+of any private equity funds sponsored or managed by the management company of
+Guarantor would be deemed to be Affiliates of Parent or Merger Sub, as
+applicable.
+ 
+“Antitrust Laws” means the Sherman Antitrust Act, the Clayton Antitrust Act of
+1914, the HSR Act and all other federal, state and foreign statutes, rules,
+regulations, orders, decrees and other Laws and Orders that are designed or
+intended to prohibit, restrict or regulate actions having the purpose or effect
+of monopolization or restraint of trade or competition.
+ 
+“Business Day” means any day on which banks are not required or authorized by
+Law to close in New York City.
+ 
+“Change” means any change, event, circumstance, state of fact, effect,
+development, condition or occurrence.
+ 
+“Company Equity Awards” means Company Options, Company SARs and Company
+Restricted Stock Awards.
+ 
+78
+
+--------------------------------------------------------------------------------
+
+“Company Material Adverse Effect” means any Change that, individually or in the
+aggregate with any other Changes, has, or would reasonably be expected to have,
+a material adverse effect on the financial condition, assets, liabilities,
+business or results of operations of the Company and its Subsidiaries, taken as
+a whole; provided that any Change to the extent resulting from any of the
+following shall not be considered when determining whether a Company Material
+Adverse Effect has occurred: (i) Changes in, or events generally affecting, the
+financial, securities or capital markets, (ii) general economic or political
+conditions in the United States or any foreign jurisdiction in which the Company
+or any of its Subsidiaries operate, including any Changes in currency exchange
+rates, interest rates, monetary policy or inflation, (iii) Changes in, or events
+generally affecting, the industries in which the Company or any of its
+Subsidiaries operate, (iv) any acts of war, sabotage, civil disobedience or
+terrorism or natural disasters (including hurricanes, tornadoes, floods or
+earthquakes), epidemics, pandemics or other public health emergencies (including
+the novel strain of coronavirus (SARS-Cov-2) and its disease commonly known as
+COVID-19 (including any and all additional strains, variations or mutations
+thereof) or any Law enacted or imposed by any Governmental Entity in response
+thereto or in connection therewith or effects thereof), or other force majeure
+event, (v) any failure by the Company or any of its Subsidiaries to meet any
+internal or published budgets, projections, forecasts or predictions in respect
+of financial performance for any period, (vi) a decline in the price of the
+Shares, or a Change in the trading volume of the Shares, on the Nasdaq, provided
+that the exceptions in clauses (v) and (vi) shall not prevent or otherwise
+affect a determination that any Change underlying such failure or decline or
+Change (if not otherwise falling within any of the exclusions pursuant to the
+other clauses of this definition) has resulted in, or contributed to, a Company
+Material Adverse Effect, (vii) Changes in Law after the date of this Agreement,
+(viii) Changes in GAAP (or authoritative interpretation thereof) after the date
+of this Agreement or (ix) the taking of any action required to be taken pursuant
+to this Agreement or the failure to take any specific action expressly
+prohibited by this Agreement for which Parent has unreasonably refused the
+Company’s written request to provide consent, (x) the announcement of the
+acquisition of the Company and the other transactions contemplated hereby by the
+Guarantors or any Affiliate of the Guarantors and the impact thereof on the
+relationships with customers, suppliers, distributors, partners, other third
+parties with whom the Company has a relationship or employees, (xi) any
+litigation brought by stockholders of the Company or Parent alleging breach of
+fiduciary duty or inadequate disclosure in connection with this Agreement or any
+of the transactions contemplated hereby, or (xii) any demand, action, claim, or
+proceeding for appraisal of any Shares pursuant to the DGCL in connection
+herewith; provided, however, that any Change referred to in clauses (i)-(iv),
+(vii) and (viii) of this definition may be taken into account in determining
+whether a Company Material Adverse Effect has occurred or would reasonably be
+expected to occur to the extent that such Change, individually or taken together
+with any other Change, has a disproportionate effect on the Company and its
+Subsidiaries, taken as a whole, relative to other companies in the industries
+and markets in which the Company and its Subsidiaries operate (but only to the
+extent of the incremental disproportionate effect on the Company and its
+Subsidiaries, taken as a whole, compared to other companies operating in the
+industries and markets in which the Company and its Subsidiaries operate).
+ 
+“Company Restricted Stock Award” means each restricted stock award granted under
+the Company Stock Plan.
+ 
+“Company Systems” means software, computer firmware, computer hardware, computer
+or information technology systems, electronic data processing systems or
+networks, telecommunications networks, network equipment, interfaces, platforms,
+peripherals, and data or information contained therein or transmitted thereby,
+owned by or relied on by the Company or any of its Subsidiaries.
+ 
+“Confidentiality Agreement” means the confidentiality agreement, dated as of May
+21, 2020, between the Company and Madison Dearborn Partners, LLC, on behalf of
+its Fund VIII private equity funds (the “Confidentiality Agreement”).
+ 
+“Contract” means any written or oral agreement, lease, license, contract,
+consent, settlement, note, mortgage, indenture, arrangement, understanding or
+other obligation, including any amendments, supplements or other modifications
+thereto.
+ 
+79
+
+--------------------------------------------------------------------------------
+
+“Dissenting Shares” means Class A Shares or Class B Shares with respect to which
+the holder thereof has not voted in favor of, or otherwise consented to, the
+adoption of this Agreement and that has otherwise properly perfected a demand
+for appraisal in accordance with Section 262 of the DGCL and not effectively
+lost or withdrawn such right as of the Effective Time.
+ 
+“Dissenting Stockholder” means a holder of Dissenting Shares.
+ 
+“Environmental Law” means any Law relating to pollution or protection of the
+environment or natural resources or public or worker health or safety.
+ 
+“ERISA Affiliate” means any trade or business (whether or not incorporated)
+that, together with the Company or any of its subsidiaries is treated as a
+single employer under Section 414 of the Code.
+ 
+“Existing Credit Facility” means the Credit Agreement, dated June 5, 2019, among
+Holdings, as borrower, the Company, as parent, and certain subsidiaries of the
+Company, as guarantors, Bank of America, N.A., as Administrative Agent,
+Swingline Lender and L/C Issuer, SunTrust Bank, as Syndication Agent, and
+certain other lenders party thereto from time to time.
+ 
+“Existing Exchange Agreement” means the Exchange Agreement, dated as of February
+13, 2013, by and among the Company, Holdings and the holders of Series B
+Membership Interests identified therein.
+ 
+“Financing Sources” means the Persons (including the Lenders and the Purchasers)
+that have committed to provide or arrange the Debt Financing and any joinder
+agreements, indentures or credit agreements entered into pursuant thereto or
+relating thereto, together with their Affiliates, officers, directors,
+employees, agents and representatives involved in the Debt Financing and their
+successors and assigns
+ 
+“GAAP” means U.S. generally accepted accounting principles.
+ 
+“Governmental Entity” means any domestic, foreign or transnational governmental
+or regulatory authority, court, arbitral tribunal agency (public or private),
+commission, tax, regulatory, or administrative body, agency, commission or other
+legislative, executive or judicial governmental entity, self-regulatory agency,
+tribunal or arbitral body (public or private).
+ 
+“Hazardous Substance” means any substance, material or waste that is regulated,
+characterized or otherwise classified as  “hazardous,” “toxic,” a “pollutant,”
+or a “contaminant,” or for which liability or standards of conduct may be
+imposed, pursuant to any Environmental Law, including petroleum and petroleum
+products, polychlorinated biphenyls, poly and perfluoroalkyl substances,
+asbestos, mold and radon.
+ 
+“Health Care Permits” means any and all licenses, Permits, certifications,
+authorizations, approvals, franchises, registrations, accreditations, letters of
+non-reviewability, certificates of need, consents, supplier or provider numbers,
+qualifications, operating authority, and/or any other Permit or permission which
+is material to or legally required for the operation of the business of the
+Company as currently conducted or in connection with the Company’s ability to
+own, lease, operate or manage any of its property or the business, in each case
+that are issued or enforced by a Governmental Entity with jurisdiction over any
+Health Regulatory Law.
+ 
+80
+
+--------------------------------------------------------------------------------
+
+“Health Regulatory Laws” means any Law relating to healthcare, health insurance
+or related regulatory matters, including, to the extent applicable, (i) the
+Federal anti-kickback Law (42 U.S.C. § 1320a-7b); (ii) Title XVIII of the Social
+Security Act, 42 U.S.C. §§ 1395-1395lll (the Medicare Act), including but not
+limited to the Stark I, II and III Laws (42 U.S.C. § 1395nn); (iii) Title XIX of
+the Social Security Act, 42 U.S.C. §§ 1396-1396w-5 (the Medicaid Act); (iv) the
+Federal False Claims Act (31 U.S.C. §§ 3729, et seq.); (v) the Federal Civil
+Monetary Penalties Law (42 U.S.C. § 1320a-7a); (vi) the Federal Program Fraud
+Civil Remedies Act (31 U.S.C. § 3801 et seq.) and the Federal Health Care Fraud
+Law (18 U.S.C. § 1347); (vii) the Consolidated Omnibus Budget Reconciliation Act
+of 1985, as amended; (viii) any state or federal Laws governing the privacy,
+security, transmission or protection of health care information belonging to
+individuals or entities, including HIPAA; (ix) the Patient Protection and
+Affordable Care Act and the Health Care and Education Reconciliation Act of
+2010; (x) the Travel Act (18 U.S.C. § 1952); (xi) state Law regulating
+insurance; (xii) state Law regulating consumer protection or unfair trade
+practices; (xiii) state Law regulating third party administrators, insurance
+brokers, and agents; and (xiv) any federal, state or local Law relevant to false
+statements or claims including: (A) making or causing to be made a false
+statement or representation of a material fact to any Governmental Entity; or
+(B) knowingly and willfully making or causing to be made any false statement or
+representation of a material fact for use in determining rights to any benefit,
+payment or permit; in each case, as amended, and all regulations and guidance
+promulgated pursuant thereto.
+ 
+“Indebtedness” means, with respect to any Person, without duplication, all
+obligations or undertakings by such Person as of the date of determination (i)
+for borrowed money (including deposits or advances of any kind to such Person),
+(ii) evidenced by bonds, debentures, notes, or similar instruments or debt
+securities, (iii) for capitalized leases or to pay the deferred and unpaid
+purchase price of property or equipment, (iv) pursuant to securitization or
+factoring programs or arrangements, (v) pursuant to guarantees and arrangements
+having the economic effect of a guarantee of any Indebtedness of any other
+Person (other than between or among any of Parent and its wholly owned
+Subsidiaries or between or among the Company and its wholly owned Subsidiaries,
+as applicable), (vi) net cash payment obligations of such Person under swaps,
+options, derivatives and other hedging Contracts or other similar transaction or
+arrangements, (vii) letters of credit, bank guarantees, and other similar
+Contracts or arrangements entered into by or on behalf of such Person other than
+undrawn letters of credit or (viii) all indebtedness of others guaranteed or
+secured by any Lien on the assets of such Person.
+ 
+“Intellectual Property” means all intellectual or proprietary rights existing in
+any jurisdiction throughout the world, including all (i) patents, patent
+applications and statutory invention registrations, (ii) trademarks, trade
+dress, logos, brands, service marks, and all other indicia of source or origin,
+together with all applications or registrations for any of the foregoing all
+associated goodwill for any of the foregoing, (iii) Internet domain names,
+usernames, and social media accounts, (iv) copyrights, copyrightable works, and
+all works of authorship, (v) software (including object code and source code)
+and all rights therein or thereto, (vi) data, databases, data repositories, and
+other collections of data, and (vii) trade secrets and other confidential and
+proprietary information, including inventions (whether or not patentable or
+reduced to practice), ideas, know-how, processes, methods, techniques, research
+and development, source code, drawings, specifications, layouts, designs,
+formulae, algorithms, and technical data.
+ 
+81
+
+--------------------------------------------------------------------------------
+
+“Knowledge of the Company” means the actual knowledge of the individuals
+identified on Section 9.14(a) of the Company Disclosure Letter.
+ 
+“Knowledge of Parent” means the actual knowledge of the individuals identified
+on Section 9.14(a) of the Parent Disclosure Letter.
+ 
+“Law” means any federal, state, local, foreign, national, transnational law or
+municipal law, Order, act, code, statute or ordinance, common law, order,
+decree, injunction or any rule or regulation, constitutions, treaties,
+conventions, codes, act, measures and rules in each case, enacted, adopted,
+promulgated or applied by a Governmental Entity.
+ 
+“Lien” means any lien, charge, pledge, security interest, license, easement,
+mortgage, claim or other encumbrance or similar restriction.
+ 
+“Nasdaq” means the Nasdaq Stock Market.
+ 
+“Open Source Software” means any software that is subject to a license or other
+agreement commonly referred to as an open source, free software, copyleft or
+community source code license (including any code or library licensed under the
+GNU General Public License, GNU Lesser General Public License, BSD License,
+Apache Software License, or any other public source code license arrangement),
+including any license defined as an open source license by the Open Source
+Initiative as set forth on www.opensource.org.
+ 
+“Operating Agreement” means the Third Amended and Restated Limited Liability
+Company Agreement of Health Plan Intermediaries Holdings, LLC, dated as of
+February 13, 2013, by and among the Company, Health Plan Intermediaries, LLC and
+Health Plan Intermediaries Sub, LLC.
+ 
+“Parent Material Adverse Effect” means any Change that, individually or in the
+aggregate, prevents or materially impairs the ability of Parent or Merger Sub to
+consummate the Offer, the Merger and the other transactions contemplated hereby
+when required pursuant to Section 1.1(g) and Section 1.3.
+ 
+
+
+“Permitted Liens” means (i) Liens for Taxes not yet delinquent and payable or
+that are being contested in good faith and for which appropriate reserves have
+been established in accordance with GAAP, (ii) Liens arising in the ordinary
+course of business in favor of vendors, carriers, warehousemen, repairmen,
+mechanics, workmen, materialmen, construction or similar Liens in the ordinary
+course of business and for amounts which are not yet due and payable or are in
+the process of being paid, (iii) Liens of record attaching to real property,
+fixtures or leasehold improvements that would not, individually or in the
+aggregate, reasonably be expected to materially impair the continued use and
+operation of the assets to which they relate in the business of such entity and
+its Subsidiaries as presently conducted, (iv) Liens that will be discharged and
+released at or prior to the Closing granted pursuant to the Existing Credit
+Facility or reflected in the Company’s consolidated balance sheet as of March
+31, 2020 and December 31, 2019 and the notes thereto set forth in the Company’s
+quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2020, (v)
+Liens, exceptions, defects or irregularities in title, easements, imperfections
+of title, claims, charges, security interests, rights-of-way, covenants,
+restrictions, and other similar matters affecting real property that would not,
+individually or in the aggregate, reasonably be expected to materially impair
+the continued use and operation of the real property to which they relate in the
+business of such entity and its Subsidiaries as presently conducted and (vi) any
+non-exclusive license, covenant or other right to or under Intellectual Property
+granted in the ordinary course of business.
+ 
+82
+
+--------------------------------------------------------------------------------
+
+“Person” means any individual, corporation (including not-for-profit), general
+or limited partnership, limited liability company, joint venture, estate, trust,
+association, organization, Governmental Entity or other entity of any kind or
+nature.
+ 
+“Personal Data” means any information in any media that identifies or is capable
+of identifying a particular individual and any other data or information that
+constitutes personal data or personal information under any applicable Law or
+the Company’s or any of its Subsidiaries’ privacy policies.
+ 
+“Proceeding” means any civil, criminal or administrative actions, suits, claims,
+charges, hearings, arbitrations, investigations, audit, inquiry or other
+proceeding before a Governmental Entity.
+ 
+“Subsidiary” means, with respect to any Person, any other Person of which at
+least a majority of the securities or ownership interests having by their terms
+ordinary voting power to elect a majority of the board of directors or other
+persons performing similar functions is directly or indirectly owned or
+controlled by such Person and/or by one or more of its other Subsidiaries.
+ 
+“Tax” (including, with correlative meanings, the terms “Taxes” and “Taxable”)
+means all federal, state, local and foreign taxes, duties or assessments
+(however denominated) in the nature of a tax, including all net income, gross
+receipts, alternative or add-on minimum tax, capital, sales, use, ad valorem,
+value added, transfer, franchise, profits, gains, registration, inventory,
+capital stock, license, withholding, payroll, employment, social security (or
+similar), pension, unemployment, excise, severance, stamp, occupation, property
+and estimated taxes, and customs duties, in each case that is imposed by a
+Governmental Entity, together with all interest, penalties and additions imposed
+with respect to any of the foregoing, whether disputed or not.
+ 
+“Tax Receivable Agreement” means the Tax Receivable Agreement, dated as of
+February 13, 2013, by and among the Company, Holdings and the holders of Series
+B Units identified therein.
+ 
+“Tax Return” means all returns, statements, and reports (including elections,
+declarations, disclosures, schedules, estimates and information returns) filed
+or required to be filed with any Governmental Entity relating to Taxes,
+including any amendment thereof.
+ 
+“Transaction Documents” means this Agreement, the Exchange Agreement, the TRA
+Termination Agreement, the Support Agreements, the Certificate of Merger and any
+other certificate or instrument to be delivered hereunder or thereunder.
+ 
+83
+
+--------------------------------------------------------------------------------
+
+“Willful Breach” means any (i) breach by a party of any of its obligations under
+this Agreement that is a consequence of an act or omission knowingly undertaken
+or omitted by the breaching party with the knowledge that such act or failure to
+act would, or would reasonably be expected to, result in or cause a breach of
+this Agreement (regardless of whether breaching was the object of the act or
+omission) or (ii) subject to the satisfaction or waiver (by the party for whom
+such condition may be waived) of the conditions to Closing set forth in Article
+VII (including each of the conditions set forth in Annex I, but other than those
+conditions that by their terms are to be satisfied at Closing, provided that
+those conditions would have been satisfied if the Closing were to occur on such
+date), the willful or intentional failure of the breaching party to consummate
+the Offer in accordance with Section 1.1(g), the Merger in accordance with
+Section 1.4 and the other transactions contemplated to be consummated at the
+Closing when required by, and on the terms and conditions set forth in, this
+Agreement.
+ 
+[The remainder of this page is intentionally left blank.]
+ 
+84
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
+duly authorized officers of the parties hereto as of the date first written
+above.
+ 
+ 
+BENEFYTT TECHNOLOGIES, INC.
+ 
+ 
+ 
+  By:
+/s/ Gavin Southwell
+    Name: Gavin Southwell
+
+ 
+ 
+Title: President and Chief Executive Officer
+
+
+
+
+[Signature Page to Agreement and Plan of Merger]
+
+
+
+--------------------------------------------------------------------------------
+
+ 
+DAYLIGHT BETA PARENT CORP.
+ 
+ 
+ 
+  By:
+/s/ Vahe Dombalagian
+    Name: Vahe Dombalagian
+
+ 
+ 
+Title: Managing Director
+       
+DAYLIGHT BETA CORP.
+      By:
+/s/ Vahe Dombalagian
+    Name: Vahe Dombalagian
+    Title: Managing Director
+
+
+
+
+[Signature Page to Agreement and Plan of Merger]
+
+
+
+--------------------------------------------------------------------------------
+
+ANNEX I - CONDITIONS TO THE OFFER
+ 
+Capitalized terms used in this Annex I but not defined herein have the meanings
+assigned to such terms in the Agreement and Plan of Merger (the “Agreement”) of
+which this Annex I is a part.
+ 
+Notwithstanding any other term of the Offer or the Agreement to the contrary,
+Merger Sub shall not be required to accept for payment or, subject to any
+applicable rules and regulations of the SEC (including Rule 14e-l(c) under the
+Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered
+Class A Shares promptly after the termination or withdrawal of the Offer)), to
+pay for any Shares tendered pursuant to the Offer: (i) if the Agreement has been
+terminated in accordance with Article VIII of the Agreement; or (ii) at any
+scheduled Expiration Date (as it may have been extended pursuant to Section
+1.1(d) of the Agreement), if (x) the condition in clause (a) below has not been
+satisfied by one minute after 11:59 p.m., New York City time, on the Expiration
+Date or (y) any of the conditions set forth in clauses (b) through (i) below
+shall not be satisfied or waived in writing by Parent
+ 
+(a)          the number of Shares validly tendered and, “received” by the
+“depositary” (as such terms are defined in Section 251(h) of the DGCL) and not
+validly withdrawn (excluding, for clarity, Class A Shares tendered pursuant to
+guaranteed delivery procedures that have not yet been delivered in satisfaction
+of such guarantee in accordance with Section 251(h) of the DGCL), together with
+any Shares beneficially owned by Parent or any wholly-owned Subsidiary of
+Parent, equals at least one Share more than a majority of all issued and
+outstanding Shares as of the Expiration Time (the “Minimum Condition”);
+ 
+(b)        No Governmental Entity of competent jurisdiction shall have enacted,
+issued, promulgated, enforced or entered any Law or Order (whether temporary,
+preliminary or permanent) that is in effect and restrains, enjoins or otherwise
+prohibits consummation of the Transactions;
+ 
+(c)          The Parent Required Regulatory Law Filings and the Pre-Closing
+Company Required Regulatory Law Filings shall have been made;
+ 
+(d)          (i) The representations and warranties of the Company set forth in
+Sections 5.1(b)(i)-(iii) (Capital Structure) shall be true and correct, subject
+only to inaccuracies that would not increase the total of the aggregate Offer
+Price payable pursuant to Section 1.1, the aggregate Merger Consideration
+payable pursuant to Section 4.2 and the aggregate amounts payable to former
+holders of Company Equity Awards pursuant to Section 4.2 and Section 4.5
+(calculated assuming there are no Dissenting Shares) by more than three million
+Dollars ($3,000,000) relative to if such representations and warranties were
+true and correct in all respects, as of the date of the Agreement and at the
+Offer Acceptance Time (in each case except to the extent that any such
+representation and warranty speaks as of a particular date, in which case such
+representation and warranty shall be true and correct as of such earlier date),
+(ii) the representations and warranties of the Company set forth in Section
+5.1(f)(i) (Absence of Certain Changes) shall be true and correct in all respects
+as of the date of the Agreement and at the Offer Acceptance Time, (iii) the
+representation and warranties of the Company set forth in Section 5.1(c)
+(Corporate Authority and Approval) and Section 5.1(t) (Brokers and Finders)
+shall be true and correct in all material respects as of the date of the
+Agreement and at the Offer Acceptance Time, (iv) the other representations and
+warranties of the Company set forth in Section 5.1 shall be true and correct as
+of the date of the Agreement and at the Offer Acceptance Time (except to the
+extent that any such representation and warranty speaks as of a particular date,
+in which case such representation and warranty shall be true and correct as of
+such earlier date), except where the failure of such representations and
+warranties of the Company to be so true and correct (read for purposes of clause
+(iii) and this clause (iv) without giving effect to any “materiality,” “Company
+Material Adverse Effect” or similar qualification therein), individually or in
+the aggregate, has not had and would not reasonably be expected to have a
+Company Material Adverse Effect and (v) Parent and Merger Sub shall have
+received a certificate of the Company, validly executed for and on behalf of the
+Company and in its name by a duly authorized executive officer thereof, to the
+foregoing effect.
+ 
+
+--------------------------------------------------------------------------------
+
+(e)          the Company shall have performed in all material respects all
+obligations required to be performed by it under the Agreement at or prior to
+the Offer Acceptance Time and shall not have failed to comply with any covenant
+or agreement of the Company hereunder at or prior to the Offer Acceptance Time,
+and Parent and Merger Sub shall have received a certificate of the Company,
+validly executed for and on behalf of the Company and in its name by a duly
+authorized executive officer thereof, to the foregoing effect;
+ 
+(f)          the waiting period applicable to the consummation of the
+Transactions under the HSR Act shall have expired or been earlier terminated;
+ 
+(g)          the Founder Exchange and Tender shall have occurred prior to the
+Expiration Date and no party (other than Parent) shall have breached in any
+material respect any of its obligations under, or terminated or repudiated, the
+Exchange Agreement;
+ 
+(h)          after the date of the Agreement, there shall not have occurred any
+Change that, individually or taken together with any other Changes, has had or
+would reasonably be expected to have a Company Material Adverse Effect; and
+ 
+(i)          the Agreement shall not have been terminated in accordance with its
+terms (the “Termination Condition”).
+ 
+The foregoing conditions are for the sole benefit of Parent and Merger Sub and
+(except for the Minimum Condition, which may be waived by Merger Sub only with
+the prior written consent of the Company, and the Termination Condition) may be
+waived by Parent and Merger Sub, in whole or in part at any time and from time
+to time, in the sole discretion of Parent and Merger Sub to the extent permitted
+by applicable Law.
+ 
+
+
+
+--------------------------------------------------------------------------------
+Exhibit 10.2
+
+EXECUTION COPY
+
+ 
+
+ 
+
+TERM LOAN AGREEMENT
+
+AMONG
+
+AMERICAN TOWER CORPORATION,
+
+AS BORROWER;
+
+TORONTO DOMINION (TEXAS) LLC
+
+AS ADMINISTRATIVE AGENT FOR THE LENDERS;
+
+AND
+
+THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR
+
+AS LENDERS ON THE SIGNATURE PAGES HEREOF;
+
+AND WITH
+
+MORGAN STANLEY MUFG LOAN PARTNERS, LLC
+
+AND
+
+THE BANK OF NOVA SCOTIA
+
+AS CO-SYNDICATION AGENTS;
+
+AND
+
+TD SECURITIES (USA) LLC
+
+COBANK, ACB
+
+and
+
+SANTANDER BANK, N.A.
+
+AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
+
+DATED AS OF APRIL 3, 2020
+
+ 
+
+ 
+
+
+
+--------------------------------------------------------------------------------
+
+Table of Contents
+
+ 
+
+         Page  
+
+ARTICLE 1 - DEFINITIONS
+
+     1  
+
+Section 1.1
+
+ 
+
+Definitions
+
+     1  
+
+Section 1.2
+
+ 
+
+Interpretation
+
+     18  
+
+Section 1.3
+
+ 
+
+Cross References
+
+     18  
+
+Section 1.4
+
+ 
+
+Accounting Provisions
+
+     18  
+
+Section 1.5
+
+ 
+
+Divisions
+
+     18  
+
+ARTICLE 2 - LOANS
+
+     19  
+
+Section 2.1
+
+ 
+
+The Term Loans
+
+     19  
+
+Section 2.2
+
+ 
+
+Manner of Advance and Disbursement
+
+     19  
+
+Section 2.3
+
+ 
+
+Interest
+
+     21  
+
+Section 2.4
+
+ 
+
+Fees
+
+     22  
+
+Section 2.5
+
+ 
+
+[Intentionally Omitted]
+
+     22  
+
+Section 2.6
+
+ 
+
+Prepayments and Repayments
+
+     22  
+
+Section 2.7
+
+ 
+
+Notes; Loan Accounts
+
+     22  
+
+Section 2.8
+
+ 
+
+Manner of Payment
+
+     23  
+
+Section 2.9
+
+ 
+
+Reimbursement
+
+     24  
+
+Section 2.10
+
+ 
+
+Pro Rata Treatment
+
+     24  
+
+Section 2.11
+
+ 
+
+Capital Adequacy
+
+     25  
+
+Section 2.12
+
+ 
+
+Lender Tax Forms
+
+     26  
+
+Section 2.13
+
+ 
+
+Incremental Term Loans
+
+     27  
+
+Section 2.14
+
+ 
+
+Defaulting Lender
+
+     28  
+
+ARTICLE 3 - CONDITIONS PRECEDENT
+
+     28  
+
+Section 3.1
+
+ 
+
+Conditions Precedent to Effectiveness of this Agreement
+
+     28  
+
+ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
+
+     29  
+
+Section 4.1
+
+ 
+
+Representations and Warranties
+
+     30  
+
+Section 4.2
+
+ 
+
+Survival of Representations and Warranties, Etc.
+
+     32  
+
+ARTICLE 5 - GENERAL COVENANTS
+
+     33  
+
+Section 5.1
+
+ 
+
+Preservation of Existence and Similar Matters
+
+     33  
+
+Section 5.2
+
+ 
+
+Compliance with Applicable Law
+
+     33  
+
+Section 5.3
+
+ 
+
+Maintenance of Properties
+
+     33  
+
+Section 5.4
+
+ 
+
+Accounting Methods and Financial Records
+
+     33  
+
+Section 5.5
+
+ 
+
+Insurance
+
+     33  
+
+Section 5.6
+
+ 
+
+Payment of Taxes and Claims
+
+     33  
+
+Section 5.7
+
+ 
+
+Visits and Inspections
+
+     34  
+
+Section 5.8
+
+ 
+
+Use of Proceeds
+
+     34  
+
+Section 5.9
+
+ 
+
+Maintenance of REIT Status
+
+     34  
+
+Section 5.10
+
+ 
+
+Senior Credit Facilities
+
+     34  
+
+ARTICLE 6 - INFORMATION COVENANTS
+
+     35  
+
+ 
+
+(i)
+
+
+
+--------------------------------------------------------------------------------
+
+Section 6.1
+
+ 
+
+Quarterly Financial Statements and Information
+
+     35  
+
+Section 6.2
+
+ 
+
+Annual Financial Statements and Information
+
+     35  
+
+Section 6.3
+
+ 
+
+Performance Certificates
+
+     36  
+
+Section 6.4
+
+ 
+
+Copies of Other Reports
+
+     36  
+
+Section 6.5
+
+ 
+
+Notice of Litigation and Other Matters
+
+     36  
+
+Section 6.6
+
+ 
+
+Certain Electronic Delivery; Public Information
+
+     37  
+
+Section 6.7
+
+ 
+
+Know Your Customer Information
+
+     38  
+
+Section 6.8
+
+ 
+
+Additional Requested Information
+
+     38  
+
+ARTICLE 7 - NEGATIVE COVENANTS
+
+     38  
+
+Section 7.1
+
+ 
+
+Indebtedness; Guaranties of the Borrower and its Subsidiaries
+
+     38  
+
+Section 7.2
+
+ 
+
+Limitation on Liens
+
+     40  
+
+Section 7.3
+
+ 
+
+Liquidation, Merger or Disposition of Assets
+
+     40  
+
+Section 7.4
+
+ 
+
+Restricted Payments
+
+     41  
+
+Section 7.5
+
+ 
+
+Senior Secured Leverage Ratio
+
+     42  
+
+Section 7.6
+
+ 
+
+Total Borrower Leverage Ratio
+
+     42  
+
+Section 7.7
+
+ 
+
+[Reserved]
+
+     42  
+
+Section 7.8
+
+ 
+
+Affiliate Transactions
+
+     42  
+
+Section 7.9
+
+ 
+
+Restrictive Agreements
+
+     42  
+
+Section 7.10
+
+ 
+
+Use of Proceeds
+
+     43  
+
+ARTICLE 8 - DEFAULT
+
+     43  
+
+Section 8.1
+
+ 
+
+Events of Default
+
+     43  
+
+Section 8.2
+
+ 
+
+Remedies
+
+     46  
+
+Section 8.3
+
+ 
+
+Payments Subsequent to Declaration of Event of Default
+
+     46  
+
+ARTICLE 9 - THE ADMINISTRATIVE AGENT
+
+     46  
+
+Section 9.1
+
+ 
+
+Appointment and Authorization
+
+     46  
+
+Section 9.2
+
+ 
+
+Rights as a Lender
+
+     47  
+
+Section 9.3
+
+ 
+
+Exculpatory Provisions
+
+     47  
+
+Section 9.4
+
+ 
+
+Reliance by Administrative Agent
+
+     48  
+
+Section 9.5
+
+ 
+
+Resignation of Administrative Agent
+
+     48  
+
+Section 9.6
+
+ 
+
+Non-Reliance on Administrative Agent and Other Lenders
+
+     49  
+
+Section 9.7
+
+ 
+
+Indemnification
+
+     49  
+
+Section 9.8
+
+ 
+
+No Responsibilities of the Agents
+
+     50  
+
+Section 9.9
+
+ 
+
+Lender ERISA Matters
+
+     50  
+
+ARTICLE 10 - CHANGES IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES AND INCREASED
+COSTS
+
+     50  
+
+Section 10.1
+
+ 
+
+LIBOR Basis Determination Inadequate or Unfair
+
+     50  
+
+Section 10.2
+
+ 
+
+Illegality
+
+     51  
+
+Section 10.3
+
+ 
+
+Increased Costs and Additional Amounts
+
+     52  
+
+Section 10.4
+
+ 
+
+Effect On Other Advances
+
+     54  
+
+Section 10.5
+
+ 
+
+Claims for Increased Costs and Taxes; Replacement Lenders
+
+     55  
+
+ARTICLE 11 - MISCELLANEOUS
+
+     55  
+
+Section 11.1
+
+ 
+
+Notices
+
+     55  
+
+ 
+
+(ii)
+
+
+
+--------------------------------------------------------------------------------
+
+Section 11.2
+
+ 
+
+Expenses
+
+     57  
+
+Section 11.3
+
+ 
+
+Waivers
+
+     57  
+
+Section 11.4
+
+ 
+
+Assignment and Participation
+
+     58  
+
+Section 11.5
+
+ 
+
+Indemnity
+
+     62  
+
+Section 11.6
+
+ 
+
+Counterparts
+
+     63  
+
+Section 11.7
+
+ 
+
+Governing Law; Jurisdiction
+
+     63  
+
+Section 11.8
+
+ 
+
+Severability
+
+     64  
+
+Section 11.9
+
+ 
+
+Interest
+
+     64  
+
+Section 11.10
+
+ 
+
+Table of Contents and Headings
+
+     64  
+
+Section 11.11
+
+ 
+
+Amendment and Waiver
+
+     65  
+
+Section 11.12
+
+ 
+
+Entire Agreement
+
+     66  
+
+Section 11.13
+
+ 
+
+Other Relationships; No Fiduciary Relationships
+
+     66  
+
+Section 11.14
+
+ 
+
+Directly or Indirectly
+
+     66  
+
+Section 11.15
+
+ 
+
+Reliance on and Survival of Various Provisions
+
+     66  
+
+Section 11.16
+
+ 
+
+Senior Debt
+
+     67  
+
+Section 11.17
+
+ 
+
+Obligations
+
+     67  
+
+Section 11.18
+
+ 
+
+Confidentiality
+
+     67  
+
+Section 11.19
+
+ 
+
+USA PATRIOT ACT Notice
+
+     67  
+
+Section 11.20
+
+ 
+
+Acknowledgement and Consent to Bail-In of Affected Financial Institutions
+
+     68  
+
+Section 11.21
+
+ 
+
+Right of Set-off
+
+     68  
+
+ARTICLE 12 - WAIVER OF JURY TRIAL
+
+     69  
+
+Section 12.1
+
+ 
+
+Waiver of Jury Trial
+
+     69  
+
+SCHEDULES
+
+ 
+
+Schedule 1    Commitments Schedule 2    Existing ABS Facilities Schedule 3   
+Subsidiaries on the Agreement Date Schedule 4    Administrative Agent’s Office,
+Certain Notice Addresses
+
+EXHIBITS
+
+ 
+
+Exhibit A    Form of Request for Advance Exhibit B    [Reserved] Exhibit C   
+Form of Note Exhibit D    Form of Loan Certificate Exhibit E    Form of
+Performance Certificate Exhibit F    Form of Assignment and Assumption
+
+ 
+
+(iii)
+
+
+
+--------------------------------------------------------------------------------
+
+TERM LOAN AGREEMENT
+
+This Term Loan Agreement is made as of April 3, 2020, by and among AMERICAN
+TOWER CORPORATION, a Delaware corporation, as Borrower, TORONTO DOMINION (TEXAS)
+LLC, as Administrative Agent, and the financial institutions whose names appear
+as lenders on the signature page hereof (together with any permitted successors
+and assigns of the foregoing).
+
+NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
+of which are hereby acknowledged by each of the parties hereto, the parties
+hereby agree as follows:
+
+ARTICLE 1 - DEFINITIONS
+
+Section 1.1 Definitions. For the purposes of this Agreement:
+
+“ABS Facility” shall mean one or more secured loans, borrowings or facilities
+that may be included in a commercial real estate securitization transaction.
+
+“Acquisition” shall mean (whether by purchase, lease, exchange, issuance of
+stock or other equity or debt securities, merger, reorganization or any other
+method) (i) any acquisition by the Borrower or any of its Subsidiaries of any
+Person that is not a Subsidiary of the Borrower, which Person shall then become
+consolidated with the Borrower or such Subsidiary in accordance with GAAP;
+(ii) any acquisition by the Borrower or any of its Subsidiaries of all or any
+substantial part of the assets of any Person that is not a Subsidiary of the
+Borrower; (iii) any acquisition by the Borrower or any of its Subsidiaries of
+any business (or related contracts) primarily engaged in the tower, tower
+management or related businesses; or (iv) any acquisition by the Borrower or any
+of its Subsidiaries of any communications towers or communications tower sites.
+
+“Adjusted EBITDA” shall mean, for the twelve (12) month period preceding the
+calculation date, for any Person, the sum of (a) Net Income, plus (b) to the
+extent deducted in determining Net Income, the sum, without duplication, of such
+Person’s (i) Interest Expense, (ii) income tax expense, including, without
+limitation, taxes paid or accrued based on income, profits or capital, including
+state, franchise and similar taxes and foreign withholding taxes,
+(iii) depreciation and amortization (including, without limitation, amortization
+of goodwill and other intangible assets), (iv) extraordinary losses and
+non-recurring non-cash charges and expenses, (v) all other non-cash charges,
+expenses and interest (including, without limitation, any non-cash losses in
+respect of Hedge Agreements, non-cash impairment charges, non-cash valuation
+charges for stock option grants or vesting of restricted stock awards or any
+other non-cash compensation charges, and losses from the early extinguishment of
+Indebtedness), (vi) non-recurring integration costs and expenses resulting from
+operational changes and improvements (including, without limitation, severance
+costs and business optimization expenses) and (vii) non-recurring charges and
+expenses, restructuring charges, transaction expenses (including, without
+limitation, transaction expenses incurred in connection with any merger or
+acquisition) and underwriters’ fees, and severance and retention payments in
+connection with any merger or acquisition, in each case for such period, less
+extraordinary gains and cash payments (not
+
+ 
+
+-1-
+
+
+
+--------------------------------------------------------------------------------
+
+otherwise deducted in determining Net Income) made during such period with
+respect to non-cash charges that were added back in a prior period; provided,
+however, (A) with respect to any Person that became a Subsidiary of the
+Borrower, or was merged with or consolidated into the Borrower or any of its
+Subsidiaries, during such period, or any acquisition by the Borrower or any of
+its Subsidiaries of the assets of any Person during such period, “Adjusted
+EBITDA” shall, at the option of the Borrower in respect of any or all of the
+foregoing, also include the Adjusted EBITDA of such Person or attributable to
+such assets, as applicable, during such period as if such acquisition, merger or
+consolidation, including any concurrent transaction entered into by such Person
+or with respect to such assets as part of such acquisition, merger or
+consolidation, had occurred on the first day of such period and (B) with respect
+to any Person that has ceased to be a Subsidiary of the Borrower during such
+period, or any material assets of the Borrower or any of its Subsidiaries sold
+or otherwise disposed of by the Borrower or any of its Subsidiaries during such
+period, “Adjusted EBITDA” shall exclude the Adjusted EBITDA of such Person or
+attributable to such assets, as applicable, during such period as if such sale
+or disposition of such Subsidiary or such assets had occurred on the first day
+of such period.
+
+“Administrative Agent” shall mean Toronto Dominion (Texas) LLC, in its capacity
+as Administrative Agent for the Lenders, or any successor Administrative Agent
+appointed pursuant to Section 9.5 hereof.
+
+“Administrative Agent’s Office” shall mean the Administrative Agent’s address
+and, as appropriate, account as set forth on Schedule 4, or such other address
+or account as may be designated pursuant to the provisions of Section 11.1
+hereof.
+
+“Advance” shall mean, initially, the borrowing consisting of simultaneous Loans
+by the Lenders. After the Loans are outstanding, “Advance” shall mean the
+aggregate amounts advanced by the Lenders to the Borrower pursuant to Article 2
+hereof and having the same Interest Rate Basis and Interest Period; and
+“Advances” shall mean more than one Advance.
+
+“Affected Financial Institution” means (a) any EEA Financial Institution or
+(b) any UK Financial Institution.
+
+“Affected Lender” shall have the meaning ascribed thereto in Section 10.5
+hereof.
+
+“Affiliate” shall mean, with respect to a Person, any other Person directly or
+indirectly controlling, controlled by, or under common control with, such first
+Person. For purposes of this definition, “control,” when used with respect to
+any Person, means the power to direct or cause the direction of the management
+and policies of such Person whether by contract or otherwise.
+
+“Agreement” shall mean this Term Loan Agreement, as amended, supplemented,
+restated or otherwise modified in writing from time to time.
+
+“Agreement Date” shall mean April 3, 2020.
+
+“Anti-Corruption Laws” means all laws, rules, and regulations of any
+jurisdiction applicable to the Borrower or its Subsidiaries from time to time
+concerning or relating to money laundering, bribery or corruption.
+
+ 
+
+-2-
+
+
+
+--------------------------------------------------------------------------------
+
+“Applicable Law” shall mean, in respect of any Person, all provisions of
+constitutions, statutes, treaties, rules, regulations and orders of governmental
+bodies or regulatory agencies applicable to such Person, including, without
+limiting the foregoing, the Licenses, the Communications Act, zoning ordinances
+and all environmental laws, and all orders, decisions, judgments and decrees of
+all courts and arbitrators in proceedings or actions to which the Person in
+question is a party or by which it is bound.
+
+“Applicable Margin” shall mean the interest rate margin applicable to Base Rate
+Advances and LIBOR Advances, as the case may be, in each case determined in
+accordance with Section 2.3(f) hereof.
+
+“Assignment and Assumption” shall mean an Assignment and Assumption agreement
+substantially in the form of Exhibit F attached hereto.
+
+“Attributable Debt” in respect of any Sale and Leaseback Transaction shall mean,
+at the time of determination, the present value of the obligation of the lessee
+for net rental payments during the remaining term of the lease included in such
+Sale and Leaseback Transaction (including any period for which such lease has
+been extended or may, at the option of the lessor, be extended). Such present
+value shall be calculated using a discount rate equal to the rate of interest
+implicit in such transaction, determined in accordance with GAAP.
+
+“Authorized Signatory” shall mean such senior personnel of a Person as may be
+duly authorized and designated in writing by such Person to execute documents,
+agreements and instruments on behalf of such Person.
+
+“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by
+the applicable Resolution Authority in respect of any liability of an Affected
+Financial Institution.
+
+“Bail-In Legislation” means (a) with respect to any EEA Member Country
+implementing Article 55 of Directive 2014/59/EU of the European Parliament and
+of the Council of the European Union, the implementing law, regulation rule or
+requirement for such EEA Member Country from time to time which is described in
+the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,
+Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and
+any other law, regulation or rule applicable in the United Kingdom relating to
+the resolution of unsound or failing banks, investment firms or other financial
+institutions or their affiliates (other than through liquidation, administration
+or other insolvency proceedings).
+
+“Base Rate” shall mean for any day a fluctuating rate per annum equal to the
+higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
+in effect for such day as publicly announced from time to time by Toronto
+Dominion as its “prime rate.” The “prime rate” is a rate set by Toronto Dominion
+based upon various factors including Toronto Dominion 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 Toronto Dominion shall take
+effect at the opening of business on the day specified in the public
+announcement of such change.
+
+ 
+
+-3-
+
+
+
+--------------------------------------------------------------------------------
+
+“Base Rate Advance” shall mean an Advance which the Borrower requests to be made
+as a Base Rate Advance or is Converted to a Base Rate Advance, in accordance
+with the provisions of Section 2.2 hereof, and which shall be in a principal
+amount of at least $1,000,000.00 and in an integral multiple of $500,000.00.
+
+“Base Rate Basis” shall mean a simple interest rate equal to the sum of (i) the
+Base Rate and (ii) the Applicable Margin applicable to Base Rate Advances for
+the applicable Loans. The Base Rate Basis shall be adjusted automatically as of
+the opening of business on the effective date of each change in the Base Rate to
+account for such change, and shall also be adjusted to reflect changes of the
+Applicable Margin applicable to Base Rate Advances.
+
+“Beneficial Ownership Certification” shall mean a certification regarding
+beneficial ownership or control as required by the Beneficial Ownership
+Regulation.
+
+“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
+
+“Borrower” shall mean American Tower Corporation, a Delaware corporation.
+
+“Borrower Materials” shall have the meaning ascribed thereto in Section 6.6
+hereof.
+
+“Business Day” shall mean any day other than a Saturday, Sunday or other day on
+which commercial banks are authorized to close under the laws of, or are in fact
+closed in, the State of New York and, if such day relates to any Eurodollar Rate
+Loan, Business Day also means any such day that is also a London Banking Day.
+
+“Capitalized Lease Obligation” shall mean that portion of any obligation of a
+Person as lessee under a lease which at the time would be required to be
+capitalized on the balance sheet of such lessee in accordance with GAAP.
+
+“Cash Equivalents” shall mean ‘cash equivalents’ as defined under and determined
+in accordance with generally accepted accounting principles.
+
+“Change of Control” shall mean (a) the acquisition, directly or indirectly, by
+any Person or group (as such term is used in Section 13(d)(3) of the Exchange
+Act) of more than fifty percent (50%) of the voting power of the voting stock of
+either the Borrower (if the Borrower is not a Subsidiary of any Person) or of
+the ultimate parent entity of which the Borrower is a Subsidiary (if the
+Borrower is a Subsidiary of any Person), as the case may be, by way of merger or
+consolidation or otherwise, or (b) a change shall occur in a majority of the
+members of the Borrower’s board of directors (including the Chairman and
+President) within a year-long period such that such majority shall no longer
+consist of Continuing Directors.
+
+“Co-Syndication Agents” shall mean Morgan Stanley MUFG Loan Partners, LLC and
+The Bank of Nova Scotia.
+
+“Code” shall mean the Internal Revenue Code of 1986, as amended from time to
+time.
+
+“Commitments” shall mean, the Term Loan Commitments and the Incremental Term
+Loan Commitments.
+
+ 
+
+-4-
+
+
+
+--------------------------------------------------------------------------------
+
+“Communications Act” shall mean the Communications Act of 1934, and any similar
+or successor Federal statute, and the rules and regulations of the FCC or other
+similar or successor agency thereunder, all as the same may be in effect from
+time to time.
+
+“Consolidated Total Assets” shall mean as of any date the total assets of the
+Borrower and its Subsidiaries on a consolidated basis shown on the consolidated
+balance sheet of the Borrower and its Subsidiaries as of such date and
+determined in accordance with GAAP.
+
+“Continue”, “Continuation”, “Continuing” and “Continued” shall mean the
+continuation pursuant to Article 2 hereof of a LIBOR Advance as a LIBOR Advance
+from one Interest Period to a different Interest Period.
+
+“Continuing Director” means a director who either (a) was a member of the
+Borrower’s board of directors on the date of this Agreement, (b) becomes a
+member of the Borrower’s board of directors subsequent to the date of this
+Agreement and whose appointment, election or nomination for election by the
+Borrower’s stockholders is duly approved by a majority of the directors referred
+to in clause (a) above constituting at the time of such appointment, election or
+nomination at least a majority of that board, or (c) becomes a member of the
+Borrower’s board of directors subsequent to the date of this Agreement and whose
+appointment, election or nomination for election by the Borrower’s stockholders
+is duly approved by a majority of the directors referred to in clauses (a) and
+(b) above constituting at the time of such appointment, election or nomination
+at least a majority of that board.
+
+“Convert”, “Conversion” and “Converted” shall mean a conversion pursuant to
+Article 2 hereof of a LIBOR Advance into a Base Rate Advance or of a Base Rate
+Advance into a LIBOR Advance, as applicable.
+
+“Debt Rating” shall mean, as of any date, the senior unsecured debt rating of
+the Borrower that has been most recently announced by S&P, Moody’s or Fitch, as
+the case may be.
+
+“Default” shall mean any Event of Default, and any of the events specified in
+Section 8.1 hereof, regardless of whether there shall have occurred any passage
+of time or giving of notice, or both, that would be necessary in order to
+constitute such event an Event of Default.
+
+“Default Rate” shall mean a simple per annum interest rate equal to the sum of
+(a) the then applicable Interest Rate Basis (including the Applicable Margin),
+and (b) two percent (2.0%).
+
+“Defaulting Lender” means, subject to Section 2.14, any Lender that, as
+determined by the Administrative Agent, has, or has a direct or indirect parent
+company that has, (i) become the subject of a voluntary proceeding under any
+bankruptcy or other debtor relief law or has become the subject of a Bail-In
+Action, (ii) had a receiver, conservator, trustee, administrator, assignee for
+the benefit of creditors or similar Person charged with reorganization or
+liquidation of its business or a custodian appointed for it, or (iii) taken any
+action in furtherance of, or indicated its consent to, approval of or
+acquiescence in any voluntary or involuntary proceeding under any bankruptcy or
+other debtor relief law or any such appointment; provided that a Lender shall
+not be a Defaulting Lender solely by virtue of (1) the ownership or acquisition
+of any equity interest in that Lender or any direct or indirect parent company
+thereof by a governmental
+
+ 
+
+-5-
+
+
+
+--------------------------------------------------------------------------------
+
+authority or (2) in the case of a solvent Lender, the precautionary appointment
+of an administrator, guardian, custodian or other similar official by a
+governmental authority under or based on the law of the country where such
+Lender is subject to home jurisdiction supervision if applicable law requires
+that such appointment not be publicly disclosed, so long as, in the case of
+clause (1) and clause (2), such action 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 (i) through (iii) above shall be conclusive and binding
+absent manifest error, and such Lender shall be deemed to be a Defaulting Lender
+(subject to Section 2.14) upon delivery of written notice of such determination
+to the Borrower and each Lender.
+
+“Designated Person” means a person or entity (a) listed in the annex to, or
+otherwise subject to the provisions of, any Executive Order (as defined in the
+definition of “Sanctions Laws and Regulations”), (b) named as a “Specifically
+Designated National and Blocked Person” on the most current list published by
+the U.S. Department of the Treasury Office of Foreign Assets Control at its
+official website or any replacement website or other replacement official
+publication of such list (the “SDN List”), (c) any Person listed in any
+Sanctions-related list of designated Persons maintained by the United Nations
+Security Council, the European Union, the United Kingdom or any EU member state,
+(d) any Person operating, organized or resident in a Sanctioned Country or
+(e) in which an entity or person on the SDN List (or any combination of such
+entities or persons) has 50% or greater direct or indirect ownership interest or
+that is otherwise controlled, directly or indirectly, by an entity or person on
+the SDN List (or any combination of such entities or persons).
+
+“EEA Financial Institution” means (a) any credit institution or investment firm
+established in any EEA Member Country which is subject to the supervision of an
+EEA Resolution Authority, (b) any entity established in an EEA Member Country
+which is a parent of an institution described in clause (a) of this definition,
+or (c) any financial institution established in an EEA Member Country which is a
+subsidiary of an institution described in clauses (a) or (b) of this definition
+and is subject to consolidated supervision with its parent.
+
+“EEA Member Country” means any of the member states of the European Union,
+Iceland, Liechtenstein and Norway.
+
+“EEA Resolution Authority” means any public administrative authority or any
+Person entrusted with public administrative authority of any EEA Member Country
+(including any delegee) having responsibility for the resolution of any EEA
+Financial Institution.
+
+“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as in
+effect from time to time.
+
+“ERISA Affiliate” shall mean any Person, including a Subsidiary or an Affiliate
+of the Borrower, that is a member of any group of organizations of which the
+Borrower is a member and is treated as a single employer with the Borrower under
+Section 414 of the Code.
+
+ 
+
+-6-
+
+
+
+--------------------------------------------------------------------------------
+
+“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
+published by the Loan Market Association (or any successor Person), as in effect
+from time to time.
+
+“Eurodollar Rate” means, for any Interest Period with respect to a LIBOR
+Advance, the rate per annum equal to the ICE Benchmark Administration Settlement
+Rate (or, if the ICE Benchmark Administration is no longer making such a rate
+available, such other commercially available source providing quotations of
+LIBOR as reasonably selected by the Administrative Agent from time to time)
+(“LIBOR”), as published by Reuters (or such other commercially available source
+providing quotations of LIBOR 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 US Dollar deposits (for
+delivery on the first day of such Interest Period) with a term equivalent to
+such Interest Period; provided that if the Eurodollar Rate shall be less than
+zero, such rate shall be deemed to be zero for the purposes of this Agreement.
+
+“Eurodollar Reserve Percentage” shall mean the percentage which is in effect
+from time to time under Regulation D of the Board of Governors of the Federal
+Reserve System, as such regulation may be amended from time to time, as the
+maximum reserve requirement applicable with respect to Eurocurrency Liabilities
+(as that term is defined in Regulation D), whether or not any Lender has any
+such Eurocurrency Liabilities subject to such reserve requirement at that time.
+
+“Event of Default” shall mean any of the events specified in Section 8.1 hereof;
+provided, however, that any requirement stated therein for notice or lapse of
+time, or both, has been satisfied.
+
+“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
+
+“Existing ABS Facility” shall mean each mortgage loan facility existing on the
+Agreement Date and listed on Schedule 2.
+
+“Existing Credit Agreements” shall mean (i) the Amended and Restated
+Multicurrency Revolving Credit Agreement dated as of December 20, 2019, among
+the Borrower and certain agents and lenders from time to time party thereto,
+(ii) the Second Amended and Restated Revolving Credit Agreement dated as of
+December 20, 2019, among the Borrower and certain agents and lenders from time
+to time party thereto, (iii) the Amended and Restated Term Loan Agreement dated
+as of December 20, 2019, among the Borrower and certain agents and lenders from
+time to time party thereto and (iv) the Term Loan Agreement dated as of
+February 13, 2020 among the Borrower and certain agents and lenders from time to
+time party thereto.
+
+“FATCA” shall mean 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 and any fiscal or regulatory
+legislation, rules or practices adopted pursuant to any intergovernmental
+
+ 
+
+-7-
+
+
+
+--------------------------------------------------------------------------------
+
+agreement, treaty or convention among governmental authorities and implementing
+such Sections of the Code.
+
+“FCC” shall mean the Federal Communications Commission, or any other similar or
+successor agency of the Federal government administering the Communications Act.
+
+“Federal Funds Rate” shall mean, for any period, a fluctuating interest rate per
+annum equal for each day during such period to the rate published for such day
+(or, if such day is not a Business Day, for the next preceding Business Day) by
+the Federal Reserve Bank of New York for overnight Federal funds transactions
+with members of the Federal Reserve System, or, if such rate is not so published
+for any day that is a Business Day, the quotation for such day on such
+transactions received by the Administrative Agent from a Federal funds broker of
+recognized standing selected by it; provided that if the Federal Funds Rate
+shall be less than zero, such rate shall be deemed to be zero for the purposes
+of this Agreement.
+
+“Fitch” shall mean Fitch, Inc. (Fitch Ratings), and its successors.
+
+“Foreign Subsidiary” shall mean a Subsidiary whose place of registration,
+incorporation, organization or domicile is outside of the United States of
+America.
+
+“Funds From Operations” means net income (computed in accordance with GAAP),
+excluding gains (or losses) from sales of property and extraordinary and unusual
+items, plus depreciation, amortization and dividends declared on preferred
+stock, and after adjustments for unconsolidated minority interests, on a
+consolidated basis for the Borrower and its Subsidiaries.
+
+“GAAP” shall mean generally accepted accounting principles in the United States,
+consistently applied and as in effect on the date of this Agreement.
+
+“Granting Lender” shall have the meaning ascribed thereto in Section 11.4(f)
+hereof.
+
+“Guaranty”, as applied to an obligation, shall mean and include (a) a guaranty,
+direct or indirect, in any manner, of all or any part of such obligation, and
+(b) any agreement, direct or indirect, contingent or otherwise, the practical
+effect of which is to assure in any way the payment or performance (or payment
+of damages in the event of non-performance) of all or any part of such
+obligation, including, without limiting the foregoing, any reimbursement
+obligations as to amounts drawn down by beneficiaries of outstanding letters of
+credit or capital call requirements; provided, however, that the term “Guaranty”
+shall only include guarantees of Indebtedness.
+
+“Hedge Agreements” shall mean, with respect to any Person, any agreements or
+other arrangements to which such Person is a party relating to any rate swap
+transaction, basis swap, forward rate transaction, interest rate cap
+transaction, interest rate floor transaction, interest rate collar transaction,
+currency swap transaction, cross-currency rate swap transaction, or any other
+similar transaction, including an option to enter into any of the foregoing or
+any combination of the foregoing.
+
+“Incremental Term Loan” shall mean the amounts advanced by the Lenders with an
+Incremental Term Loan Commitment to the Borrower pursuant to this Agreement.
+
+ 
+
+-8-
+
+
+
+--------------------------------------------------------------------------------
+
+“Incremental Term Loan Commitment” shall have the meaning ascribed thereto in
+Section 2.13 hereof.
+
+“Indebtedness” shall mean, with respect to any Person and without duplication:
+
+(a) indebtedness for money borrowed of such Person and indebtedness of such
+Person evidenced by notes payable, bonds, debentures or other similar
+instruments or drafts accepted representing extensions of credit;
+
+(b) all indebtedness of such Person upon which interest charges are customarily
+paid (other than trade payables arising in the ordinary course of business, but
+only if and so long as such accounts are payable on customary trade terms);
+
+(c) all Capitalized Lease Obligations of such Person;
+
+(d) all reimbursement obligations of such Person with respect to outstanding
+letters of credit;
+
+(e) all indebtedness of such Person issued or assumed as full or partial payment
+for property or services (other than trade payables arising in the ordinary
+course of business, but only if and so long as such accounts are payable on
+customary trade terms);
+
+(f) all net obligations of such Person under Hedge Agreements valued on a marked
+to market basis on the date of determination;
+
+(g) all direct or indirect obligations of any other Person secured by any Lien
+to which any property or asset owned by such Person is subject, but only to the
+extent of the higher of the fair market value or the book value of the property
+or asset subject to such Lien (if less than the amount of such obligation), if
+the obligation secured thereby shall not have been assumed; and
+
+(h) Guaranties by such Person of any of the foregoing of any other Person.
+
+“Indemnitee” shall have the meaning ascribed thereto in Section 11.5 hereof.
+
+“Interest Expense” shall mean, for any Person and for any period, all cash
+interest expense (including imputed interest with respect to Capitalized Lease
+Obligations and commitment fees) with respect to any Indebtedness (including,
+without limitation, the Obligations) and Attributable Debt of such Person during
+such period pursuant to the terms of such Indebtedness.
+
+“Interest Period” shall mean (a) in connection with any Base Rate Advance, the
+period beginning on the date such Advance is made as or Converted to a Base Rate
+Advance and ending on the last day of the fiscal quarter in which such Advance
+is made as or Converted to a Base Rate Advance; provided, however, that if a
+Base Rate Advance is made or Converted on the last day of any fiscal quarter, it
+shall have an Interest Period ending on, and its Payment Date shall be, the last
+day of the following fiscal quarter, and (b) in connection with any LIBOR
+Advance, the term of such LIBOR Advance selected by the Borrower or otherwise
+determined in
+
+ 
+
+-9-
+
+
+
+--------------------------------------------------------------------------------
+
+accordance with this Agreement. Notwithstanding the foregoing, however, (i) any
+applicable Interest Period which would otherwise end on a day which is not a
+Business Day shall be extended to the next Business Day unless, with respect to
+LIBOR Advances with an Interest Period longer than one week only, such Business
+Day falls in another calendar month, in which case such Interest Period shall
+end on the next preceding Business Day, (ii) any applicable Interest Period,
+with respect to LIBOR Advances with an Interest Period longer than one week
+only, which begins on a day for which there is no numerically corresponding day
+in the calendar month during which such Interest Period is to end shall (subject
+to clause (i) above) end on the last day of such calendar month, and (iii) the
+Borrower shall not select an Interest Period with respect to any portion of the
+Loans which extends beyond the Term Loan Maturity Date or such earlier date as
+would interfere with the Borrower’s repayment obligations under Section 2.6
+hereof. Interest shall be due and payable with respect to any Advance as
+provided in Section 2.3 hereof.
+
+“Interest Rate Basis” shall mean the Base Rate Basis or the LIBOR Basis, as
+appropriate.
+
+“Investment” shall mean any investment or loan by the Borrower or any of its
+Subsidiaries in or to any Person which Person, after giving effect to such
+investment or loan, is not consolidated with the Borrower and its Subsidiaries
+in accordance with GAAP.
+
+“Joint Lead Arrangers” shall mean TD Securities (USA) LLC, CoBank, ACB and
+Santander Bank, N.A.
+
+“known to the Borrower”, “to the knowledge of the Borrower” or any similar
+phrase, shall mean known by, or reasonably should have been known by, the
+executive officers of the Borrower (which shall include, without limitation, the
+chief executive officer, the chief operating officer, if any, the chief
+financial officer and the general counsel of the Borrower).
+
+“Lenders” shall mean the Persons whose names appear as “Lenders” on the
+signature pages hereof, any other Person which becomes a “Lender” hereunder
+after the Agreement Date by executing an Assignment and Assumption substantially
+in the form of Exhibit F attached hereto in accordance with the provisions
+hereof; and “Lender” shall mean any one of the foregoing Lenders.
+
+“LIBOR Advance” shall mean an Advance which the Borrower requests to be made as,
+Converted to or Continued as a LIBOR Advance in accordance with the provisions
+of Section 2.2 hereof, and which shall be in a principal amount of at least
+$5,000,000.00 and in an integral multiple of $1,000,000.00.
+
+“LIBOR Basis” shall mean a simple per annum interest rate (rounded upward, if
+necessary, to the nearest one-hundredth (1/100th) of one percent (1%)) equal to
+the sum of (a) the quotient of (i) the Eurodollar Rate divided by (ii) one (1)
+minus the Eurodollar Reserve Percentage, if any, stated as a decimal, plus
+(b) the Applicable Margin. The LIBOR Basis shall apply to Interest Periods of
+one (1) week, one (1), two (2), three (3), or six (6) months, and, once
+determined, shall remain unchanged during the applicable Interest Period, except
+for changes to reflect adjustments in the Eurodollar Reserve Percentage. The
+LIBOR Basis for any LIBOR
+
+ 
+
+-10-
+
+
+
+--------------------------------------------------------------------------------
+
+Advance shall be adjusted as of the effective date of any change in the
+Eurodollar Reserve Percentage.
+
+“Licenses” shall mean, collectively, any telephone, microwave, radio
+transmissions, personal communications or other license, authorization,
+certificate of compliance, franchise, approval or permit, whether for the
+construction, the ownership or the operation of any communications tower
+facilities, granted or issued by the FCC and held by the Borrower or any of its
+Subsidiaries.
+
+“Lien” shall mean, with respect to any property, any mortgage, lien, pledge,
+charge, security interest, title retention agreement or other encumbrance of any
+kind in respect of such property.
+
+“Loan Documents” shall mean, collectively, this Agreement, the Notes, all fee
+letters, all Requests for Advance and all other certificates, documents,
+instruments and agreements executed or delivered by the Borrower in connection
+with or contemplated by this Agreement.
+
+“Loans” shall mean the Term Loans and the Incremental Term Loans.
+
+“London Banking Day” means any day on which dealings in US Dollar deposits are
+conducted by and between banks in the London interbank eurodollar market.
+
+“Majority Lenders” shall mean Lenders the total of whose Loans then outstanding,
+exceeds fifty percent (50%) of the sum of the aggregate Loans then outstanding;
+provided that the Commitment of, and the portion of the Loans then outstanding
+held or deemed held by, any Defaulting Lender shall be excluded for purposes of
+making a determination of Majority Lenders.
+
+“Material Subsidiary” shall mean any Subsidiary of the Borrower whose Adjusted
+EBITDA, as of the last day of any fiscal year, is greater than ten percent (10%)
+of the Adjusted EBITDA of the Borrower and its subsidiaries on a consolidated
+basis as of such date.
+
+“Material Subsidiary Group” shall mean one or more Subsidiaries of the Borrower
+when taken as a whole whose Adjusted EBITDA, as of the last day of any fiscal
+year, is greater than ten percent (10%) of the Adjusted EBITDA of the Borrower
+and its subsidiaries on a consolidated basis as of such date.
+
+“Materially Adverse Effect” shall mean (a) any material adverse effect upon the
+business, assets, liabilities, financial condition or results of operations of
+the Borrower and its Subsidiaries, taken as a whole, or (b) a material adverse
+effect upon any material rights or benefits of the Lenders or the Administrative
+Agent under the Loan Documents.
+
+“Moody’s” shall mean Moody’s Investor’s Service, Inc., and its successors.
+
+“Necessary Authorizations” shall mean all approvals and licenses from, and all
+filings and registrations with, any governmental or other regulatory authority,
+including, without limiting the foregoing, the Licenses and all approvals,
+licenses, filings and registrations under the Communications Act, necessary in
+order to enable the Borrower and its Subsidiaries to own,
+
+ 
+
+-11-
+
+
+
+--------------------------------------------------------------------------------
+
+construct, maintain, and operate communications tower facilities and to invest
+in other Persons who own, construct, maintain, manage and operate communications
+tower facilities.
+
+“Net Income” shall mean, for any Person and for any period of determination, net
+income of such Person determined in accordance with GAAP.
+
+“New Lender” shall have the meaning ascribed thereto in Section 2.13 hereof.
+
+“Non-Consenting Lender” shall have the meaning ascribed thereto in
+Section 11.11(b) hereof.
+
+“Non-Excluded Taxes” shall have the meaning ascribed thereto in Section 10.3(b)
+hereof.
+
+“Non-U.S. Person” shall mean a Person who is not a U.S. Person.
+
+“Notes” shall mean, collectively, those certain term loan promissory notes in an
+aggregate original principal amount of up to the Commitments, issued by the
+Borrower to the Lenders, each one substantially in the form of Exhibit C
+attached hereto, and any extensions, renewals or amendments to, or replacements
+of, the foregoing.
+
+“Obligations” shall mean all payment and performance obligations of every kind,
+nature and description of the Borrower to the Lenders or the Administrative
+Agent, or any of them, under this Agreement and the other Loan Documents
+(including, without limitation, any interest, fees and other charges on the
+Loans or otherwise under the Loan Documents that would accrue but for the filing
+of a bankruptcy action with respect to the Borrower, whether or not such claim
+is allowed in such bankruptcy action), as they may be amended from time to time,
+or as a result of making the Loans, whether such obligations are direct or
+indirect, absolute or contingent, due or not due, contractual or based in tort,
+liquidated or unliquidated, arising by operation of law or otherwise, now
+existing or hereafter arising.
+
+“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets
+Control.
+
+“Ownership Interests” shall mean, as applied to any Person, corporate stock and
+any and all securities, shares, partnership interests (whether general, limited,
+special or other), limited liability company interests, membership interests,
+equity interests, participations, rights or other equivalents (however
+designated and of any character) of corporate stock of such Person or any of the
+foregoing issued by such Person (whether a corporation, a partnership, a limited
+liability company or another type of entity) and includes, without limitation,
+securities convertible into Ownership Interests and rights, warrants or options
+to acquire Ownership Interests.
+
+“Payment Date” shall mean the last day of any Interest Period.
+
+“PBGC” shall mean the Pension Benefit Guaranty Corporation, or any successor
+thereto.
+
+“Permitted Liens” shall mean, collectively, as applied to any Person:
+
+ 
+
+-12-
+
+
+
+--------------------------------------------------------------------------------
+
+(a) (i) Liens on real estate or other property for taxes, assessments,
+governmental charges or levies not yet delinquent and (ii) Liens for taxes,
+assessments, judgments, governmental charges or levies or claims the non-payment
+of which is being diligently contested in good faith by appropriate proceedings
+and for which adequate reserves have been set aside on such Person’s books in
+accordance with GAAP;
+
+(b) Liens incurred in the ordinary course of the Borrower’s business (i) for
+sums not yet due or being diligently contested in good faith, or (ii) incidental
+to the ownership of its assets that, in each case, were not incurred in
+connection with the borrowing of money, such as Liens of carriers, warehousemen,
+mechanics, vendors (solely to the extent arising by operation of law), laborers
+and materialmen, in each case, if reserves in accordance with GAAP or
+appropriate provisions shall have been made therefor;
+
+(c) Liens incurred in the ordinary course of business in connection with
+worker’s compensation and unemployment insurance, social security obligations,
+assessments or government charges which are not overdue for more than sixty
+(60) days;
+
+(d) restrictions on the transfer of the Licenses or assets of the Borrower or
+any of its Subsidiaries imposed by any of the Licenses by the Communications Act
+and any regulations thereunder;
+
+(e) easements, rights-of-way, zoning restrictions, licenses, reservations or
+restrictions on use and other similar encumbrances on the use of real property
+which do not materially interfere with the ordinary conduct of the business of
+such Person or the use of such property in the operation of the business by such
+Person;
+
+(f) Liens arising by operation of law in favor of purchasers in connection with
+any asset sale permitted hereunder; provided, however, that such Lien only
+encumbers the property being sold;
+
+(g) Liens in respect of Capitalized Lease Obligations, so long as such Liens
+only attach to the assets leased thereunder, and Liens reflected by Uniform
+Commercial Code financing statements filed in respect of true leases or
+subleases of the Borrower or any of its Subsidiaries;
+
+(h) Liens to secure performance of statutory obligations, surety or appeal
+bonds, performance bonds, bids or tenders;
+
+(i) judgment Liens which do not result in an Event of Default under
+Section 8.1(h) hereof;
+
+(j) Liens in connection with escrow or security deposits made in connection with
+Acquisitions permitted hereunder;
+
+(k) Liens created on any Ownership Interests of Subsidiaries of the Borrower
+that are not Material Subsidiaries held by the Borrower or any of its
+Subsidiaries; provided, however, that such Lien is not securing Indebtedness of
+the Borrower or any of its U.S. Subsidiaries;
+
+ 
+
+-13-
+
+
+
+--------------------------------------------------------------------------------
+
+(l) Liens in favor of the Borrower or any of its Subsidiaries;
+
+(m) banker’s Liens, rights of set-off or similar rights and remedies as to
+deposit accounts or other funds maintained with a depositary institution;
+provided that such deposit account is not (i) a dedicated cash collateral
+account and is not subject to restrictions against access in excess of those set
+forth by regulations promulgated by the Federal Reserve Board or other
+Applicable Law; and (ii) intended to provide collateral to the depositary
+institution;
+
+(n) licenses, sublicenses, leases or subleases granted by the Borrower or any of
+its Subsidiaries to any other Person in the ordinary course of business;
+
+(o) Liens in the nature of trustees’ Liens granted pursuant to any indenture
+governing any Indebtedness permitted hereunder, in each case in favor of the
+trustee under such indenture and securing only obligations to pay compensation
+to such trustee, to reimburse its expenses and to indemnify it under the terms
+thereof;
+
+(p) Liens on property of the Borrower or any of its Subsidiaries at the time the
+Borrower or such Subsidiary acquired the property, including acquisition by
+means of a merger or consolidation with or into the Borrower or such Subsidiary,
+or an acquisition of assets; provided that such Liens (i) are not created,
+incurred or assumed in connection with or in contemplation of such acquisition
+and (ii) may not extend to any other property owned by the Borrower or such
+Subsidiary;
+
+(q) Liens on property or assets of any Foreign Subsidiary of the Borrower
+securing the Indebtedness of such Foreign Subsidiary; and
+
+(r) Liens securing obligations under Hedge Agreements in an aggregate amount of
+such obligations not to exceed $100,000,000 at any time outstanding.
+
+“Person” shall mean an individual, corporation, limited liability company,
+association, partnership, joint venture, trust or estate, an unincorporated
+organization, a government or any agency or political subdivision thereof, or
+any other entity.
+
+“Plan” shall mean an employee benefit plan within the meaning of Section 3(3) of
+ERISA or any other employee benefit plan maintained for employees of the
+Borrower or any of its Subsidiaries or ERISA Affiliates.
+
+“Platform” shall have the meaning ascribed thereto in Section 6.6 hereof.
+
+“Proposed Change” shall have the meaning ascribed thereto in Section 11.11(b)
+hereof.
+
+“Register” shall have the meaning ascribed thereto in Section 11.4(c) hereof.
+
+“REIT” shall mean a “real estate investment trust” as defined and taxed under
+Section 856-860 of the Code.
+
+ 
+
+-14-
+
+
+
+--------------------------------------------------------------------------------
+
+“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.
+
+“Replacement Lender” shall have the meaning ascribed thereto in Section 10.5
+hereof.
+
+“Request for Advance” shall mean a certificate designated as a “Request for
+Advance,” signed by an Authorized Signatory of the Borrower requesting the
+Advance to be made under Section 2.1, or a Continuation or Conversion hereunder,
+which shall be in substantially the form of Exhibit A attached hereto, and
+shall, among other things, (i) specify the date of the requested Advance,
+Continuation or Conversion (which shall be a Business Day), the amount of the
+Advance being made or being Continued or Converted, the type of Advance (LIBOR
+or Base Rate), and, with respect to a LIBOR Advance, the Interest Period with
+respect thereto, (ii) state that there shall not exist, on the date of the
+requested Advance, Continuation or Conversion and after giving effect thereto, a
+Default, (iii) designate the amount of the Commitments being drawn (if any), and
+(iv) designate the amount of the Loans being Continued or Converted.
+
+“Resolution Authority” means an EEA Resolution Authority or, with respect to any
+UK Financial Institution, a UK Resolution Authority.
+
+“Restricted Payment” shall mean any direct or indirect distribution, dividend or
+other payment to any Person (other than to the Borrower or any of its
+Subsidiaries) on account of any Ownership Interests of the Borrower or any of
+its Subsidiaries (other than dividends payable solely in Ownership Interests of
+such Person or in warrants or other rights or options to acquire such Ownership
+Interests).
+
+“S&P” shall mean S&P Global Ratings, and its successors.
+
+“Sale and Leaseback Transaction” shall mean any arrangement, directly or
+indirectly, with any third party whereby the Borrower or any of its Subsidiaries
+shall sell or transfer any property, real or personal, whether now owned or
+hereafter acquired, and whereby the Borrower or any of its Subsidiaries shall
+then or thereafter rent or lease as lessee such property or any part thereof or
+other property which the Borrower or any of its Subsidiaries intend to use for
+substantially the same purpose or purposes as the property sold or transferred,
+except for such arrangements for fair market value.
+
+“Sanctioned Country” means a country that is, or whose government is, the target
+or subject of a sanctions program identified on the list maintained by (a) OFAC
+and available at http://www.treas.gov/offices/enforcement/ofac/programs, or as
+otherwise published from time to time or (b) the United Nations Security
+Council, European Union or the United Kingdom.
+
+“Sanctions Laws and Regulations” means (i) any sanctions, prohibitions or
+requirements imposed by any executive order (an “Executive Order”) or by any
+sanctions program administered by the U.S. Department of the Treasury Office of
+Foreign Assets Control that apply to the Borrower; and (ii) any sanctions
+measures imposed by the United Nations Security Council, European Union or the
+United Kingdom that apply to the Borrower.
+
+ 
+
+-15-
+
+
+
+--------------------------------------------------------------------------------
+
+“Senior Secured Debt” shall mean, for the Borrower and its Subsidiaries on a
+consolidated basis as of any date, the aggregate amount of secured Indebtedness
+plus Attributable Debt of such Persons as of such date (including, without
+limitation, Indebtedness under any Existing ABS Facility and Indebtedness under
+any additional ABS Facilities entered into in accordance with Section 7.1(h)
+hereof).
+
+“SPC” shall have the meaning ascribed thereto in Section 11.4(f) hereof.
+
+“Subsidiary” shall mean, as applied to any Person, (a) any corporation,
+partnership or other entity of which no less than a majority of the Ownership
+Interests having ordinary voting power to elect a majority of its board of
+directors or other persons performing similar functions or such corporation,
+partnership or other entity, whether or not at the time any Ownership Interests
+of any other class or classes of such corporation, partnership or other entity
+shall or might have voting power by reason of the happening of any contingency,
+is at the time owned directly or indirectly by such Person, or by one or more
+Subsidiaries of such Person, or by such Person and one or more Subsidiaries of
+such Person; provided, however, that if such Person and/or such Person’s
+Subsidiaries directly or indirectly own less than a majority of such
+Subsidiary’s Ownership Interests, then such Subsidiary’s operating or governing
+documents must require (i) such Subsidiary’s net cash after the establishment of
+reserves be distributed to its equity holders no less frequently than quarterly
+and (ii) the consent of such Person and/or such Person’s Subsidiaries to amend
+or otherwise modify the provisions of such operating or governing documents
+requiring such distributions, or (b) any other entity which is directly or
+indirectly controlled or capable of being controlled by such Person, or by one
+or more Subsidiaries of such Person, or by such Person and one or more
+Subsidiaries of such Person. Notwithstanding the foregoing, no Unrestricted
+Subsidiary shall be deemed to be a Subsidiary of the Borrower or any of its
+Subsidiaries for the purposes of this Agreement or any other Loan Document.
+
+“Taxes” shall have the meaning assigned thereto in Section 10.3(b).
+
+“Term Loan Commitment” shall mean, as to each Lender its obligation to make a
+Term Loan to the Borrower pursuant to Section 2.1 in a principal amount not to
+exceed the Term Loan Commitment amount set forth (a) opposite such Lender’s name
+on Schedule 1 or (b) in the Assignment and Assumption pursuant to which such
+Lender becomes a party hereto, as applicable. The aggregate Term Loan
+Commitments on the Agreement Date are $1,140,000,000.
+
+“Term Loan Maturity Date” shall mean April 2, 2021, or such earlier date as
+payment of the Loans shall be due (whether by acceleration or otherwise).
+
+“Term Loans” shall mean, collectively, the amounts advanced by the Lenders with
+a Term Loan Commitment to the Borrower pursuant to this Agreement.
+
+“Toronto Dominion” shall mean Toronto Dominion (Texas) LLC or any of its
+affiliates that is a bank.
+
+“Total Debt” shall mean, for the Borrower and its Subsidiaries on a consolidated
+basis as of any date, (a) the sum (without duplication) of (i) the outstanding
+principal amount of the Loans as of such date, (ii) the aggregate amount of
+Indebtedness plus Attributable Debt of such
+
+ 
+
+-16-
+
+
+
+--------------------------------------------------------------------------------
+
+Persons as of such date, (iii) the aggregate amount of all Guaranties by such
+Persons of Indebtedness as of such date, and (iv) to the extent payable by the
+Borrower, an amount equal to the aggregate exposure of the Borrower under any
+Hedge Agreements permitted pursuant to Section 7.1 hereof, as calculated on a
+marked to market basis as of the last day of the fiscal quarter being tested or
+the last day of the most recently completed fiscal quarter, as applicable less
+(b) the sum of all unrestricted domestic cash and Cash Equivalents of the
+Borrower and its Subsidiaries as of such date.
+
+“UK Financial Institution” means any BRRD Undertaking (as such term is defined
+under the PRA Rulebook (as amended form time to time) promulgated by the United
+Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6
+of the FCA Handbook (as amended from time to time) promulgated by the United
+Kingdom Financial Conduct Authority, which includes certain credit institutions
+and investment firms, and certain affiliates of such credit institutions or
+investment firms.
+
+“UK Resolution Authority” means the Bank of England or any other public
+administrative authority having responsibility for the resolution of any UK
+Financial Institution.
+
+“U.S. Person” shall mean a citizen or resident of the United States of America,
+a corporation, partnership or other entity created or organized in or under any
+laws of the United States of America, or any estate or trust that is subject to
+Federal income taxation regardless of the source of its income.
+
+“U.S. Subsidiary” shall mean any Subsidiary that is not a Foreign Subsidiary.
+
+“Unrestricted Subsidiary” shall mean any Subsidiary of the Borrower that is
+hereafter designated by the Borrower as an Unrestricted Subsidiary by notice to
+the Administrative Agent and the Lenders; provided that (a) no Material
+Subsidiary shall be designated as an Unrestricted Subsidiary without the prior
+written consent of the Majority Lenders, (b) the aggregate Adjusted EBITDA of
+the Unrestricted Subsidiaries (without duplication) shall not exceed 20% of
+consolidated Adjusted EBITDA of the Borrower and its subsidiaries, and (c) no
+Subsidiary of the Borrower may be designated as an Unrestricted Subsidiary after
+the occurrence and during the continuance of a Default or an Event of Default;
+provided, further, that the designation by the Borrower of a Subsidiary as an
+Unrestricted Subsidiary may be revoked by the Borrower at any time by notice to
+the Administrative Agent and the Lenders so long as no Default would be caused
+thereby, from and after which time such Subsidiary will no longer be an
+Unrestricted Subsidiary.
+
+“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution
+Authority, the write-down and conversion powers of such EEA Resolution Authority
+from time to time under the Bail-In Legislation for the applicable EEA Member
+Country, which write-down and conversion powers are described in the EU Bail-In
+Legislation Schedule, and (b) with respect to the United Kingdom, any powers of
+the applicable Resolution Authority under the Bail-In Legislation to cancel,
+reduce, modify or change the form of a liability of any UK Financial Institution
+or any contract or instrument under which that liability arises, to convert all
+or part of that liability into shares, securities or obligations of that Person
+or any other Person, to provide that any such contract or instrument is to have
+effect as if a right had been exercised
+
+ 
+
+-17-
+
+
+
+--------------------------------------------------------------------------------
+
+under it or to suspend any obligation in respect of that liability or any of the
+powers under that Bail-In Legislation that are related to or ancillary to any of
+those powers.
+
+Section 1.2 Interpretation. Except where otherwise specifically restricted,
+reference to a party to this Agreement or any other Loan Document includes that
+party and its successors and assigns. All capitalized terms used herein which
+are defined in Article 9 of the Uniform Commercial Code in effect in the State
+of New York or other applicable jurisdiction on the date hereof and which are
+not otherwise defined herein shall have the same meanings herein as set forth
+therein. Whenever any agreement, promissory note or other instrument or document
+is defined in this Agreement, such definition shall be deemed to mean and
+include, from and after the date of any amendment, restatement, supplement,
+confirmation or modification thereof, such agreement, promissory note or other
+instrument or document as so amended, restated, supplemented, confirmed or
+modified, unless stated to be as in effect on a particular date. All terms
+defined in this Agreement in the singular shall have comparable meanings when
+used in the plural and vice versa. The words “hereof,” “herein” and “hereunder”
+and words of similar import when used in this Agreement shall refer to this
+Agreement as a whole and not to any particular provision of this Agreement.
+
+Section 1.3 Cross References. Unless otherwise specified, references in this
+Agreement and in each other Loan Document to any Article or Section are
+references to such Article or Section of this Agreement or such other Loan
+Document, as the case may be, and, unless otherwise specified, references in any
+Article, Section or definition to any clause are references to such clause in
+such Article, Section or definition.
+
+Section 1.4 Accounting Provisions. Unless otherwise expressly provided herein,
+all references in this Agreement to GAAP shall mean GAAP as in effect on the
+date of this Agreement as published by the Financial Accounting Standards Board.
+All accounting terms used in this Agreement and not defined expressly,
+completely or specifically herein shall have the respective meanings given to
+them, and shall be construed, in accordance with GAAP. All financial data
+(including financial ratios and other financial calculations) required to be
+submitted pursuant to this Agreement shall be prepared in accordance with GAAP
+applied in a manner consistent with that used to prepare the most recent audited
+consolidated financial statements of the Borrower and its Subsidiaries. All
+financial or accounting calculations or determinations required pursuant to this
+Agreement shall be made, and all references to the financial statements of the
+Borrower, Adjusted EBITDA, Senior Secured Debt, Total Debt, Interest Expense,
+Consolidated Total Assets and other such financial terms shall be deemed to
+refer to such items, unless otherwise expressly provided herein, on a
+consolidated basis for the Borrower and its Subsidiaries. Notwithstanding the
+foregoing, leases shall continue to be classified and accounted for on a basis
+consistent with that reflected in the financial statements of the Borrower for
+the fiscal year ended December 31, 2018 for all purposes, notwithstanding any
+change in GAAP relating thereto, including with respect to Accounting Standards
+Codification 842.
+
+Section 1.5 Divisions. For all purposes under the Loan Documents, in connection
+with any division or plan of division under Delaware law (or any comparable
+event under a different jurisdiction’s laws): (a) if any asset, right,
+obligation or liability of any Person becomes the asset, right, obligation or
+liability of a different Person, then it shall be deemed to have been
+
+ 
+
+-18-
+
+
+
+--------------------------------------------------------------------------------
+
+transferred from the original Person to the subsequent Person, and (b) if any
+new Person comes into existence, such new Person shall be deemed to have been
+organized and acquired on the first date of its existence by the holders of its
+equity interests at such time.
+
+ARTICLE 2 - LOANS
+
+Section 2.1 The Term Loans. The Lenders agree severally, and not jointly, upon
+the terms and subject to the conditions of this Agreement, to lend to the
+Borrower on the Agreement Date an amount equal to (i) in the aggregate, the
+Commitments of all Lenders and, (ii) individually, the sum of such Lender’s Term
+Loan Commitment and such Lender’s Incremental Term Loan Commitment. Amounts
+borrowed under this Section 2.1 and repaid or prepaid may not be reborrowed.
+
+Section 2.2 Manner of Advance and Disbursement.
+
+(a) Choice of Interest Rate, Etc. The Advances hereunder shall, at the option of
+the Borrower, be made as one or more Base Rate Advances or LIBOR Advances;
+provided, however, that at such time as there shall have occurred and be
+continuing a Default hereunder, the Borrower shall not have the right to
+Continue a LIBOR Advance or to Convert a Base Rate Advance to a LIBOR Advance.
+Any notice given to the Administrative Agent in connection with a requested
+Advance or Conversion hereunder shall be given to the Administrative Agent prior
+to 11:00 a.m. (New York, New York time) in order for such Business Day to count
+toward the minimum number of Business Days required.
+
+(b) Base Rate Advances.
+
+(i) Advances. The Borrower shall give the Administrative Agent in the case of
+Base Rate Advances irrevocable prior telephonic notice followed immediately by a
+Request for Advance by 9:00 A.M. (New York, New York time) on the date of such
+proposed Base Rate Advance; provided, however, that the Borrower’s failure to
+confirm any telephonic notice with a Request for Advance shall not invalidate
+any notice so given if acted upon by the Administrative Agent. Upon receipt of
+such notice from the Borrower, the Administrative Agent shall promptly notify
+each Lender by telephone, followed promptly by email or telecopy of the contents
+thereof.
+
+(ii) Conversions. The Borrower may, without regard to the applicable Payment
+Date and upon at least three (3) Business Days’ irrevocable prior telephonic
+notice by 11:00 A.M. (New York, New York time) followed by a Request for
+Advance, Convert all or a portion of the principal of a Base Rate Advance to a
+LIBOR Advance. On the date indicated by the Borrower, such Base Rate Advance
+shall be so Converted. The failure to give timely notice hereunder with respect
+to the Payment Date of any Base Rate Advance shall be considered a request for a
+Base Rate Advance.
+
+(c) LIBOR Advances. Upon request, the Administrative Agent, whose determination
+in absence of manifest error shall be conclusive, shall determine the available
+LIBOR Basis and shall notify the Borrower of such LIBOR Basis to apply for the
+applicable LIBOR Advance.
+
+ 
+
+-19-
+
+
+
+--------------------------------------------------------------------------------
+
+(i) Advances. The Borrower shall give the Administrative Agent in the case of
+LIBOR Advances at least three (3) Business Days’ irrevocable prior telephonic
+notice followed immediately by a Request for Advance; provided, however, that
+the Borrower’s failure to confirm any telephonic notice with a Request for
+Advance shall not invalidate any notice so given if acted upon by the
+Administrative Agent. Upon receipt of such notice from the Borrower, the
+Administrative Agent shall promptly notify each Lender by telephone, email or
+telecopy of the contents thereof.
+
+(ii) Conversions and Continuations. At least three (3) Business Days prior to
+the Payment Date for each LIBOR Advance, the Borrower shall give the
+Administrative Agent telephonic notice followed by written notice specifying
+whether all or a portion of such LIBOR Advance (A) is to be Continued in whole
+or in part as one or more LIBOR Advances, (B) is to be Converted in whole or in
+part to a Base Rate Advance, or (C) is to be repaid. The failure to give such
+notice shall be considered a request to Continue such Advance as a LIBOR Rate
+Advance with a one month Interest Period. Upon such Payment Date such LIBOR
+Advance will, subject to the provisions hereof, be so Continued, Converted or
+repaid, as applicable.
+
+(d) Notification of Lenders. Upon receipt of irrevocable prior telephonic notice
+in accordance with Section 2.2(b) or (c) hereof or a Request for Advance, or a
+notice of Conversion or Continuation from the Borrower with respect to any
+outstanding Advance prior to the Payment Date for such Advance, the
+Administrative Agent shall promptly but no later than the close of business on
+the day of such notice notify each Lender having the applicable Commitment or
+holding a Loan subject to such request for an Advance by telephone, followed
+promptly by written notice or telecopy, of the contents thereof and the amount
+of such Lender’s portion of the Advance. Each Lender having the applicable
+Commitment or holding a Loan subject to such request for an Advance shall, not
+later than 12:00 noon (New York, New York time) on the date of borrowing
+specified in such notice, make available to the Administrative Agent at the
+Administrative Agent’s Office, or at such account as the Administrative Agent
+shall designate, the amount of its portion of any Advance that represents a
+borrowing hereunder in immediately available funds.
+
+(e) Disbursement.
+
+(i) Prior to 2:00 p.m. (New York, New York time) on the date of an Advance
+hereunder, the Administrative Agent shall, subject to the satisfaction of the
+conditions set forth in Article 3 hereof, disburse the amounts made available to
+the Administrative Agent by the Lenders in like funds by (A) transferring the
+amounts so made available by wire transfer pursuant to the Borrower’s
+instructions, or (B) in the absence of such instructions, crediting the amounts
+so made available to the account of the Borrower maintained with the
+Administrative Agent.
+
+(ii) Unless the Administrative Agent shall have received notice from a Lender
+holding a Loan subject to such request for an Advance prior to 12:00 noon (New
+York, New York time) on the date of a requested Advance that such Lender will
+not make available to the Administrative Agent such Lender’s ratable portion of
+such Advance, the Administrative Agent may assume that such Lender has made or
+will make
+
+ 
+
+-20-
+
+
+
+--------------------------------------------------------------------------------
+
+such portion available to the Administrative Agent on the date of such Advance
+and the Administrative Agent may in its sole discretion and in reliance upon
+such assumption, make available to the Borrower on such date a corresponding
+amount. If and to the extent a Lender does not make such ratable portion
+available to the Administrative Agent, such Lender agrees to repay to the
+Administrative Agent on demand such corresponding amount together with interest
+thereon, for each day from the date such amount is made available to the
+Borrower until the date such amount is repaid to the Administrative Agent, at
+the greater of the Federal Funds Rate and a rate reasonably 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.
+
+(iii) If such Lender shall repay to the Administrative Agent such corresponding
+amount, such amount so repaid shall constitute such Lender’s portion of the
+Advances for purposes of this Agreement. If such Lender does not repay such
+corresponding amount immediately upon the Administrative Agent’s demand therefor
+and the Administrative Agent has made such corresponding amount available to the
+Borrower, the Administrative Agent shall notify the Borrower, and the Borrower
+shall immediately pay such corresponding amount to the Administrative Agent,
+with interest at the Federal Funds Rate from the date the Administrative Agent
+made such amount available to the Borrower. The Borrower shall not be obligated
+to pay, and such amount shall not accrue, any interest or fees on such amount
+other than as provided in the immediately preceding sentence. The failure of any
+Lender to fund its portion of any Advance shall not relieve any other Lender of
+its obligation, if any, hereunder to fund its respective portion of the Advance
+on the date of such borrowing, but no Lender shall be responsible for any such
+failure of any other Lender.
+
+Section 2.3 Interest.
+
+(a) On Base Rate Advances. Interest on each Base Rate Advance computed pursuant
+to clause (b) of the definition of Base Rate shall be computed on the basis of a
+year of 365/366 days and interest computed pursuant to clause (a) of the
+definition of Base Rate shall be computed on the basis of a 360-day year, in
+each case for the actual number of days elapsed and shall be payable at the Base
+Rate Basis for such Advance, in arrears on the applicable Payment Date. Interest
+on Base Rate Advances of the Loans then outstanding shall also be due and
+payable on the Term Loan Maturity Date.
+
+(b) On LIBOR Advances. Interest on each LIBOR Advance shall be computed on the
+basis of a 360-day year for the actual number of days elapsed and shall be
+payable at the LIBOR Basis for such Advance, in arrears on the applicable
+Payment Date, and, in addition, if the Interest Period for a LIBOR Advance
+exceeds three (3) months, interest on such LIBOR Advance shall also be due and
+payable in arrears on every three (3) month anniversary of the beginning of such
+Interest Period. Interest on LIBOR Advances then outstanding shall also be due
+and payable on the Term Loan Maturity Date.
+
+(c) [Intentionally Omitted.]
+
+ 
+
+-21-
+
+
+
+--------------------------------------------------------------------------------
+
+(d) Interest Upon Event of Default. Immediately upon the occurrence of an Event
+of Default under Section 8.1(b), (f) or (g) hereunder and following a request
+from the Majority Lenders upon the occurrence of any other Event of Default
+hereunder, the outstanding principal balance of the Loans shall bear interest at
+the Default Rate. Such interest shall be payable on demand by the Majority
+Lenders and shall accrue until the earlier of (i) waiver or cure of the
+applicable Event of Default, (ii) agreement by the Majority Lenders (or, if
+applicable to the underlying Event of Default, the Lenders) to rescind the
+charging of interest at the Default Rate or (iii) payment in full of the
+Obligations.
+
+(e) LIBOR Contracts. At no time may the number of outstanding LIBOR Advances
+hereunder exceed ten (10).
+
+(f) Applicable Margin. With respect to any Loans, the Applicable Margin shall be
+equal to, in the case of Base Rate Advances, 0.75% per annum and, in the case of
+LIBOR Advances, 1.75% per annum.
+
+Section 2.4 Fees. The Borrower agrees to pay to the Administrative Agent certain
+fees in connection with the execution and delivery of this Agreement as provided
+in the fee letters delivered in connection herewith.
+
+Section 2.5 [Intentionally Omitted].
+
+Section 2.6 Prepayments and Repayments.
+
+(a) Prepayment. The principal amount of any Base Rate Advance may be prepaid in
+full or ratably in part at any time, without premium or penalty and without
+regard to the Payment Date for such Advance. The principal amount of any LIBOR
+Advance may be prepaid in full or ratably in part, upon three (3) Business Days’
+prior written notice, or telephonic notice followed immediately by written
+notice, to the Administrative Agent, without premium or penalty; provided,
+however, that, to the extent prepaid prior to the applicable Payment Date for
+such LIBOR Advance, the Borrower shall reimburse the applicable Lenders, on the
+earlier of (A) demand by the applicable Lender or (B) the Term Loan Maturity
+Date, for any loss or out-of-pocket expense incurred by any such Lender in
+connection with such prepayment, as set forth in Section 2.9 hereof; and
+provided further, however, that (i) the Borrower’s failure to confirm any
+telephonic notice with a written notice shall not invalidate any notice so given
+if acted upon by the Administrative Agent and (ii) any notice of prepayment
+given hereunder may be revoked by the Borrower at any time. Any prepayment
+hereunder shall be in amounts of not less than $2,000,000.00 and in an integral
+multiple of $1,000,000.00. Amounts prepaid shall be paid together with accrued
+interest on the amount so prepaid.
+
+(b) Repayments. The Borrower shall repay the Loans, together with accrued
+interest and fees with respect thereto, in full on the Term Loan Maturity Date.
+
+Section 2.7 Notes; Loan Accounts.
+
+(a) The Loans shall be repayable in accordance with the terms and provisions set
+forth herein. If requested by a Lender, one (1) Note duly executed and delivered
+by one or
+
+ 
+
+-22-
+
+
+
+--------------------------------------------------------------------------------
+
+more Authorized Signatories of the Borrower, shall be issued by the Borrower and
+payable to such Lender in an amount equal to such Lender’s Commitment.
+
+(b) Each Lender may open and maintain on its books in the name of the Borrower a
+loan account with respect to its portion of the Loans and interest thereon. Each
+Lender which opens such a loan account shall debit such loan account for the
+principal amount of its portion of each Advance made by it and accrued interest
+thereon, and shall credit such loan account for each payment on account of
+principal of or interest on its Loans. The records of a Lender with respect to
+the loan account maintained by it shall be prima facie evidence of its portion
+of the Loans and accrued interest thereon absent manifest error, but the failure
+of any Lender to make any such notations or any error or mistake in such
+notations shall not affect the Borrower’s repayment obligations with respect to
+such Loans.
+
+Section 2.8 Manner of Payment.
+
+(a) Each payment (including, without limitation, any prepayment) by the Borrower
+on account of the principal of or interest on the Loans and any other amount
+owed to the Lenders or the Administrative Agent or any of them under this
+Agreement or the Notes shall be made not later than 1:00 p.m. (New York, New
+York time) on the date specified for payment under this Agreement to the
+Administrative Agent at the Administrative Agent’s Office, for the account of
+the Lenders or the Administrative Agent, as the case may be, in lawful money of
+the United States of America in immediately available funds. Any payment
+received by the Administrative Agent after 1:00 p.m. (New York, New York time)
+shall be deemed received on the next Business Day. Receipt by the Administrative
+Agent of any payment intended for any Lender or Lenders hereunder prior to 1:00
+p.m. (New York, New York time) on any Business Day shall be deemed to constitute
+receipt by such Lender or Lenders on such Business Day. In the case of a payment
+for the account of a Lender, the Administrative Agent will promptly, but no
+later than the close of business on the date such payment is deemed received,
+thereafter distribute the amount so received in like funds to such Lender. If
+the Administrative Agent shall not have received any payment from the Borrower
+as and when due, the Administrative Agent will promptly notify the applicable
+Lenders accordingly. In the event that the Administrative Agent shall fail to
+make distribution to any Lender as required under this Section 2.8, the
+Administrative Agent agrees to pay such Lender interest from the date such
+payment was due until paid at the Federal Funds Rate.
+
+(b) The Borrower agrees to pay principal, interest, fees and all other amounts
+due hereunder or under the Notes without set-off or counterclaim or any
+deduction whatsoever, except as provided in Section 10.3 hereof.
+
+(c) Prior to the acceleration of the Loans under Section 8.2 hereof, if some but
+less than all amounts due from the Borrower are received by the Administrative
+Agent with respect to the Obligations, the Administrative Agent shall distribute
+such amounts in the following order of priority, all on a pro rata basis to the
+Lenders: (i) to the payment on a pro rata basis of any fees or expenses then due
+and payable to the Administrative Agent or expenses then due and payable to the
+Lenders; (ii) to the payment of interest then due and payable on the Loans on a
+pro rata basis and of fees then due and payable to the Lenders on a pro rata
+basis; (iii) to the payment of all other amounts not otherwise referred to in
+this Section 2.8(c) then due and
+
+ 
+
+-23-
+
+
+
+--------------------------------------------------------------------------------
+
+payable to the Administrative Agent and the Lenders, or any of them, hereunder
+or under the Notes or any other Loan Document; and (iv) to the payment of
+principal then due and payable on the Loans on a pro rata basis.
+
+(d) Subject to any contrary provisions in the definition of Interest Period, if
+any payment under this Agreement or any of the other Loan Documents is specified
+to be made on a day which is not a Business Day, it shall be made on the next
+Business Day, and such extension of time shall in such case be included in
+computing interest and fees, if any, in connection with such payment.
+
+Section 2.9 Reimbursement.
+
+(a) Whenever any Lender shall sustain or incur any losses or reasonable
+out-of-pocket expenses in connection with (i) the failure by the Borrower to
+borrow, Continue or Convert any LIBOR Advance after having given notice of its
+intention to borrow, Continue or Convert such Advance in accordance with
+Section 2.2 or 2.6 hereof (whether by reason of the Borrower’s election not to
+proceed or the non-fulfillment of any of the conditions set forth in Article 3
+hereof, but not as a result of a failure of such Lender to make a Loan in
+accordance with the terms of this Agreement), or (ii) the prepayment other than
+on the applicable Payment Date (or failure to prepay after giving notice
+thereof) of any LIBOR Advance in whole or in part for any reason, the Borrower
+agrees to pay to such Lender, upon such Lender’s demand, an amount sufficient to
+compensate such Lender for all such losses and out-of-pocket expenses. Such
+Lender’s good faith determination of the amount of such losses or out-of-pocket
+expenses, as set forth in writing and accompanied by calculations in reasonable
+detail demonstrating the basis for its demand, shall be presumptively correct
+absent manifest error.
+
+(b) Losses subject to reimbursement hereunder shall include, without limiting
+the generality of the foregoing, reasonable out-of-pocket expenses incurred by
+any Lender or any participant of such Lender permitted hereunder in connection
+with the re-employment of funds prepaid, paid, repaid, not borrowed, or not
+paid, as the case may be, but not losses resulting from lost Applicable Margin
+or other margin. Losses subject to reimbursement will be payable whether the
+Term Loan Maturity Date is changed by virtue of an amendment hereto (unless such
+amendment expressly waives such payment) or as a result of acceleration of the
+Loans.
+
+(c) Failure or delay on the part of any Lender to demand compensation pursuant
+to the foregoing provisions of this Section 2.9 shall not constitute a waiver of
+such Lender’s right to demand such compensation, provided that the Borrower
+shall not be required to compensate a Lender pursuant to the foregoing
+provisions of this Section for any losses or expenses incurred more than six
+(6) months prior to the date that such Lender notifies the Borrower of the
+circumstances giving rise to such losses or expenses and of such Lender’s
+intention to claim compensation therefor.
+
+Section 2.10 Pro Rata Treatment.
+
+(a) [Intentionally Omitted.]
+
+(b) Payments. Except as provided in Article 10 hereof, each payment and
+prepayment of principal of, and interest on, the Loans shall be made to the
+Lenders pro rata on
+
+ 
+
+-24-
+
+
+
+--------------------------------------------------------------------------------
+
+the basis of their respective unpaid principal amounts outstanding under the
+applicable Loans immediately prior to such payment or prepayment.
+
+(c) Sharing of Payments by Lenders. If any Lender shall, by exercising any right
+of setoff or counterclaim or otherwise, obtain payment in respect of any
+principal of or interest on any of the Loans made by it resulting in such
+Lender’s receiving payment of a proportion of the aggregate amount of such Loans
+and accrued interest thereon greater than its pro rata share thereof as provided
+herein, then the Lender receiving such greater proportion shall (a) notify the
+Administrative Agent of such fact, and (b) purchase (for cash at face value)
+participations in the Loans 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, provided that:
+
+(i) if any such participations are purchased and all or any portion of the
+payment giving rise thereto is recovered, such participations shall be rescinded
+and the purchase price restored to the extent of such recovery, without
+interest; and
+
+(ii) the provisions of this Section shall not be construed to apply to (y) any
+payment made by or on behalf of the Borrower pursuant to and in accordance with
+the express terms of this Agreement or (z) any payment obtained by a Lender as
+consideration for the assignment of or sale of a participation in any of its
+Loans to any assignee or participant.
+
+The Borrower agrees that any Lender so purchasing a participation from another
+Lender pursuant to this Section 2.10(b) may, to the fullest extent permitted by
+law, exercise all its rights of payment (including, without limitation, the
+right of set-off) with respect to such participation as fully as if such
+purchasing Lender were the direct creditor of the Borrower in the amount of such
+participation.
+
+Section 2.11 Capital Adequacy. If after the date hereof, the adoption of any
+Applicable Law regarding the capital adequacy or liquidity of banks or bank
+holding companies, or any change in Applicable Law (whether adopted before or
+after the Agreement Date) or any change in the interpretation or administration
+thereof by any governmental authority, central bank or comparable agency charged
+with the interpretation or administration thereof, including any such change
+resulting from the enactment or issuance of any regulation or regulatory
+interpretation affecting existing Applicable Law, or compliance by such Lender
+(or the bank holding company of such Lender) with any directive regarding
+capital adequacy or liquidity (whether or not having the force of law) of any
+such governmental authority, central bank or comparable agency, has or would
+have the effect of reducing the rate of return on any Lender’s capital as a
+consequence of its obligations hereunder with respect to the Loans to a level
+below that which it could have achieved but for such adoption, change or
+compliance (taking into consideration such Lender’s policies with respect to
+capital adequacy or liquidity immediately before such adoption, change or
+compliance and assuming that such Lender’s (or the bank holding company of such
+Lender) capital was fully utilized prior to such adoption, change or compliance)
+by an amount reasonably deemed by such Lender to be material, then, upon demand
+by such Lender, the Borrower shall promptly pay to such Lender such additional
+amounts as shall be sufficient to compensate such Lender (on an after-tax basis
+and without duplication of amounts paid by the Borrower pursuant
+
+ 
+
+-25-
+
+
+
+--------------------------------------------------------------------------------
+
+to Section 10.3) for such reduced return which is reasonably allocable to this
+Agreement, together with interest on such amount from the fourth (4th) Business
+Day after the date of demand or the Term Loan Maturity Date, as applicable,
+until payment in full thereof at the Default Rate; 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 enacted, adopted or
+issued after the date hereof, regardless of the date enacted, adopted or issued.
+A certificate of such Lender setting forth the amount to be paid to such Lender
+by the Borrower as a result of any event referred to in this paragraph and
+supporting calculations in reasonable detail shall be presumptively correct
+absent manifest error. Notwithstanding any other provision of this Section 2.11,
+no Lender shall demand compensation for any increased cost or reduction referred
+to above if it shall not at the time be the general policy or practice of such
+Lender to demand such compensation in similar circumstances under comparable
+provisions of other credit agreements. Failure or delay on the part of any
+Lender to demand compensation pursuant to the foregoing provisions of this
+Section 2.11 shall not constitute a waiver of such Lender’s right to demand such
+compensation, provided that the Borrower shall not be required to compensate a
+Lender pursuant to the foregoing provisions of this Section for any increased
+costs incurred or reductions suffered more than six (6) months prior to the date
+that such Lender notifies the Borrower of the circumstances giving rise to such
+increased costs or reductions and of such Lender’s intention to claim
+compensation therefor (except that, if the circumstances giving rise to such
+increased costs or reductions is retroactive, then the six (6) month period
+referred to above shall be extended to include the period of retroactive effect
+thereof).
+
+Section 2.12 Lender Tax Forms. (i)Any Lender that is entitled to an exemption
+from or reduction of withholding Tax with respect to payments made under any
+Loan Document shall deliver to the Borrower and the Administrative Agent, at the
+time or times reasonably requested by the Borrower or the Administrative Agent,
+such properly completed and executed documentation reasonably requested by the
+Borrower or the Administrative Agent as will permit such payments to be made
+without withholding or at a reduced rate of withholding. In addition, any
+Lender, if reasonably requested by the Borrower or the Administrative Agent,
+shall deliver such other documentation prescribed by Applicable Law or
+reasonably requested by the Borrower or the Administrative Agent as will enable
+the Borrower or the Administrative Agent to determine whether or not such Lender
+is subject to backup withholding or information reporting requirements.
+Notwithstanding anything to the contrary in the preceding two sentences, the
+completion, execution and submission of such documentation (other than such
+documentation set forth in paragraphs (ii)(a) and (ii)(b) of this Section) shall
+not be required if in the Lenders’ reasonable judgment such completion,
+execution or submission would subject such Lender to any material unreimbursed
+cost or expense or would materially prejudice the legal or commercial position
+of such Lender.
+
+(ii) Without limiting the generality of the foregoing:
+
+(a) On or prior to the Agreement Date and on or prior to the first Business Day
+of each calendar year thereafter, to the extent it may lawfully do so at such
+time, each
+
+ 
+
+-26-
+
+
+
+--------------------------------------------------------------------------------
+
+Lender which is a Non-U.S. Person shall provide each of the Administrative Agent
+and the Borrower (A) if such Lender is a “bank” under Section 881(c)(3)(A) of
+the Code, with a properly executed original of Internal Revenue Service Form
+W-8BEN (or W-8BEN-E, as applicable) or W-8ECI (or any successor form) prescribed
+by the Internal Revenue Service or other documents satisfactory to the Borrower
+and the Administrative Agent, as the case may be, certifying (i) as to such
+Lender’s status as exempt from United States withholding taxes with respect to
+all payments to be made to such Lender hereunder and under the Notes or
+(ii) that all payments to be made to such Lender hereunder and under the Notes
+are subject to such taxes at a rate reduced to zero by an applicable tax treaty,
+or (B) if such Lender is not a “bank” within the meaning of Section 881(c)(3)(A)
+of the Code and intends to claim exemption from U.S. Federal withholding tax
+under Section 871(h) or 881(c) of the Code with respect to payments of
+“portfolio interest”, a Form W-8BEN (or W-8BEN-E, as applicable), or any
+subsequent versions thereof or successors thereto (and, if such Lender delivers
+a Form W-8BEN (or W-8BEN-E, as applicable), a certificate representing that such
+Lender is not a bank for purposes of Section 881(c) of the Code, is not a
+ten-percent (10%) shareholder (within the meaning of Section 871(h)(3)(B) of the
+Code and is not a controlled foreign corporation related to the Borrower (within
+the meaning of Section 864(d)(4) of the Code)), properly completed and duly
+executed by such Lender, indicating that such Lender is entitled to receive
+payments under this Agreement without deduction or withholding of any United
+States Federal income taxes as permitted by the Code. If a payment made to a
+Lender under this Agreement would be subject to withholding Tax imposed under
+FATCA if such Lender fails to comply with the applicable reporting requirements
+of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code,
+as applicable), such Lender shall deliver to the Administrative Agent and the
+Borrower, at the time or times prescribed by law and at such time or times
+reasonably requested by the Administrative Agent or the Borrower, such
+documentation prescribed by Applicable Law (included as prescribed by
+Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
+reasonably requested by the Administrative Agent or the Borrower as may be
+necessary for the Administrative Agent or the Borrower to comply with its
+obligations under FATCA, to determine that such Lender has complied with such
+Lender’s obligations under FATCA, or to determine the amount to deduct and
+withhold from such payment.
+
+(b) On or prior to the Agreement Date, and to the extent permitted by applicable
+U.S. Federal law, on or prior to the first Business Day of each calendar year
+thereafter, each Lender which is a U.S. Person shall provide the Administrative
+Agent and the Borrower a duly completed and executed copy of the Internal
+Revenue Service Form W-9 or successor form to the effect that it is a U.S.
+Person.
+
+Each Lender agrees that if any form or certification it previously delivered
+becomes 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. In addition, each Lender agrees that if any form or
+certification it previously delivered expires or becomes obsolete, upon written
+request by the Borrower or the Administrative Agent, such Lender shall update
+such form or certification or promptly notify the Borrower and the
+Administrative Agent in writing of its legal inability to do so.
+
+Section 2.13 Incremental Term Loans. The Borrower may, upon five (5) Business
+Days’ notice to the Administrative Agent, request a commitment for an additional
+term loan
+
+ 
+
+-27-
+
+
+
+--------------------------------------------------------------------------------
+
+from the Lenders or by adding one or more lenders, determined by the Borrower in
+its sole discretion, subject to the consent of the Administrative Agent (such
+consent not to be unreasonably withheld), which lender or lenders are willing to
+commit to such increase (each such lender, a “New Lender,” and such commitment,
+an “Incremental Term Loan Commitment”); provided, however, that (i) the Borrower
+may not request an Incremental Term Loan Commitment after the occurrence and
+during the continuance of an Event of Default, including, without limitation,
+any Event of Default that would result after giving effect to any Incremental
+Term Loan, (ii) each Incremental Term Loan Commitment shall be in an amount not
+less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof
+and (iii) the aggregate amount of all Incremental Term Loan Commitments shall
+not exceed $750,000,000. Such notice to the Administrative Agent shall describe
+the amount and intended disbursement date of the Incremental Term Loan to be
+made pursuant to such Incremental Term Loan Commitments. An Incremental Term
+Loan Commitment shall become effective upon (a) the execution by each applicable
+New Lender of a counterpart of this Agreement and delivering such counterpart to
+the Administrative Agent and (b) receipt by the Administrative Agent of a
+certificate of a responsible officer of the Borrower, dated as of the date such
+Incremental Term Loan Commitments are proposed to take effect, certifying that
+as of such date each of the representations and warranties in Article 4 hereof
+are true and correct in all material respects, except for those representations
+and warranties that are qualified by materiality or Materially Adverse Effect,
+which shall be true and correct, and no Default then exists. Over the term of
+the Agreement the Borrower may request Incremental Term Loan Commitments no more
+than four (4) times. Notwithstanding anything to the contrary herein, no Lender
+shall be required to provide an Incremental Term Loan Commitment pursuant to
+this Section 2.13.
+
+Section 2.14 Defaulting Lender.
+
+(a) 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, 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
+Section 11.11.
+
+(b) If the Borrower and the Administrative Agent agree in writing in their sole
+discretion that a Defaulting Lender should no longer be deemed to be a
+Defaulting Lender, the Administrative Agent will so notify the parties hereto,
+whereupon that Lender will cease to be a Defaulting Lender; provided that except
+to the extent otherwise expressly agreed by the affected parties, no change
+hereunder from Defaulting Lender to Lender will constitute a waiver or release
+of any claim of any party hereunder arising from that Lender’s having been a
+Defaulting Lender.
+
+ARTICLE 3 - CONDITIONS PRECEDENT
+
+Section 3.1 Conditions Precedent to Effectiveness of this Agreement. The
+effectiveness of this Agreement is subject to the prior or contemporaneous
+fulfillment (in the reasonable opinion of the Administrative Agent), or, if
+applicable, receipt by the Administrative Agent (in each case in form and
+substance reasonably satisfactory to the Administrative Agent and the Lenders)
+of each of the following:
+
+ 
+
+-28-
+
+
+
+--------------------------------------------------------------------------------
+
+(a) this Agreement duly executed by all relevant parties;
+
+(b) a loan certificate of the Borrower dated as of the Agreement Date, in
+substantially the form attached hereto as Exhibit D, including a certificate of
+incumbency with respect to each Authorized Signatory of the Borrower, together
+with the following items: (i) a true, complete and correct copy of the articles
+of incorporation and by-laws of the Borrower as in effect on the Agreement Date,
+(ii) a certificate of good standing for the Borrower issued by the Secretary of
+State of Delaware, and (iii) a true, complete and correct copy of the
+resolutions of the Borrower authorizing it to execute, deliver and perform each
+of the Loan Documents to which it is a party;
+
+(c) legal opinions of (i) Goodwin Procter LLP, special counsel to the Borrower
+and (ii) Edmund DiSanto, Esq., General Counsel of the Borrower, addressed to
+each Lender and the Administrative Agent and dated as of the Agreement Date;
+
+(d) receipt by the Borrower of evidence that all Necessary Authorizations, other
+than Necessary Authorizations the absence of which would not reasonably be
+expected to have, individually or in the aggregate, a Materially Adverse Effect,
+including all necessary consents to the closing of this Agreement, have been
+obtained or made, are in full force and effect and are not subject to any
+pending or, to the knowledge of the Borrower, threatened reversal or
+cancellation;
+
+(e) each of the representations and warranties in Article 4 hereof are true and
+correct in all material respects, except for those representations and
+warranties that are qualified by materiality or Materially Adverse Effect, which
+shall be true and correct, as of the Agreement Date, and no Default then exists;
+
+(f) the documentation that the Administrative Agent and the Lenders are required
+to obtain from the Borrower under Section 326 of the USA PATRIOT ACT (P.L.
+107-56, 115 Stat. 272 (2001)) and under any other provision of the Patriot Act,
+the Bank Secrecy Act (P.L. 91-508, 84 Stat. 1118 (1970)) or any regulations
+under such Act or the Patriot Act that contain document collection requirements
+that apply to the Administrative Agent and the Lenders;
+
+(g) all fees and expenses required to be paid in connection with this Agreement
+to the Administrative Agent, the Co-Syndication Agents, the Joint Lead Arrangers
+and the Lenders shall have been (or shall be simultaneously) paid in full;
+
+(h) audited consolidated financial statements for the three years ended
+December 31, 2019 of the Borrower and its Subsidiaries; and
+
+(i) a certificate of the president, chief financial officer, treasurer or
+controller of the Borrower as to the financial performance of the Borrower and
+its Subsidiaries, substantially in the form of Exhibit E attached hereto, and,
+to the extent applicable, using information contained in the financial
+statements delivered pursuant to clause (h) of this Section 3.1 in respect of
+the twelve (12) month period ended December 31, 2019.
+
+ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
+
+ 
+
+-29-
+
+
+
+--------------------------------------------------------------------------------
+
+Section 4.1 Representations and Warranties. The Borrower hereby represents and
+warrants in favor of the Administrative Agent and each Lender that:
+
+(a) Organization; Ownership; Power; Qualification. The Borrower is a corporation
+duly organized, validly existing and in good standing under the laws of its
+jurisdiction of incorporation. The Borrower has the power and authority to own
+its properties and to carry on its business as now being and as proposed
+hereafter to be conducted. The Subsidiaries of the Borrower and the direct and
+indirect ownership thereof as of the Agreement Date are as set forth on
+Schedule 3 attached hereto. As of the Agreement Date and except as would not
+reasonably be expected to have a Materially Adverse Effect, each Subsidiary of
+the Borrower is a corporation, limited liability company, limited partnership or
+other legal entity duly organized or formed, validly existing and in good
+standing under the laws of the jurisdiction of its incorporation or formation
+and has the power and authority to own its properties and to carry on its
+business as now being and as proposed hereafter to be conducted.
+
+(b) Authorization; Enforceability. The Borrower has the corporate power, and has
+taken all necessary action, to authorize it to borrow hereunder, to execute,
+deliver and perform this Agreement and each of the other Loan Documents to which
+it is a party in accordance with their respective terms, and to consummate the
+transactions contemplated hereby and thereby. This Agreement has been duly
+executed and delivered by the Borrower and is, and each of the other Loan
+Documents to which the Borrower is party is, a legal, valid and binding
+obligation of the Borrower and enforceable against the Borrower in accordance
+with its terms, subject to applicable bankruptcy, insolvency, fraudulent
+conveyance, reorganization, moratorium and similar laws affecting creditors’
+rights and remedies generally and subject, as to enforceability, to general
+principles of equity.
+
+(c) Compliance with Other Loan Documents and Contemplated Transactions. The
+execution, delivery and performance, in accordance with their respective terms,
+by the Borrower of this Agreement, the Notes, and each of the other Loan
+Documents, and the consummation of the transactions contemplated hereby and
+thereby, do not (i) require any consent or approval, governmental or otherwise,
+not already obtained, (ii) violate any Applicable Law respecting the Borrower,
+(iii) conflict with, result in a breach of, or constitute a default under the
+articles of incorporation or by-laws, as amended, of the Borrower, or under any
+indenture, agreement, or other instrument, including without limitation the
+Licenses, to which the Borrower is a party or by which the Borrower or its
+respective properties is bound that is material to the Borrower and its
+Subsidiaries on a consolidated basis or (iv) result in or require the creation
+or imposition of any Lien upon or with respect to any property now owned or
+hereafter acquired by the Borrower or any of the Material Subsidiaries, except
+for Liens permitted pursuant to Section 7.2 hereof.
+
+(d) Compliance with Law. The Borrower and its Subsidiaries are in compliance
+with all Applicable Law, except where the failure to be in compliance therewith
+would not individually or in the aggregate have a Materially Adverse Effect.
+
+(e) Title to Assets. As of the Agreement Date, the Borrower and its Subsidiaries
+have good title to, or a valid leasehold interest in, all of their respective
+assets, except for such exceptions as would not reasonably be expected to have,
+individually or in the
+
+ 
+
+-30-
+
+
+
+--------------------------------------------------------------------------------
+
+aggregate, a Materially Adverse Effect. None of the properties or assets of the
+Borrower or any Material Subsidiary is subject to any Liens, except for Liens
+permitted pursuant to Section 7.2 hereof.
+
+(f) Litigation. There is no action, suit, proceeding or investigation pending
+against, or, to the knowledge of the Borrower, threatened against the Borrower
+or any of its Subsidiaries or any of their respective properties, including
+without limitation the Licenses, in any court or before any arbitrator of any
+kind or before or by any governmental body (including, without limitation, the
+FCC) that (i) calls into question the validity of this Agreement or any other
+Loan Document or (ii) as of the Agreement Date, would reasonably be expected to
+have a Materially Adverse Effect, other than as may be disclosed in the public
+filings of the Borrower with the Securities and Exchange Commission prior to the
+Agreement Date.
+
+(g) Taxes. All Federal income, other material Federal and material state and
+other tax returns of the Borrower and its Material Subsidiaries required by law
+to be filed have been duly filed and all Federal income, other material Federal
+and material state and other taxes, including, without limitation, withholding
+taxes, assessments and other governmental charges or levies required to be paid
+by the Borrower or any of its Subsidiaries or imposed upon the Borrower or any
+of its Subsidiaries or any of their respective properties, income, profits or
+assets, which are due and payable, have been paid, except any such taxes (i) (x)
+the payment of which the Borrower or any of its Subsidiaries is diligently
+contesting in good faith by appropriate proceedings, (y) for which adequate
+reserves in accordance with GAAP have been provided on the books of such Person,
+and (z) as to which no Lien other than a Lien permitted pursuant to Section 7.2
+hereof has attached, or (ii) which may result from audits not yet conducted, or
+(iii) as to which the failure to pay would not reasonably be expected to have a
+Materially Adverse Effect.
+
+(h) Financial Statements. As of the Agreement Date, the Borrower has furnished
+or caused to be furnished to the Administrative Agent, the audited financial
+statements for the Borrower and its Subsidiaries on a consolidated basis for the
+fiscal year ended December 31, 2019, all of which have been prepared in
+accordance with GAAP and present fairly in all material respects the financial
+position of the Borrower and its Subsidiaries on a consolidated basis, on and as
+at such date and the results of operations for the period then ended. As of the
+Agreement Date, none of the Borrower or its Subsidiaries has any liabilities,
+contingent or otherwise, that are material to the Borrower and its Subsidiaries
+on a consolidated basis other than as disclosed in the financial statements
+referred to in the preceding sentence or in the reports filed by the Borrower
+with the Securities and Exchange Commission prior to the Agreement Date or the
+Obligations.
+
+(i) No Material Adverse Change. Other than as may be disclosed in the public
+filings of the Borrower with the Securities and Exchange Commission prior to the
+Agreement Date, there has occurred no event since December 31, 2019 which has
+had or which would reasonably be expected to have a Materially Adverse Effect.
+
+(j) ERISA. The Borrower and its Subsidiaries and, to the best of their
+knowledge, their ERISA Affiliates have fulfilled their respective obligations
+under the minimum funding standards of ERISA and the Code with respect to each
+Plan and are in compliance in all
+
+ 
+
+-31-
+
+
+
+--------------------------------------------------------------------------------
+
+material respects with the currently applicable provisions of ERISA and the Code
+except where any failure or non-compliance would not reasonably be expected to
+result in a Materially Adverse Effect.
+
+(k) Compliance with Regulations U and X. The Borrower does not own or presently
+intend to own an amount of “margin stock” as defined in Regulations U and X (12
+C.F.R. Parts 221 and 224) of the Board of Governors of the Federal Reserve
+System (“margin stock”) representing twenty-five percent (25%) or more of the
+total assets of the Borrower, as measured on both a consolidated and
+unconsolidated basis. Neither the making of the Loans nor the use of proceeds
+thereof will violate, or be inconsistent with, the provisions of any of the
+above-mentioned regulations.
+
+(l) Investment Company Act. The Borrower is not required to register under the
+provisions of the Investment Company Act of 1940, as amended.
+
+(m) Solvency. As of the Agreement Date and after giving effect to the
+transactions contemplated by the Loan Documents (i) the assets and property of
+the Borrower and its Subsidiaries on a consolidated basis, at a fair valuation,
+will exceed the total amount of liabilities, including contingent liabilities of
+the Borrower and its Subsidiaries on a consolidated basis; (ii) the capital of
+the Borrower and its Subsidiaries on a consolidated basis will not be
+unreasonably small to conduct its business as such business is now conducted and
+expected to be conducted following the Agreement Date; (iii) the Borrower and
+its Subsidiaries on a consolidated basis will not have incurred debts, or have
+intended to incur debts, beyond their ability to pay such debts as they mature;
+and (iv) the present fair salable value of the assets and property of the
+Borrower and its Subsidiaries on a consolidated basis will be greater than the
+amount that will be required to pay their probable liabilities (including debts)
+as they become absolute and matured. For purposes of this Section, the amount of
+contingent liabilities at any time will be computed as the amount that, in light
+of all the facts and circumstances existing as such time, can reasonably be
+expected to become an actual or matured liability.
+
+(n) Designated Persons; Sanctions Laws and Regulations. Neither the Borrower nor
+any of its Subsidiaries nor, to the knowledge of the Borrower, any of their
+respective directors, officers, brokers or other agents is a Designated Person.
+The Borrower, its Subsidiaries and their respective officers and employees and
+to the knowledge of the Borrower, its directors and agents, are in compliance
+with Anti-Corruption Laws and applicable Sanctions Laws and Regulations in all
+material respects.
+
+(o) Beneficial Ownership Certifications. As of the date so delivered, to the
+best knowledge of the Borrower, the information included in the Beneficial
+Ownership Certification, if any, provided to any Lender in connection with this
+Agreement is true and correct in all respects.
+
+Section 4.2 Survival of Representations and Warranties, Etc. All representations
+and warranties made under this Agreement and any other Loan Document, shall be
+deemed to be made, and shall be true and correct in all material respects,
+except for those representations and warranties that are qualified by
+materiality or Materially Adverse Effect, which shall be true and correct, at
+and as of the Agreement Date. All representations and warranties made under this
+
+ 
+
+-32-
+
+
+
+--------------------------------------------------------------------------------
+
+Agreement and the other Loan Documents shall survive, and not be waived by, the
+execution hereof by the Lenders and the Administrative Agent, any investigation
+or inquiry by any Lender or the Administrative Agent, or the making of any
+Advance under this Agreement.
+
+ARTICLE 5 - GENERAL COVENANTS
+
+So long as any of the Obligations are outstanding and unpaid:
+
+Section 5.1 Preservation of Existence and Similar Matters. Except as permitted
+under Section 7.3 hereof or to the extent required for the Borrower or any of
+its Subsidiaries to maintain its status as a REIT, the Borrower will, and will
+cause each of its Subsidiaries to, preserve and maintain its existence, and its
+material rights, franchises, licenses and privileges in the jurisdiction of its
+incorporation or formation, including, without limitation, the Licenses and all
+other Necessary Authorizations, except where the failure to do so would not
+reasonably be expected to have a Materially Adverse Effect.
+
+Section 5.2 Compliance with Applicable Law. The Borrower will, and will cause
+each of its Subsidiaries to comply in all respects with the requirements of all
+Applicable Law, except when the failure to comply therewith would not reasonably
+be expected to have a Materially Adverse Effect.
+
+Section 5.3 Maintenance of Properties. The Borrower will, and will cause each of
+its Subsidiaries to, maintain or cause to be maintained in the ordinary course
+of business in good repair, working order and condition (reasonable wear and
+tear excepted) all properties then used or useful in their respective businesses
+(whether owned or held under lease) that, individually or in the aggregate, are
+material to the conduct of the business of the Borrower and its Subsidiaries on
+a consolidated basis, except where the failure to maintain would not reasonably
+be expected to have a Materially Adverse Effect.
+
+Section 5.4 Accounting Methods and Financial Records. The Borrower will, and
+will cause each of its Subsidiaries on a consolidated and consolidating basis
+to, maintain a system of accounting established and administered in accordance
+with generally accepted accounting principles, keep adequate records and books
+of account in which complete entries will be made in accordance with generally
+accepted accounting principles and reflecting all transactions required to be
+reflected by generally accepted accounting principles, and keep accurate and
+complete records of their respective properties and assets.
+
+Section 5.5 Insurance. The Borrower will, and will cause each Material
+Subsidiary to, maintain insurance (including self-insurance) with respect to its
+properties and business that are material to the conduct of the business of the
+Borrower and its Subsidiaries on a consolidated basis from responsible companies
+in such amounts and against such risks as are customary for companies engaged in
+the same or similar business, with all premiums thereon to be paid by the
+Borrower and the Material Subsidiaries.
+
+Section 5.6 Payment of Taxes and Claims. The Borrower will, and will cause each
+of its Subsidiaries to, pay and discharge all Federal income, other material
+Federal and material state and other material taxes required to be paid by them
+or imposed upon them or their income or profits or upon any properties belonging
+to them, prior to the date on which penalties attach
+
+ 
+
+-33-
+
+
+
+--------------------------------------------------------------------------------
+
+thereto, which, if unpaid, might become a Lien or charge upon any of their
+properties (other than Liens permitted pursuant to Section 7.2 hereof);
+provided, however, that no such tax, assessment, charge, levy or claim need be
+paid which is being diligently contested in good faith by appropriate
+proceedings and for which adequate reserves in accordance with GAAP shall have
+been set aside on the appropriate books or where the failure to pay would not
+reasonably be expected to have a Materially Adverse Effect.
+
+Section 5.7 Visits and Inspections. The Borrower will, and will cause each
+Material Subsidiary to, permit representatives of the Administrative Agent and
+any of the Lenders, upon reasonable notice, to (a) visit and inspect the
+properties of the Borrower or any Material Subsidiary during business hours,
+(b) inspect and make extracts from and copies of their respective books and
+records, and (c) discuss with their respective principal officers and
+accountants (with representatives of the Borrower participating in such
+discussions with their accountants) their respective businesses, assets,
+liabilities, financial positions, results of operations and business prospects,
+all at such reasonable times and as often as reasonably requested.
+
+Section 5.8 Use of Proceeds. The Borrower will use the proceeds of the Advances
+to refinance existing Indebtedness outstanding and for working capital and other
+general corporate purposes.
+
+Section 5.9 Maintenance of REIT Status. The Borrower will, at all times, conduct
+its affairs in a manner so as to continue to qualify as a REIT and elect to be
+treated as a REIT under all Applicable Laws, rules and regulations until such
+time as the board of directors of the Borrower deems it in the best interests of
+the Borrower and its stockholders not to remain qualified as a REIT.
+
+Section 5.10 Senior Credit Facilities. If the provisions of Articles 7 (Negative
+Covenants) and/or 8 (Default) (and the definitions of defined terms used
+therein) of any of the Existing Credit Agreements are proposed to be amended or
+otherwise modified in a manner that is more restrictive from the Borrower’s
+perspective (a “Restrictive Change”), the Borrower covenants and agrees that it
+shall (a) provide the Lenders with written notice describing such proposed
+Restrictive Change promptly and in any event prior to the effectiveness of such
+Restrictive Change, and (b) upon fifteen (15) Business Days prior written notice
+from the Majority Lenders requesting that such Restrictive Change be effected
+with respect to this Agreement, take such steps as are necessary to effect a
+Restrictive Change with respect to this Agreement that is acceptable to the
+Majority Lenders and the Borrower; provided, that, in the event the Borrower
+fails to effect such equivalent Restrictive Change within such fifteen
+(15) Business Day period, then, such Restrictive Change to such Existing Credit
+Agreement shall automatically be applied to this Agreement; provided, further
+that (i) no default or event of default would occur solely by reason of such
+amendment to this Agreement or any other debt agreement of the Borrower, and
+(ii) such Restrictive Change shall not be made if doing so would cause the
+Borrower to fail to maintain, or prevent it from being able to elect, REIT
+status. Notwithstanding the foregoing, any such Restrictive Change made to this
+Agreement hereunder shall remain in effect until such time as the applicable
+Existing Credit Agreement has matured or otherwise been terminated, at which
+point, unless the Borrower’s Debt Ratings (or their related outlooks) have
+declined since the date this Agreement was executed, the Administrative Agent,
+
+ 
+
+-34-
+
+
+
+--------------------------------------------------------------------------------
+
+Lenders and the Borrower will take such steps as are necessary to amend this
+Agreement to remove entirely any such amendments made under this Section 5.10 to
+this Agreement; provided, however, that in the event that (A) the applicable
+Existing Credit Agreement has matured or otherwise been terminated, and (B) the
+Borrower’s Debt Ratings (or their related outlooks) have declined since the date
+this Agreement was executed, the Administrative Agent, the Lenders and the
+Borrower shall negotiate in good faith to modify such Restrictive Change with
+respect to its application for the remainder of this Agreement.
+
+ARTICLE 6 - INFORMATION COVENANTS
+
+So long as any of the Obligations are outstanding and unpaid, the Borrower will
+furnish or cause to be furnished to the Administrative Agent (with the
+Administrative Agent to make the same available to the Lenders) at its office:
+
+Section 6.1 Quarterly Financial Statements and Information. Within forty-five
+(45) days after the last day of each of the first three (3) quarters of each
+fiscal year of the Borrower, the consolidated balance sheet of the Borrower and
+its Subsidiaries at the end of such quarter and as of the end of the preceding
+fiscal year, and the related consolidated statement of operations and the
+related consolidated statement of cash flows of the Borrower and its
+Subsidiaries for such quarter and for the elapsed portion of the year ended with
+the last day of such quarter, which shall set forth in comparative form such
+figures as at the end of and for such quarter and appropriate prior period and
+shall be certified by the chief financial officer of the Borrower to have been
+prepared in accordance with generally accepted accounting principles and to
+present fairly in all material respects the consolidated financial position of
+the Borrower and its Subsidiaries as at the end of such period and the results
+of operations for such period, and for the elapsed portion of the year ended
+with the last day of such period, subject only to normal year-end and audit
+adjustments; provided, that in the event of any change in generally accepted
+accounting principles used in the preparation of such financial statements, the
+Borrower shall also provide, if necessary for the determination of compliance
+with Section 7.5 and 7.6, a statement of reconciliation conforming such
+financial statements to GAAP; provided, further, that notwithstanding anything
+to the contrary in this Section 6.1, no financial statements delivered pursuant
+to this Section 6.1 shall be required to include footnotes.
+
+Section 6.2 Annual Financial Statements and Information. As soon as available,
+but in any event not later than the earlier of (a) the date such deliverables
+are required (if at all) by the Securities and Exchange Commission and (b) one
+hundred twenty (120) days after the end of each fiscal year of the Borrower, the
+audited consolidated balance sheet of the Borrower and its Subsidiaries as of
+the end of such fiscal year and the related audited consolidated statement of
+operations for such fiscal year and for the previous fiscal year, the related
+audited consolidated statements of cash flow and stockholders’ equity for such
+fiscal year and for the previous fiscal year, which shall be accompanied by an
+opinion of Deloitte & Touche, LLP, or other independent certified public
+accountants of recognized national standing reasonably acceptable to the
+Administrative Agent, together with a statement of such accountants (unless the
+giving of such statement is contrary to accounting practice for the continuing
+independence of such accountant) that in connection with their audit, nothing
+came to their attention that caused them to believe that the Borrower was not in
+compliance with Sections 7.5 and 7.6 hereof insofar as they relate to accounting
+matters; provided that in the event of any change in generally accepted
+
+ 
+
+-35-
+
+
+
+--------------------------------------------------------------------------------
+
+accounting principles used in the preparation of such financial statements, the
+Borrower shall also provide, if necessary for the determination of compliance
+with Section 7.5 and 7.6, a statement of reconciliation conforming such
+financial statements to GAAP.
+
+Section 6.3 Performance Certificates. At the time the financial statements are
+furnished pursuant to Sections 6.1 and 6.2 hereof, a certificate of the
+president, chief financial officer or treasurer of the Borrower as to the
+financial performance of the Borrower and its Subsidiaries on a consolidated
+basis, in substantially the form attached hereto as Exhibit E:
+
+(a) setting forth as and at the end of such quarterly period or fiscal year, as
+the case may be, the arithmetical calculations required to establish whether or
+not the Borrower was in compliance with Sections 7.5 and 7.6 hereof; and
+
+(b) stating that, to the best of his or her knowledge, no Default has occurred
+and is continuing as at the end of such quarterly period or year, as the case
+may be, or, if a Default has occurred, disclosing each such Default and its
+nature, when it occurred, whether it is continuing and the steps being taken by
+the Borrower with respect to such Default.
+
+Section 6.4 Copies of Other Reports.
+
+(a) Promptly upon receipt thereof, copies of the management letter prepared in
+connection with the annual audit referred to in Section 6.2 hereof.
+
+(b) Promptly upon receipt thereof, copies of any adverse notice or report
+regarding any License that would reasonably be expected to have a Materially
+Adverse Effect.
+
+(c) From time to time and promptly upon each request, such data, certificates,
+reports, statements, documents or further information regarding the business,
+assets, liabilities, financial position, projections, results of operations or
+business prospects of the Borrower and its Subsidiaries, as the Administrative
+Agent or any Lender may reasonably request.
+
+(d) Promptly after the sending thereof, copies of all statements, reports and
+other information which the Borrower sends to public security holders of the
+Borrower generally or publicly files with the Securities and Exchange
+Commission, but solely in the event that any such statement, report or
+information has not been made publicly available by the Securities and Exchange
+Commission on the EDGAR or similar system or by the Borrower on its internet
+website.
+
+Section 6.5 Notice of Litigation and Other Matters. Unless previously disclosed
+in the public filings of the Borrower with the Securities and Exchange
+Commission, notice specifying the nature and status of any of the following
+events, promptly, but in any event not later than fifteen (15) days after the
+occurrence of any of the following events becomes known to the Borrower:
+
+(a) the commencement of all proceedings and investigations by or before any
+governmental body and all actions and proceedings in any court or before any
+arbitrator against the Borrower or any of its Subsidiaries or, to the extent
+known to the Borrower, threatened in
+
+ 
+
+-36-
+
+
+
+--------------------------------------------------------------------------------
+
+writing against the Borrower or any of its Subsidiaries, which would reasonably
+be expected to have a Materially Adverse Effect;
+
+(b) any material adverse change with respect to the business, assets,
+liabilities, financial position, results of operations or business prospects of
+the Borrower and its Subsidiaries, taken as a whole, other than changes which
+have not had and would not reasonably be expected to have a Materially Adverse
+Effect and other than changes in the industry in which the Borrower or any of
+its Subsidiaries operates or the economy or business conditions in general;
+
+(c) any Default, giving a description thereof and specifying the action proposed
+to be taken with respect thereto; and
+
+(d) the commencement or threatened commencement of any litigation regarding any
+Plan or naming it or the trustee of any such Plan with respect to such Plan or
+any action taken by the Borrower or any of its Subsidiaries or any ERISA
+Affiliate of the Borrower to withdraw or partially withdraw from any Plan or to
+terminate any Plan, that in each case would reasonably be expected to have a
+Materially Adverse Effect.
+
+Section 6.6 Certain Electronic Delivery; Public Information. Documents required
+to be delivered pursuant to this Section 6 (to the extent any such documents are
+included in materials otherwise filed with the Securities and Exchange
+Commission) may be delivered electronically and if so delivered, shall be deemed
+to have been delivered on the date (i) on which the Borrower posts such
+documents, or provides a link thereto on the Borrower’s website on the Internet
+at the website address listed on Schedule 4; or (ii) on which such documents are
+posted on the Borrower’s behalf on an Internet or intranet website, if any, to
+which each Lender and the Administrative Agent have access (whether a
+commercial, third-party website or whether sponsored by the Administrative
+Agent); provided that the Administrative Agent shall receive notice (by
+telecopier or electronic mail) of the posting of any such documents and shall be
+provided access (by electronic mail) to electronic versions (i.e., soft copies)
+of such documents.
+
+The Borrower hereby acknowledges that (a) the Administrative Agent will make
+available to the Lenders materials and/or information provided by or on behalf
+of the Borrower hereunder (collectively, the “Borrower Materials”) by posting
+the Borrower Materials on IntraLinks 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 that are to be made available to Public Lenders
+shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
+mean that the word “PUBLIC” shall appear prominently on the first page thereof;
+(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
+authorized the Administrative Agent 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 confidential information, they shall be treated as set forth in
+Section 11.18); (y) all Borrower Materials marked “PUBLIC” are
+
+ 
+
+-37-
+
+
+
+--------------------------------------------------------------------------------
+
+permitted to be made available through a portion of the Platform designated
+“Public Side Information;” and (z) the Administrative Agent and the Joint Lead
+Arrangers 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
+marked as “Public Investor.” Notwithstanding the foregoing, (1) the Borrower
+shall be under no obligation to mark any Borrower Materials “PUBLIC” and (2) the
+following Borrower Materials shall be marked “PUBLIC”, unless the Borrower
+notifies the Administrative Agent promptly that any such document contains
+material non-public information: (1) the Loan Documents and (2) notification of
+changes in the terms of the Loans.
+
+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 communications
+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.
+
+Section 6.7 Know Your Customer Information. Upon a merger or consolidation
+pursuant to Section 7.3(b), the Borrower or the surviving corporation into which
+the Borrower is merged or consolidated shall deliver for the benefit of the
+Lenders and the Administrative Agent, such other documents as may reasonably be
+requested in connection with such merger or consolidation, including, without
+limitation, information in respect of “know your customer” and similar
+requirements, an incumbency certificate and an opinion of nationally recognized
+independent counsel, or other independent counsel reasonably satisfactory to the
+Majority Lenders, to the effect that all agreements or instruments effecting the
+assumption of the Obligations of the Borrower under the Notes, this Agreement
+and the other Loan Documents pursuant to the terms of Section 7.3(b) are
+enforceable in accordance with their terms and comply with the terms hereof.
+
+Section 6.8 Additional Requested Information. Promptly upon request, information
+and documentation reasonably requested by the Administrative Agent or any Lender
+for purposes of compliance with applicable “know your customer” and anti-money
+laundering rules and regulations, including the Patriot Act and the Beneficial
+Ownership Regulation.
+
+ARTICLE 7 - NEGATIVE COVENANTS
+
+So long as any of the Obligations are outstanding and unpaid:
+
+Section 7.1 Indebtedness; Guaranties of the Borrower and its Subsidiaries. The
+Borrower shall not, and shall not permit any of its Subsidiaries to, create,
+assume, incur or otherwise become or remain obligated in respect of, or permit
+to be outstanding, any Indebtedness (including, without limitation, any
+Guaranty) except:
+
+(a) Indebtedness existing on the date hereof and disclosed in the public filings
+of the Borrower with the Securities and Exchange Commission and any refinancing,
+extensions, renewals and replacements (including through open market purchases
+and tender offers) of any
+
+ 
+
+-38-
+
+
+
+--------------------------------------------------------------------------------
+
+such Indebtedness that do not (i) increase the outstanding principal amount and
+any existing commitments not utilized thereunder, or accreted value thereof (or,
+in the case of open market purchases and tender offers, exceed the current
+market value thereof) plus any accrued interest thereon, the amount of any
+premiums and any costs and expenses incurred to effect such refinancing,
+extension, renewal or replacement, (ii) result in an earlier maturity date or
+decrease the weighted average life thereof or (iii) change the direct or any
+contingent obligor with respect thereto;
+
+(b) Indebtedness owed to the Borrower or any of its Subsidiaries;
+
+(c) Indebtedness existing at the time a Subsidiary of the Borrower (not having
+previously been a Subsidiary) (i) becomes a Subsidiary of the Borrower or
+(ii) is merged or consolidated with or into a Subsidiary of the Borrower and any
+refinancing, extensions, renewals and replacements (including through open
+market purchases and tender offers) of any such Indebtedness that do not
+(x) increase the outstanding principal amount, including any existing
+commitments not utilized thereunder, or accreted value thereof (or, in the case
+of open market purchases and tender offers, exceed the current market value
+thereof) plus any accrued interest thereon, the amount of any premiums and any
+costs and expenses incurred to effect such refinancing, extension, renewal or
+replacement or (y) result in an earlier maturity date or decrease the weighted
+average life thereof; provided that such Indebtedness is not created in
+contemplation of such merger or consolidation;
+
+(d) Indebtedness secured by Permitted Liens;
+
+(e) Capitalized Lease Obligations;
+
+(f) obligations under Hedge Agreements; provided that such Hedge Agreements
+shall not be speculative in nature;
+
+(g) Indebtedness of Subsidiaries of the Borrower, so long as (i) no Default
+exists or would be caused thereby and (ii) the principal outstanding amount of
+such Indebtedness at the time of its incurrence does not exceed (when taken
+together with the principal outstanding amount at such time of Indebtedness
+incurred under Section 7.1(i) hereof (or portion thereof) that is guaranteed by
+any Subsidiary of the Borrower), in the aggregate, the greater of (x)
+$2,500,000,000 and (y) fifty percent (50%) of Adjusted EBITDA of the Borrower
+and its Subsidiaries on a consolidated basis as of the last day of the most
+recently completed fiscal quarter;
+
+(h) Indebtedness under (i) each Existing ABS Facility and (ii) any additional
+ABS Facilities entered into by the Borrower or any of its Subsidiaries
+(including any increase of any Existing ABS Facility) so long as, in each case
+after giving pro forma effect to such ABS Facility, the Borrower is in
+compliance with Sections 7.5 and 7.6 hereof;
+
+(i) (i) Indebtedness under the Loan Documents and (ii) other Indebtedness of the
+Borrower so long as, in each case after giving pro forma effect to such other
+Indebtedness, the Borrower is in compliance with Sections 7.5 and 7.6 hereof;
+
+ 
+
+-39-
+
+
+
+--------------------------------------------------------------------------------
+
+(j) Guaranties by the Borrower of any of the foregoing except for the
+Indebtedness set forth under Section 7.1(h) hereof; and
+
+(k) Guaranties by any Subsidiary of the Borrower of any of the foregoing except
+for the Indebtedness set forth under Section 7.1(h) hereof; provided that there
+shall be no prohibition against Guaranties by any Subsidiaries of the Borrower
+that (i) are special purposes entities directly involved in any ABS Facilities
+and (ii) have no material assets other than the direct or indirect Ownership
+Interests in special purpose entities directly involved in such ABS Facilities;
+provided further that the principal outstanding amount of any Indebtedness set
+forth in Section 7.1(i) hereof (or portion thereof) that is guaranteed by any
+Subsidiary of the Borrower shall not exceed (when taken together with the
+principal outstanding amount at such time of Indebtedness incurred under
+Section 7.1(g) hereof), in the aggregate, the greater of (x) $2,500,000,000 and
+(y) fifty percent (50%) of Adjusted EBITDA of the Borrower and its Subsidiaries
+on a consolidated basis as of the last day of the most recently completed fiscal
+quarter; and
+
+(l) In respect of Subsidiaries of the Borrower that are owned by the Borrower
+and one or more joint venture partners, Indebtedness of such Subsidiaries owed
+to such joint venture partners.
+
+For purposes of determining compliance with this Section 7.1, (A) if an item of
+Indebtedness meets the criteria of more than one of the types of Indebtedness
+described above, the Borrower, in its sole discretion, shall classify such item
+of Indebtedness and only be required to include the amount and type of such
+Indebtedness in one of such clauses, although the Borrower may divide and
+classify an item of Indebtedness in one or more of the types of Indebtedness and
+may later re-divide or reclassify all or a portion of such item of Indebtedness
+in any manner that complies with this Section 7.1 and (B) the amount of
+Indebtedness issued at a price that is less than the principal amount thereof
+shall be equal to the amount of the liability in respect thereof determined in
+conformity with GAAP.
+
+Section 7.2 Limitation on Liens. The Borrower shall not, and shall not permit
+any of its Subsidiaries to, create, assume, incur or permit to exist or to be
+created, assumed, incurred or permitted to exist, directly or indirectly, any
+Lien on any of its properties or assets, whether now owned or hereafter
+acquired, except for (i) Liens securing the Obligations (if any), (ii) Permitted
+Liens, and (iii) Liens securing Indebtedness permitted under Section 7.1(a) (but
+only if and to the extent such Indebtedness (or the Indebtedness which was
+refinanced, extended, renewed or replaced) is secured as of the date hereof),
+Section 7.1(c) (but only if and to the extent such Indebtedness (or the
+Indebtedness which was refinanced, extended, renewed or replaced) is secured as
+of the date the Subsidiary that incurred such Indebtedness became a Subsidiary
+of the Borrower), Section 7.1(g), Section 7.1(h) or Section 7.1(k).
+
+Section 7.3 Liquidation, Merger or Disposition of Assets.
+
+(a) Disposition of Assets. The Borrower shall not, and shall not permit any of
+its Subsidiaries to, at any time sell, lease, abandon, or otherwise dispose of
+any assets (other than assets disposed of in the ordinary course of business),
+except for (i) the transfer of assets among the Borrower and its Subsidiaries
+(excluding Subsidiaries of such Persons described in clause (b)
+
+ 
+
+-40-
+
+
+
+--------------------------------------------------------------------------------
+
+of the definition of “Subsidiary” if the requirements of clause (a) thereof are
+not otherwise met) or the transfer of assets between or among the Borrower’s
+Subsidiaries (excluding Subsidiaries of such Persons described in clause (b) of
+the definition of “Subsidiary” if the requirements of clause (a) thereof are not
+otherwise met), (ii) the transfer of assets by the Borrower or any of its
+Subsidiaries to Unrestricted Subsidiaries representing an amount not to exceed,
+in any given fiscal year, fifteen percent (15%) of Adjusted EBITDA of the
+Borrower and its Subsidiaries on a consolidated basis as of the last day of the
+immediately preceding fiscal year, but in aggregate for the period commencing on
+the Agreement Date and ending of the date of such transfer, not more than
+twenty-five percent (25%) of Adjusted EBITDA of the Borrower and its
+Subsidiaries on a consolidated basis as of the last day of the fiscal year
+immediately preceding the date of such transfer, or (iii) the disposition of
+assets for fair market value so long as no Default exists or will be caused to
+occur as a result of such disposition; provided that, in respect of this clause
+(iii), the fair market value of all such assets disposed of by the Borrower and
+its Subsidiaries during any fiscal year shall not exceed fifteen percent (15%)
+of Consolidated Total Assets as of the last day of the immediately preceding
+fiscal year. For the avoidance of doubt, cash and cash equivalents shall not be
+considered assets subject to the provisions of this Section 7.3(a).
+
+(b) Liquidation or Merger. The Borrower shall not, at any time, liquidate or
+dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up,
+or enter into any merger or consolidation, other than (i) a merger or
+consolidation among the Borrower and one or more of its Subsidiaries; provided,
+however, that the Borrower is the surviving Person, (ii) in connection with an
+Acquisition permitted hereunder effected by a merger in which the Borrower is
+the surviving Person, or (iii) a merger or consolidation (including, without
+limitation, in connection with an Acquisition permitted hereunder) among the
+Borrower, on the one hand, and any other Person (including, without limitation,
+an Affiliate), on the other hand, where the surviving Person (if other than the
+Borrower) (A) is a corporation, partnership, or limited liability company
+organized and existing under the laws of the United States of America, any State
+thereof or the District of Columbia and (B) on the effective date of such merger
+or consolidation expressly assumes, by supplemental agreement, executed and
+delivered to the Administrative Agent, for itself and on behalf of the Lenders,
+in form and substance reasonably satisfactory to the Majority Lenders, all the
+Obligations of the Borrower under the Notes, this Agreement and the other Loan
+Documents; provided, however, that, in each case, no Default exists or would be
+caused thereby.
+
+Section 7.4 Restricted Payments. The Borrower shall not, and shall not permit
+any of its Subsidiaries to, make any Restricted Payments; provided, however that
+the Borrower and its Subsidiaries may make any Restricted Payments so long as no
+Default exists or would be caused thereby, and, provided, further that, (a) for
+so long as the Borrower is a REIT, during the continuation of a Default, the
+Borrower and its Subsidiaries may make any Restricted Payments provided they do
+not exceed in the aggregate for any four consecutive fiscal quarters of the
+Borrower occurring from and after September 30, 2013, (i) 95% of Funds From
+Operations for such four fiscal quarter period, or (ii) such greater amount as
+may be required to comply with Section 5.9 or to avoid the imposition of income
+or excise taxes on the Borrower, and (b) the Borrower may make any Restricted
+Payment required to comply with Section 5.9, including, for the avoidance of
+doubt, any Restricted Payment necessary to satisfy the requirements of section
+857(a)(2)(B) of the Code, or any successor provision, or to avoid the imposition
+of any income or excise taxes.
+
+ 
+
+-41-
+
+
+
+--------------------------------------------------------------------------------
+
+Section 7.5 Senior Secured Leverage Ratio. As of the end of each fiscal quarter,
+the Borrower shall not permit the ratio of (i) Senior Secured Debt on such
+calculation date to (ii) Adjusted EBITDA, as of the last day of such fiscal
+quarter, to be greater than 3.00 to 1.00.
+
+Section 7.6 Total Borrower Leverage Ratio.
+
+As of the end of each fiscal quarter, the Borrower shall not permit the ratio of
+(a) Total Debt on such calculation date to (b) Adjusted EBITDA, as of the last
+day of such fiscal quarter to be greater than 6.00 to 1.00; provided that in
+lieu of the foregoing, for any such date occurring after a Qualified Acquisition
+(as defined below) and on or prior to the last day of the fourth full fiscal
+quarter of the Borrower after the consummation of such Qualified Acquisition,
+the Borrower will not permit such ratio as of such date to exceed 7.00 to 1.00.
+
+“Qualified Acquisition” means an Acquisition by the Borrower or any Subsidiary
+which has been designated to the Lenders by an authorized officer of the
+Borrower as a “Qualified Acquisition” so long as, on a pro forma basis after
+giving effect to such Acquisition, the ratio of Total Debt to Adjusted EBITDA as
+of the last day of the most recently ended fiscal quarter of the Borrower (for
+which financial statements have been delivered pursuant to Section 6.1 or 6.2)
+prior to such acquisition would be no less than 5.00 to 1.00; provided that
+(i) no such designation may be made with respect to any Acquisition prior to the
+end of the fourth full fiscal quarter following the completion of the most
+recently consummated Qualified Acquisition unless the ratio of Total Debt to
+Adjusted EBITDA as of the last day of the most recently ended fiscal quarter of
+the Borrower (for which financial statements have been delivered pursuant to
+Section 6.1 or 6.2) prior to the consummation of such Acquisition was no greater
+than 5.50 to 1.00, (ii) the aggregate consideration for such Acquisition
+(including the aggregate principal amount of any Indebtedness assumed thereby)
+is equal to or greater than $850,000,000 and (iii) the Borrower may designate no
+more than three (3) such Acquisitions as a “Qualified Acquisition” during the
+term of this Agreement.
+
+Section 7.7 [Reserved].
+
+Section 7.8 Affiliate Transactions. Except (i) as specifically provided herein
+(including, without limitation, Sections 7.1, 7.3 and 7.4 hereof), (ii)
+investments of cash and cash equivalents in Unrestricted Subsidiaries, and
+(iii) as may be disclosed in the public filings of the Borrower with the
+Securities and Exchange Commission prior to the Agreement Date, the Borrower
+shall not, and shall not permit any of its Subsidiaries to, at any time engage
+in any transaction with an Affiliate, other than between or among the Borrower
+and/or any Subsidiaries of the Borrower or in the ordinary course of business,
+or make an assignment or other transfer of any of its properties or assets to
+any Affiliate, in each case on terms less advantageous in any material respect
+to the Borrower or such Subsidiary than would be the case if such transaction
+had been effected with a non-Affiliate.
+
+Section 7.9 Restrictive Agreements. The Borrower shall not, nor shall the
+Borrower permit any of its Material Subsidiaries to, directly or indirectly,
+enter into, incur or permit to exist any agreement or other arrangement that
+prohibits, restricts or imposes any condition upon the ability of any Material
+Subsidiary of the Borrower to pay dividends or other distributions with respect
+to any shares of its capital stock or to make or repay loans or advances to the
+
+ 
+
+-42-
+
+
+
+--------------------------------------------------------------------------------
+
+Borrower or any other Material Subsidiary of the Borrower; provided that (i) the
+foregoing shall not apply to restrictions and conditions imposed by Applicable
+Law or by any Loan Document, (ii) the foregoing shall not apply to restrictions
+and conditions contained in agreements relating to the sale of a Material
+Subsidiary of the Borrower pending such sale; provided that such restrictions
+and conditions apply only to the Material Subsidiary that is to be sold and such
+sale is permitted hereunder, (iii) the foregoing shall not apply to restrictions
+and conditions contained in any instrument governing Indebtedness or Ownership
+Interests of a Person acquired by the Borrower or any of its Material
+Subsidiaries as in effect at the time of such acquisition (except to the extent
+such Indebtedness was incurred, or such Ownership Interests were issued, in
+connection with or in contemplation of such acquisition), which encumbrance or
+restriction is not applicable to any Person, or the properties or assets of any
+Person, other than the Person or the property or assets of the Person so
+acquired, and any amendments, modifications, restatements, renewals, increases,
+supplements, refundings, replacements or refinancings of those instruments;
+provided that the encumbrances or restrictions contained in any such amendments,
+modifications, restatements, renewals, increases, supplements, refundings,
+replacements or refinancings, taken as whole, are not materially more
+restrictive than the encumbrances or restrictions contained in instruments as in
+effect on the date of acquisition, (iv) the foregoing shall not apply to
+restrictions and conditions on cash or other deposits or net worth imposed by
+customers or lessors under contracts or leases entered into in the ordinary
+course of business, (v) the foregoing shall not apply to restrictions and
+conditions imposed on the transfer of copyrighted or patented materials or other
+intellectual property and customary provisions in agreements that restrict the
+assignment of such agreements or any rights thereunder, (vi) the foregoing shall
+not apply to restrictions and conditions imposed by contracts or leases entered
+into in the ordinary course of business by the Borrower or any of its Material
+Subsidiaries with such Person’s customers, lessors or suppliers and (vii) the
+foregoing shall not apply to restrictions and conditions imposed upon the
+“borrower”, “issuer”, “guarantor”, “pledgor” or “lender” entities under ABS
+Facilities permitted under Section 7.1(h) hereof or which arise in connection
+with any payment default regarding Indebtedness otherwise permitted under
+Section 7.1 hereof.
+
+Section 7.10 Use of Proceeds. The Borrower shall not, nor shall the Borrower
+permit any of its Subsidiaries to, use the proceeds of any Loan directly, or to
+the Borrower’s knowledge indirectly, to fund any operations in, finance any
+investments or activities in, or make any payments to a Designated Person or a
+Sanctioned Country, in violation of Anti-Corruption Laws or in any manner that
+would result in the violation of any Sanctions Laws and Regulations applicable
+to any party hereto.
+
+ARTICLE 8 - DEFAULT
+
+Section 8.1 Events of Default. Each of the following shall constitute an Event
+of Default, whatever the reason for such event and whether it shall be voluntary
+or involuntary or be effected by operation of law or pursuant to any judgment or
+order of any court or any order, rule or regulation of any governmental or
+non-governmental body:
+
+(a) any representation or warranty made under this Agreement shall prove to be
+incorrect in any material respect when made or deemed to be made pursuant to
+Section 4.2 hereof;
+
+ 
+
+-43-
+
+
+
+--------------------------------------------------------------------------------
+
+(b) the Borrower shall default in the payment of (i) any interest hereunder or
+under any of the Notes or fees or other amounts payable to the Lenders and the
+Administrative Agent under any of the Loan Documents, or any of them, when due,
+and such Default shall not be cured by payment in full within five (5) Business
+Days from the due date or (ii) any principal hereunder or under any of the Notes
+when due;
+
+(c) the Borrower or any Material Subsidiary, as applicable, shall default in the
+performance or observance of any agreement or covenant contained in Sections 5.1
+(as to the existence of the Borrower), 5.8, 5.10, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6
+and 7.9 hereof;
+
+(d) the Borrower or any of its Subsidiaries, as applicable, shall default in the
+performance or observance of any other agreement or covenant contained in this
+Agreement not specifically referred to elsewhere in this Section 8.1, and such
+default shall not be cured within a period of thirty (30) days (or with respect
+to Sections 5.3, 5.4, 5.5, 5.6, 6.4, 6.5 and 7.8 hereof, such longer period not
+to exceed sixty (60) days if such default is curable within such period and the
+Borrower is proceeding in good faith with all diligent efforts to cure such
+default) from the later of (i) occurrence of such Default and (ii) the date on
+which such Default became known to the Borrower;
+
+(e) there shall occur any default in the performance or observance of any
+agreement or covenant or breach of any representation or warranty contained in
+any of the Loan Documents (other than this Agreement or as otherwise provided in
+this Section 8.1) by the Borrower, which shall not be cured within a period of
+thirty (30) days (or such longer period not to exceed sixty (60) days if such
+default is curable within such period and the Borrower is proceeding in good
+faith with all diligent efforts to cure such default) from the date on which
+such default became known to the Borrower;
+
+(f) there shall be entered and remain unstayed a decree or order for relief in
+respect of the Borrower or any Material Subsidiary Group under Title 11 of the
+United States Code, as now constituted or hereafter amended, or any other
+applicable Federal or state bankruptcy law or other similar law, or appointing a
+receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
+official of the Borrower or any Material Subsidiary Group, or of any substantial
+part of their respective properties, or ordering the winding-up or liquidation
+of the affairs of the Borrower or any Material Subsidiary Group; or an
+involuntary petition shall be filed against the Borrower or any Material
+Subsidiary Group, and (i) such petition shall not be diligently contested, or
+(ii) any such petition shall continue undismissed or unstayed for a period of
+ninety (90) consecutive days;
+
+(g) the Borrower or any Material Subsidiary Group shall file a petition, answer
+or consent seeking relief under Title 11 of the United States Code, as now
+constituted or hereafter amended, or any other applicable Federal or state
+bankruptcy law or other similar law, or the Borrower or any Material Subsidiary
+Group shall consent to the institution of proceedings thereunder or to the
+filing of any such petition or to the appointment or taking of possession of a
+receiver, liquidator, assignee, trustee, custodian, sequestrator or other
+similar official of the Borrower or any Material Subsidiary Group or of any
+substantial part of their respective properties, or the Borrower or any Material
+Subsidiary Group shall fail generally to pay their
+
+ 
+
+-44-
+
+
+
+--------------------------------------------------------------------------------
+
+respective debts as they become due or shall be adjudicated insolvent; or the
+Borrower or any Material Subsidiary Group shall take any action in furtherance
+of any such action;
+
+(h) a judgment not covered by insurance or indemnification, where the
+indemnifying party has agreed to indemnify and is financially able to do so,
+shall be entered by any court against the Borrower or any Material Subsidiary
+Group for the payment of money which exceeds singly, or in the aggregate with
+other such judgments, $400,000,000, or a warrant of attachment or execution or
+similar process shall be issued or levied against property of the Borrower or
+any Material Subsidiary Group which, together with all other such property of
+the Borrower or any Material Subsidiary Group subject to other such process,
+exceeds in value $400,000,000 in the aggregate, and if, within thirty (30) days
+after the entry, issue or levy thereof, such judgment, warrant or process shall
+not have been paid or discharged or stayed pending appeal or removed to bond, or
+if, after the expiration of any such stay, such judgment, warrant or process,
+shall not have been paid or discharged or removed to bond;
+
+(i) except to the extent that would not reasonably be expected to have a
+Materially Adverse Effect collectively or individually, (i) there shall be at
+any time any “accumulated funding deficiency,” as defined in ERISA or in
+Section 412 of the Code, with respect to any Plan maintained by the Borrower,
+any of its Subsidiaries or any ERISA Affiliate, or to which the Borrower, any of
+its Subsidiaries or any ERISA Affiliate has any liabilities, or any trust
+created thereunder; (ii) a trustee shall be appointed by a United States
+District Court to administer any such Plan; (iii) PBGC shall institute
+proceedings to terminate any such Plan; (iv) the Borrower, any of its
+Subsidiaries or any ERISA Affiliate shall incur any liability to PBGC in
+connection with the termination of any such Plan; or (v) any Plan or trust
+created under any Plan of the Borrower, any of its Subsidiaries or any ERISA
+Affiliate shall engage in a “prohibited transaction” (as such term is defined in
+Section 406 of ERISA or Section 4975 of the Code) which would subject any such
+Plan, any trust created thereunder, any trustee or administrator thereof, or any
+party dealing with any such Plan or trust to material tax or penalty on
+“prohibited transactions” imposed by Section 502 of ERISA or Section 4975 of the
+Code;
+
+(j) there shall occur (i) any acceleration of the maturity of any Indebtedness
+of the Borrower or any Material Subsidiary in an aggregate principal amount
+exceeding $400,000,000, or, as a result of a failure to comply with the terms
+thereof, such Indebtedness shall otherwise have become due and payable prior to
+its scheduled maturity; or (ii) any failure to make any payment when due (after
+any applicable grace period) with respect to any Indebtedness of the Borrower or
+any Material Subsidiary (other than the Obligations) in an aggregate principal
+amount exceeding $400,000,000;
+
+(k) any material Loan Document or any material provision thereof, shall at any
+time and for any reason be declared by a court of competent jurisdiction to be
+null and void, or a proceeding shall be commenced by the Borrower seeking to
+establish the invalidity or unenforceability thereof (exclusive of questions of
+interpretation of any provision thereof), or the Borrower shall deny that it has
+any liability or obligation for the payment of principal or interest purported
+to be created under any Loan Document (other than in accordance with its terms);
+or
+
+(l) there shall occur any Change of Control.
+
+ 
+
+-45-
+
+
+
+--------------------------------------------------------------------------------
+
+Section 8.2 Remedies.
+
+(a) If an Event of Default specified in Section 8.1 (other than an Event of
+Default under Section 8.1(f) or (g) hereof) shall have occurred and shall be
+continuing, the Administrative Agent, at the request of the Majority Lenders but
+subject to Section 9.3 hereof, shall declare the principal of and interest on
+the Loans and the Notes, if any, and all other amounts owed to the Lenders and
+the Administrative Agent under this Agreement, the Notes and any other Loan
+Documents to be forthwith due and payable without presentment, demand, protest
+or other notice of any kind, all of which are hereby expressly waived, anything
+in this Agreement, the Notes or any other Loan Document to the contrary
+notwithstanding.
+
+(b) Upon the occurrence and continuance of an Event of Default specified in
+Section 8.1(f) or (g) hereof, all principal, interest and other amounts due
+hereunder and under the Notes, and all other Obligations, shall thereupon and
+concurrently therewith become due and payable and the principal amount of the
+Loans outstanding hereunder shall bear interest at the Default Rate, all without
+any action by the Administrative Agent, the Lenders, the Majority Lenders or any
+of them, and without presentment, demand, protest or other notice of any kind,
+all of which are expressly waived, anything in this Agreement or in the other
+Loan Documents to the contrary notwithstanding.
+
+(c) Upon acceleration of the Loans, as provided in Section 8.2(a) or (b) hereof,
+the Administrative Agent and the Lenders shall have all of the post-default
+rights granted to them, or any of them, as applicable under the Loan Documents
+and under Applicable Law.
+
+(d) The rights and remedies of the Administrative Agent and the Lenders
+hereunder shall be cumulative, and not exclusive.
+
+Section 8.3 Payments Subsequent to Declaration of Event of Default. Subsequent
+to the acceleration of the Loans under Section 8.2 hereof, payments and
+prepayments under this Agreement made to the Administrative Agent and the
+Lenders or otherwise received by any of such Persons shall be paid over to the
+Administrative Agent (if necessary) and distributed by the Administrative Agent
+as follows: first, to the Administrative Agent’s and the Lenders’ reasonable
+costs and expenses, if any, incurred in connection with the collection of such
+payment or prepayment, including, without limitation, all amounts under
+Section 11.2(b) hereof; second, to the Administrative Agent for any fees
+hereunder or under any of the other Loan Documents then due and payable; third,
+to the Lenders pro rata on the basis of their respective unpaid principal
+amounts (except as provided in Section 2.2(e) hereof), for the payment of any
+unpaid interest which may have accrued on the Obligations and any fees hereunder
+or under any of the other Loan Documents then due and payable; fourth, to the
+Lenders pro rata until all Loans have been paid in full, for the payment of the
+Loans; fifth, to the Lenders pro rata on the basis of their respective unpaid
+amounts, for the payment of any other unpaid Obligations; and sixth, to the
+Borrower or as otherwise required by Applicable Law.
+
+ARTICLE 9 - THE ADMINISTRATIVE AGENT
+
+Section 9.1 Appointment and Authorization. Each of the Lenders hereby
+irrevocably appoints Toronto Dominion (Texas) LLC to act on its behalf as the
+Administrative Agent
+
+ 
+
+-46-
+
+
+
+--------------------------------------------------------------------------------
+
+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 and the Lenders, and the Borrower shall not have rights as a third party
+beneficiary of any of such provisions.
+
+Section 9.2 Rights as a Lender. The Person serving as the Administrative Agent
+hereunder shall have the same rights and powers in its capacity as a Lender as
+any other Lender and may exercise the same as though it were not the
+Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
+expressly indicated or unless the context otherwise requires, include the Person
+serving as the Administrative Agent hereunder in its individual capacity. Such
+Person and its Affiliates may accept deposits from, lend money to, act as the
+financial advisor or in any other advisory capacity for and generally engage in
+any kind of business with the Borrower or any Subsidiary or other Affiliate
+thereof as if such Person were not the Administrative Agent hereunder and
+without any duty to account therefor to the Lenders.
+
+Section 9.3 Exculpatory Provisions. The Administrative Agent shall not have any
+duties or obligations except those expressly set forth herein and in the other
+Loan Documents. Without limiting the generality of the foregoing, the
+Administrative Agent:
+
+(a) shall not be subject to any fiduciary or other implied duties, regardless of
+whether a Default has occurred and is continuing;
+
+(b) shall not have any duty to take any discretionary action or exercise any
+discretionary powers, except discretionary rights and powers expressly
+contemplated hereby or by the other Loan Documents that the Administrative Agent
+is required to exercise as directed in writing by the Majority 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; and
+
+(c) shall not, except as expressly set forth herein and in the other Loan
+Documents, have any duty to disclose, and shall not be liable for the failure to
+disclose, any information relating to the Borrower or any of its Affiliates that
+is communicated to or obtained by the Person serving as the Administrative Agent
+or any of its Affiliates in any capacity.
+
+The Administrative Agent shall not be liable for any action taken or not taken
+by it (i) with the consent or at the request of the Majority 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 11.11 and 8.2) or (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 in writing by the
+Borrower or a Lender.
+
+ 
+
+-47-
+
+
+
+--------------------------------------------------------------------------------
+
+The Administrative Agent shall not be responsible for or have any duty to
+ascertain or inquire into (i) any statement, warranty or representation made in
+or in connection with this Agreement or any other Loan Document, (ii) the
+contents of any certificate, report or other document delivered hereunder or
+thereunder or in connection herewith or therewith, (iii) the performance or
+observance of any of the covenants, agreements or other terms or conditions set
+forth herein or therein or the occurrence of any Default, (iv) the validity,
+enforceability, effectiveness or genuineness of this Agreement, any other Loan
+Document or any other agreement, instrument or document or (v) the satisfaction
+of any condition set forth in Article 3 or elsewhere herein, other than to
+confirm receipt of items expressly required to be delivered to the
+Administrative Agent.
+
+Section 9.4 Reliance by Administrative Agent. The Administrative Agent shall be
+entitled to rely upon, and shall not incur any liability for relying upon, any
+notice, request, certificate, consent, statement, instrument, document or other
+writing (including any electronic message, Internet or intranet website posting
+or other distribution) believed by it to be genuine and to have been signed,
+sent or otherwise authenticated by the proper Person. The Administrative Agent
+also may rely upon any statement made to it orally or by telephone and believed
+by it to have been made by the proper Person, and shall not incur any liability
+for relying thereon. In determining compliance with any condition hereunder to
+the making of a Loan that by its terms must be fulfilled to the satisfaction of
+a Lender, the Administrative Agent may presume that such condition is
+satisfactory to such Lender unless the Administrative Agent shall have received
+notice to the contrary from such Lender prior to the making of such Loan. 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.
+
+Section 9.5 Resignation of Administrative Agent. (a) The Administrative Agent
+may at any time give notice of its resignation to the Lenders and the Borrower.
+Upon receipt of any such notice of resignation, the Majority Lenders shall have
+the right to appoint a successor, which shall (i) be a bank with (A) an office
+in the United States, or an Affiliate of a bank with an office in the United
+States, and (B) combined capital and reserves in excess of $250,000,000 (clauses
+(A) and (B) together, the “Agent Qualifications”) and (ii) so long as no Event
+of Default is continuing, be reasonably acceptable to Borrower. If no such
+successor shall have been so appointed by the Majority Lenders and shall have
+accepted such appointment within 30 days after the retiring Administrative Agent
+gives notice of its resignation (the “Resignation Effective Date”), then the
+retiring Administrative Agent may (but shall not be obligated to), on behalf of
+the Lenders and in consultation with the Borrower, appoint a successor
+Administrative Agent meeting the Agent Qualifications. Whether or not a
+successor has been appointed, such resignation shall become effective in
+accordance with such notice on the Resignation Effective Date.
+
+(a) If the Person serving as Administrative Agent has, (i) become the subject of
+a voluntary proceeding under any bankruptcy or other debtor relief law, (ii) had
+a receiver, conservator, trustee, administrator, assignee for the benefit of
+creditors or similar Person charged with reorganization or liquidation of its
+business or a custodian appointed for it, or (iii) taken any action in
+furtherance of, or indicated its consent to, approval of or acquiescence in any
+voluntary
+
+ 
+
+-48-
+
+
+
+--------------------------------------------------------------------------------
+
+or involuntary proceeding under any bankruptcy or other debtor relief law or any
+such appointment, the Majority Lenders may, to the extent permitted by
+Applicable Law, by notice in writing to the Borrower and such Person remove such
+Person as Administrative Agent and appoint a successor Administrative Agent
+meeting the Agent Qualifications and which, so long as no Event of Default is
+continuing, is reasonably acceptable to Borrower. If no such successor shall
+have been so appointed by the Majority Lenders and shall have accepted such
+appointment within thirty (30) days (or such earlier day as shall be agreed by
+the Majority Lenders) (the “Removal Effective Date”), then such removal shall
+nonetheless become effective in accordance with such notice on the Removal
+Effective Date.
+
+(b) With effect from, as applicable, the Resignation Effective Date or the
+Removal Effective Date (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 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 directly, until
+such time as the Majority 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). 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 Sections 11.2 and 11.5 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.
+
+Section 9.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
+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 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.
+
+Section 9.7 Indemnification. The Lenders severally, and not jointly, agree to
+indemnify the Administrative Agent (to the extent not reimbursed by the Borrower
+but without affecting the Borrower’s obligations with respect thereto) pro rata,
+from and against any and all liabilities, obligations, losses (other than the
+loss of principal, interest and fees hereunder in the event of a bankruptcy or
+out-of-court ‘work-out’ of the Loans), damages, penalties, actions,
+
+ 
+
+-49-
+
+
+
+--------------------------------------------------------------------------------
+
+judgments, suits, or reasonable out-of-pocket costs, expenses (including,
+without limitation, fees and disbursements of experts, agents, consultants and
+counsel), or disbursements of any kind or nature whatsoever which may be imposed
+on, incurred by or asserted against the Administrative Agent in any way relating
+to or arising out of this Agreement, any other Loan Document, or any other
+document contemplated by this Agreement or any other Loan Document or any action
+taken or omitted by the Administrative Agent under this Agreement, any other
+Loan Document, or any other document contemplated by this Agreement, except that
+no Lender shall be liable to the Administrative Agent for any portion of such
+liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
+or reasonable out-of-pocket costs, expenses or disbursements resulting from the
+gross negligence or willful misconduct of the Administrative Agent as determined
+by a final, non-appealable judicial order of a court having jurisdiction over
+the subject matter.
+
+Section 9.8 No Responsibilities of the Agents. Notwithstanding any provision to
+the contrary contained elsewhere herein or in any other Loan Document, the
+Co-Syndication Agents, the Joint Lead Arrangers and the Joint Bookrunners (as
+set forth on the cover page hereof) shall not have any duties or
+responsibilities, nor shall the Co-Syndication Agents, the Joint Lead Arrangers
+or Joint Bookrunners have or be deemed to have any fiduciary relationship with
+any Lender or participant, and no implied covenants, functions,
+responsibilities, duties, obligations or liabilities shall be read into this
+Agreement or any other Loan Document or otherwise exist against the
+Co-Syndication Agents, the Joint Lead Arrangers or Joint Bookrunners.
+
+Section 9.9 Lender ERISA Matters. Each Lender represents and warrants as of the
+date hereof to the Administrative Agent and each Joint Lead Arranger and their
+respective Affiliates, and not, for the avoidance of doubt, for the benefit of
+the Borrower, that such Lender is not and will not be (i) an employee benefit
+plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975
+of the Internal Revenue Code; (iii) an entity deemed to hold “plan assets” of
+any such plans or accounts for purposes of ERISA or the Internal Revenue Code
+that is using “plan assets” of any such plans or accounts to fund or hold Loans
+or perform its obligations under this Agreement; or (iv) a “governmental plan”
+within the meaning of ERISA.
+
+ARTICLE 10 - CHANGES IN CIRCUMSTANCES
+
+AFFECTING LIBOR ADVANCES AND INCREASED COSTS
+
+Section 10.1 LIBOR Basis Determination Inadequate or Unfair.
+
+(1) If with respect to any proposed LIBOR Advance for any Interest Period,
+(a) the Majority Lenders notify the Administrative Agent that the Eurodollar
+Rate for any Interest Period for such Advance will not adequately reflect the
+cost to such Lenders of making, funding or maintaining their LIBOR Advances for
+such Interest Period, or (b) the Administrative Agent determines after
+consultation with the Lenders that adequate and fair means do not exist for
+determining the LIBOR Basis, the Administrative Agent shall forthwith give
+notice thereof to the Borrower and the Lenders, whereupon until the
+Administrative Agent notifies the Borrower that the circumstances giving rise to
+such situation no longer exist, the obligations of any affected Lender to make
+its portion of such LIBOR Advances shall be suspended and each affected Lender
+shall make its portion of such LIBOR Advance as a Base Rate Advance.
+
+ 
+
+-50-
+
+
+
+--------------------------------------------------------------------------------
+
+(2) If at any time the Administrative Agent determines (which determination
+shall be conclusive absent manifest error) that (i) the circumstances set forth
+in clause (1)(b) have arisen and such circumstances are unlikely to be temporary
+or (ii) the circumstances set forth in clause (1)(b) have not arisen but either
+(w) the supervisor for the administrator of LIBOR has made a public statement
+that the administrator of LIBOR is insolvent (and there is no successor
+administrator that will continue publication of LIBOR), (x) the administrator of
+LIBOR has made a public statement identifying a specific date after which LIBOR
+will permanently or indefinitely cease to be published by it (and there is no
+successor administrator that will continue publication of LIBOR), (y) the
+supervisor for the administrator of LIBOR has made a public statement
+identifying a specific date after which LIBOR will permanently or indefinitely
+cease to be published or (z) the supervisor for the administrator of LIBOR or a
+governmental authority having jurisdiction over the Administrative Agent has
+made a public statement identifying a specific date after which LIBOR may no
+longer be used for determining interest rates for loans, then the Administrative
+Agent and the Borrower shall endeavor to establish an alternate rate of interest
+to LIBOR that gives due consideration to the then prevailing market convention
+for determining a rate of interest for syndicated loans in the United States at
+such time, and shall enter into an amendment to this Agreement to reflect such
+alternate rate of interest and such other related changes to this Agreement as
+may be applicable; provided that, if such alternate rate of interest as so
+determined would be less than zero, such rate shall be deemed to be zero for the
+purposes of this Agreement. Notwithstanding anything to the contrary in
+Section 11.11, such amendment shall become effective without any further action
+or consent of any other party to this Agreement so long as the Administrative
+Agent shall not have received, within five Business Days of the date such
+amendment is provided to the Lenders, a written notice from the Majority Lenders
+stating that such Majority Lenders object to such amendment. Until an alternate
+rate of interest shall be determined in accordance with this clause (2) (but, in
+the case of the circumstances described in clause (ii)(w), clause (ii)(x) or
+clause (ii)(y) of the first sentence of this Section 10.1(2), only to the extent
+LIBOR for such Interest Period is not available or published at such time on a
+current basis), (x) any Request for Advance requesting a Conversion of any Base
+Rate Advance to, or continuation of any Base Rate Advance as, a LIBOR Advance
+shall be ineffective and (y) if any Request for Advance requests a LIBOR
+Advance, such Advance shall be made as an Base Rate Advance.
+
+Section 10.2 Illegality. If, after the date hereof, the adoption of any
+Applicable Law, or any change in any Applicable Law (whether adopted before or
+after the Agreement Date), or any change in interpretation or administration
+thereof by any governmental authority, central bank or comparable agency charged
+with the interpretation or administration thereof, or compliance by any Lender
+with any directive (whether or not having the force of law) of any such
+authority, central bank or comparable agency, shall make it unlawful or
+impossible for any Lender to make, maintain or fund its portion of such LIBOR
+Advances, such Lender shall so notify the Administrative Agent, and the
+Administrative Agent shall forthwith give notice thereof to the other Lenders
+and the Borrower. Before giving any notice to the Administrative Agent pursuant
+to this Section 10.2, such Lender shall designate a different lending office if
+such designation will avoid the need for giving such notice and will not, in the
+sole reasonable judgment of such Lender, be otherwise materially disadvantageous
+to such Lender. Upon receipt of such notice,
+
+ 
+
+-51-
+
+
+
+--------------------------------------------------------------------------------
+
+notwithstanding anything contained in Article 2 hereof, the Borrower shall
+Convert such LIBOR Advance to a Base Rate Advance on either (a) the last day of
+the then current Interest Period applicable to such affected LIBOR Advance if
+such Lender may lawfully continue to maintain and fund its portion of such LIBOR
+Advance to such day or (b) immediately if such Lender may not lawfully continue
+to fund and maintain its portion of such affected LIBOR Advance to such day.
+
+Section 10.3 Increased Costs and Additional Amounts.
+
+(a) If after the date hereof, the adoption of any Applicable Law, or any change
+in any Applicable Law (whether adopted before or after the Agreement Date), or
+any interpretation or change in interpretation or administration thereof by any
+governmental authority, central bank or comparable agency charged with the
+interpretation or administration thereof or compliance by any Lender with any
+directive issued after the Agreement Date (whether or not having the force of
+law) of any such authority, central bank or comparable agency:
+
+(i) shall subject any Lender to any Tax with respect to its obligation to make
+its portion of LIBOR Advances, or its portion of other Advances, or shall change
+the basis of taxation of payments to any Lender of the principal of or interest
+on its portion of LIBOR Advances or in respect of any other amounts due under
+this Agreement, or its obligation to make its portion of Advances (except for
+changes with respect to Taxes imposed on the revenues or net income of such
+Lender, and except for any Taxes referred to in Section 10.3(b) hereof); or
+
+(ii) shall impose, modify or deem applicable any reserve (including, without
+limitation, any imposed by the Board of Governors of the Federal Reserve System,
+but excluding any included in an applicable Eurodollar Reserve Percentage),
+special deposit, capital adequacy or liquidity, assessment or other requirement
+or condition against assets of, deposits with or for the account of, or
+commitments or credit extended by, any Lender or shall impose on any Lender or
+the London interbank borrowing market any other condition affecting its
+obligation to make its portion of such LIBOR Advances or its portion of existing
+Advances;
+
+and the result of any of the foregoing is to increase the cost to such Lender of
+making or maintaining any of its portion of such LIBOR Advances, or to reduce
+the amount of any sum received or receivable by such Lender under this Agreement
+or under its Note, if any, with respect thereto, then, within ten (10) days
+after demand by such Lender, the Borrower agrees to pay to such Lender such
+additional amount or amounts as will compensate such Lender on an after-tax
+basis for such increased costs; 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 enacted, adopted or issued after the date hereof,
+regardless of the date enacted, adopted or issued.
+
+ 
+
+-52-
+
+
+
+--------------------------------------------------------------------------------
+
+(b) Except as required by Applicable Law, all payments made by the Borrower
+under this Agreement shall be made free and clear of, and without deduction or
+withholding for or on account of, any present or future income or other similar
+taxes, levies, imposts, duties, charges, fees, deductions or withholdings
+(“Taxes”), now or hereafter imposed, levied, collected, withheld or assessed by
+any governmental authority, excluding any Taxes imposed on a Lender by reason of
+any connection between the Lender and the taxing jurisdiction other than a
+connection that is solely attributable to executing, delivering, performing or
+enforcing this Agreement and receiving payments hereunder. If any such
+non-excluded Taxes (collectively, the “Non-Excluded Taxes”) are required to be
+withheld or deducted from any such payment, the Borrower shall pay such
+additional amounts as may be necessary to ensure that the net amount actually
+received by a Lender after such withholding or deduction is equal to the amount
+that the Lender would have received had no such withholding or deduction been
+required; provided, however, that the Borrower shall not be required to increase
+any such amounts payable to any Lender if such Lender fails to comply with the
+requirements of Section 2.12 hereof, provided, further, that the Borrower shall
+not be required to pay any additional amounts in respect of Taxes imposed under
+FATCA, provided, further, that the Borrower shall not be required to pay any
+U.S. withholding Taxes imposed on amounts payable to or for the account of any
+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 or (ii) such Lender changes its lending office,
+except, in each case, to the extent that, pursuant to this Section 10.3, 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. Whenever any Non-Excluded
+Taxes are payable by the Borrower, as promptly as possible thereafter the
+Borrower shall send to the Administrative Agent for its own account or for the
+account of such Lender, as the case may be, a certified copy of an original
+official receipt received by the Borrower showing payment thereof. If the
+Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
+authority or fail to remit to the Administrative Agent the required receipts or
+other documentary evidence, the Borrower shall indemnify the Administrative
+Agent and the Lenders for any incremental taxes, interest or penalties that may
+become payable by the Administrative Agent or any Lender as result of any such
+failure. The Borrower shall make any payments required pursuant to the
+immediately preceding sentence within thirty (30) days after receipt of written
+demand therefor from the Administrative Agent or any Lender, as the case may be.
+The agreements set forth in this Section 10.3 shall survive the termination of
+this Agreement and the payment of the Obligations. Each Lender will promptly
+notify the Borrower and the Administrative Agent of any event of which it has
+knowledge, occurring after the date hereof, which will entitle such Lender to
+compensation pursuant to this Section 10.3 and will designate a different
+lending office if such designation will avoid the need for, or reduce the amount
+of, such compensation and will not, in the reasonable judgment of such Lender
+made in good faith, be otherwise disadvantageous to such Lender.
+
+(c) Any Lender claiming compensation under this Section 10.3 shall provide the
+Borrower with a written certificate setting forth the additional amount or
+amounts to be paid to it hereunder and calculations therefor in reasonable
+detail. Such certificate shall be presumptively correct absent manifest error.
+In determining such amount, such Lender may use any reasonable averaging and
+attribution methods (it being understood that no Lender shall be required to
+disclose (i) any confidential or price sensitive information or (ii) any
+information to
+
+ 
+
+-53-
+
+
+
+--------------------------------------------------------------------------------
+
+the extent prohibited by applicable law). Failure or delay on the part of any
+Lender to demand compensation pursuant to the foregoing provisions of this
+Section 10.3 shall not constitute a waiver of such Lender’s right to demand such
+compensation, provided that, other than in respect of Taxes, the Borrower shall
+not be required to compensate a Lender pursuant to the foregoing provisions of
+this Section if the circumstances giving rise to such compensation occurred more
+than six (6) months prior to the date that such Lender notifies the Borrower of
+such circumstances and of such Lender’s intention to claim compensation therefor
+(except that, if such circumstances are retroactive, then the six (6) month
+period referred to above shall be extended to include the period of retroactive
+effect thereof). If any Lender demands compensation under this Section 10.3, the
+Borrower may at any time, upon at least five (5) Business Days’ prior notice to
+such Lender, Convert into a Base Rate Advance such Lender’s portion of the then
+outstanding LIBOR Advances, and pay to such Lender the accrued interest and fees
+thereon to the date of Conversion, along with any reimbursement required under
+Section 2.9 hereof and this Section 10.3.
+
+(d) The Borrower shall pay any present or future stamp, transfer or documentary
+Taxes or any other excise or property Taxes that may be imposed in connection
+with the execution, delivery or registration of this Agreement or any other Loan
+Documents.
+
+(e) If any party receives a refund of any Taxes for which it has been
+indemnified pursuant to this Section 10.3, it shall pay to the indemnifying
+party an amount equal to such refund (but only to the extent of indemnity
+payments made under this Section with respect to the Taxes giving rise to such
+refund), net of all out-of-pocket expenses (including Taxes) of such indemnified
+party and without interest (other than any interest paid by the relevant
+governmental authority with respect to such refund). Such indemnifying party,
+upon the request of such indemnified party, shall repay to such indemnified
+party the amount paid over pursuant to this paragraph (e) (plus any penalties,
+interest or other charges imposed by the relevant governmental authority) in the
+event that such indemnified party is required to repay such refund to such
+governmental authority. Notwithstanding anything to the contrary in this
+paragraph (e), in no event will the indemnified party be required to pay any
+amount to an indemnifying party pursuant to this paragraph (e) the payment of
+which would place the indemnified party in a less favorable net after-Tax
+position than the indemnified party would have been in if the Tax subject to
+indemnification and giving rise to such refund had not been deducted, withheld
+or otherwise imposed and the indemnification payments or additional amounts with
+respect to such Tax had never been paid. This paragraph shall not be construed
+to require any indemnified party to make available its Tax returns (or any other
+information relating to its Taxes that it deems confidential) to the
+indemnifying party or any other Person.
+
+Section 10.4 Effect On Other Advances. If notice has been given pursuant to
+Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any Lender to
+make its portion of any LIBOR Advance, or requiring such Lender’s portion of
+LIBOR Advances to be Converted, then, unless and until such Lender notifies the
+Borrower that the circumstances giving rise to such Conversion no longer apply,
+all amounts which would otherwise be made by such Lender as its portion of LIBOR
+Advances shall be made instead as Base Rate Advances, unless otherwise notified
+by the Borrower.
+
+ 
+
+-54-
+
+
+
+--------------------------------------------------------------------------------
+
+Section 10.5 Claims for Increased Costs and Taxes; Replacement Lenders. In the
+event that any Lender shall (y) decline to make LIBOR Advances pursuant to
+Sections 10.1 and 10.2 hereof, or (z) have notified the Borrower that it is
+entitled to claim compensation pursuant to Section 10.3, 2.8, 2.9 or 2.11 hereof
+or is unable to complete the form required or is subject to withholding on
+account of any Tax (each such lender being an “Affected Lender”), the Borrower
+at its own cost and expense may designate a replacement lender (a “Replacement
+Lender”) to purchase the outstanding Loans of such Affected Lender and such
+Affected Lender’s rights hereunder and with respect thereto, and within ten
+(10) Business Days of such designation the Affected Lender shall (a) sell to
+such Replacement Lender, without recourse upon, warranty by or expense to such
+Affected Lender, by way of an Assignment and Assumption substantially in the
+form of Exhibit F attached hereto, for a purchase price equal to (unless such
+Lender agrees to a lesser amount) the outstanding principal amount of the Loans
+of such Affected Lender, plus all interest accrued and unpaid thereon and all
+other amounts owing to such Affected Lender hereunder, including without
+limitation, payment by the Borrower of any amount which would be payable to such
+Affected Lender pursuant to Section 2.9 hereof (provided that the administrative
+fee set forth in Section 11.4(b)(iv) shall not apply to an assignment described
+in this clause (a)), and (b) upon such assumption and purchase by the
+Replacement Lender, such Replacement Lender shall be deemed to be a “Lender” for
+purposes of this Agreement and such Affected Lender shall cease to be a “Lender”
+for purposes of this Agreement and shall no longer have any obligations or
+rights hereunder (other than any obligations or rights which according to this
+Agreement shall survive the termination of this Agreement).
+
+ARTICLE 11 - MISCELLANEOUS
+
+Section 11.1 Notices.
+
+(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 or the Administrative Agent, to the address, telecopier
+number, electronic mail address or telephone number specified for such Person on
+Schedule 4; and
+
+(ii) if to any other Lender, to the address, telecopier number, electronic mail
+address or telephone number specified to the Administrative Agent (including, as
+appropriate, notices delivered solely to the Person designated by a Lender 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
+
+ 
+
+-55-
+
+
+
+--------------------------------------------------------------------------------
+
+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
+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 and the Borrower, provided that the foregoing shall not
+apply to notices to any Lender pursuant to Article 2 if such Lender has notified
+the Administrative Agent and 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 or any other
+Person for losses, claims, damages, liabilities or expenses of any kind (whether
+in tort, contract or otherwise) arising out of the Borrower’s or the
+Administrative Agent’s transmission of Borrower Materials through the Internet,
+except to the extent that such losses, claims, damages, liabilities or expenses
+are determined by a court of competent jurisdiction by a final and nonappealable
+judgment to have resulted from the gross negligence or willful misconduct of
+such Agent Party; provided, however, that in no event shall any Agent Party have
+any liability to the Borrower, any Lender or any other Person for indirect,
+special, incidental, consequential or punitive damages (as opposed to direct or
+actual damages).
+
+ 
+
+-56-
+
+
+
+--------------------------------------------------------------------------------
+
+(d) Change of Address, Etc. Each of the Borrower and the Administrative Agent
+may change its 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, telecopier or telephone number for notices and
+other communications hereunder by notice to the Borrower and the Administrative
+Agent. 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 and Lenders. The Administrative Agent and
+the Lenders shall be entitled to rely and act upon any notices purportedly given
+by or on behalf of the Borrower even if (i) such notices were not made in a
+manner specified herein, were incomplete or were not preceded or followed by any
+other form of notice specified herein, or (ii) the terms thereof, as understood
+by the recipient, varied from any confirmation thereof. The Borrower shall
+indemnify the Administrative Agent, each Lender and the Related Parties of each
+of them from all losses, costs, expenses and liabilities resulting from the
+reliance by such Person on each notice purportedly given by or on behalf of the
+Borrower. All telephonic notices to and other telephonic communications with the
+Administrative Agent may be recorded by the Administrative Agent, and each of
+the parties hereto hereby consents to such recording.
+
+Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
+
+(a) all reasonable and documented out-of-pocket expenses of the Administrative
+Agent in connection with the preparation, negotiation, execution and delivery of
+this Agreement and the other Loan Documents, and the transactions contemplated
+hereunder and thereunder any amendments, waivers and consents associated
+therewith, including, without limitation, the reasonable and documented fees and
+disbursements of Shearman & Sterling LLP, special counsel for the Administrative
+Agent; and
+
+(b) all documented out-of-pocket costs and expenses of the Administrative Agent
+and the Lenders of enforcement under this Agreement or the other Loan Documents
+and all documented out-of-pocket costs and expenses of collection if an Event of
+Default occurs in the payment of the Notes, which in each case shall include,
+without limitation, reasonable fees and out-of-pocket expenses of one counsel
+for the Administrative Agent and one counsel for all Lenders.
+
+Section 11.3 Waivers. The rights and remedies of the Administrative Agent and
+the Lenders under this Agreement and the other Loan Documents shall be
+cumulative and not
+
+ 
+
+-57-
+
+
+
+--------------------------------------------------------------------------------
+
+exclusive of any rights or remedies which they would otherwise have. No failure
+or delay by the Administrative Agent, the Majority Lenders and the Lenders, or
+any of them, in exercising any right, shall operate as a waiver of such right.
+No waiver of any provision of this Agreement or consent to any departure by the
+Borrower or any of its Subsidiaries therefrom shall in any event be effective
+unless the same shall be permitted by Section 11.11, and then such waiver or
+consent shall be effective only in the specific instance and for the purpose for
+which given. Without limiting the generality of the foregoing, the making of a
+Loan shall not be construed as a waiver of any Default, regardless of whether
+the Administrative Agent or any Lender may have had notice or knowledge of such
+Default at the time.
+
+Section 11.4 Assignment and Participation.
+
+(a) Successors and Assigns Generally. The provisions of this Agreement shall be
+binding upon and inure to the benefit of the parties hereto and their respective
+successors and assigns permitted hereby, except that the Borrower may not assign
+or otherwise transfer any of its rights or obligations hereunder without the
+prior written consent of the Administrative Agent and each Lender and no Lender
+may assign or otherwise transfer any of its rights or obligations hereunder
+except (i) to an assignee in accordance with the provisions of subsection (b) of
+this Section, (ii) by way of participation in accordance with the provisions of
+subsection (d) of this Section, (iii) by way of pledge or assignment of a
+security interest subject to the restrictions of subsection (e) of this Section,
+or (iv) to an SPC in accordance with the provisions 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 and
+the Lenders) any legal or equitable right, remedy or claim under or by reason of
+this Agreement.
+
+(b) Assignments by Lenders. Any Lender may at any time assign to one or more
+assignees all or a portion of its rights and obligations under this Agreement
+(including all or a portion of the 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 Loans at
+the time owing to the assigning Lender or in the case of an assignment to a
+Lender, an Affiliate of a Lender, 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 principal outstanding balance of the Loans of the
+assigning Lender subject to each such assignment, determined as of the date the
+Assignment and Assumption with respect to such assignment is delivered to the
+Administrative Agent or, if “Trade Date” is specified in the Assignment and
+Assumption, as of the Trade Date, shall not be less than
+
+ 
+
+-58-
+
+
+
+--------------------------------------------------------------------------------
+
+$1,000,000 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 assigned;
+
+(iii) Required Consents. No consent shall be required for any assignment except
+to the extent required by subsection (b)(i)(B) of this Section and, in addition:
+
+(A) the consent of the Borrower (such consent not to be unreasonably withheld or
+delayed) shall be required unless (1) an Event of Default has occurred and is
+continuing at the time of such assignment or (2) such assignment is to a Lender
+or an Affiliate of a Lender; and
+
+(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 or an Affiliate of such Lender;
+
+(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 in form and substance reasonably satisfactory to the
+Administrative Agent.
+
+(v) No Assignment to Certain Persons. No such assignment shall be made (A) to
+the Borrower or any of the Borrower’s Affiliates or (B) to a natural person.
+
+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 10.2, 10.3 and 10.5 with respect to
+facts and circumstances occurring prior to the effective date of such
+assignment. 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.
+
+ 
+
+-59-
+
+
+
+--------------------------------------------------------------------------------
+
+(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 principal amounts of the Loans owing to each
+Lender pursuant to the terms hereof from time to time (the “Register”). The
+entries in the Register shall be conclusive, absent manifest error, and the
+Borrower, the Administrative Agent and the Lenders may treat each Person whose
+name is recorded in the Register pursuant to the terms hereof as a Lender
+hereunder for all purposes of this Agreement, notwithstanding notice to the
+contrary. This Section 11.4(c) shall be construed so that the Obligations are at
+all times maintained in “registered form” within the meaning of Sections 163(f),
+871(h)(2) and 881(c)(2) of the Code and any related regulations (and any other
+relevant or successor provisions of the Code or Treasury Regulations promulgated
+thereunder). The Register shall be available for inspection by the Borrower and
+any Lender, as to its Commitments only, at any reasonable time and from time to
+time upon reasonable prior notice.
+
+(d) Participations. Any Lender may at any time, without the consent of, or
+notice to, the Borrower or the Administrative Agent, sell participations to any
+Person (other than a natural person or the Borrower or any of the Borrower’s
+Affiliates) (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 the 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 and the Lenders shall continue to deal solely
+and directly with such Lender in connection with such Lender’s rights and
+obligations under this Agreement.
+
+Any agreement or instrument pursuant to which a Lender sells such a
+participation shall provide that such Lender shall retain the sole right to
+enforce this Agreement and to approve any amendment, modification or waiver of
+any provision of this Agreement; provided that such agreement or instrument may
+provide that such Lender will not, without the consent of the Participant, agree
+to any amendment, waiver or other modification described in clauses (ii)(A), (B)
+or (C) of Section 11.11(a) that affects such Participant. Subject to the
+following paragraph, the Borrower agrees that each Participant shall be entitled
+to the benefits of Section 10.3 to the same extent as if it were a Lender and
+had acquired its interest by assignment pursuant to subsection (b) of this
+Section.
+
+A Participant shall not be entitled to receive any greater payment under
+Section 10.3 than the applicable Lender would have been entitled to receive with
+respect to the participation sold to such Participant. A Participant that would
+be a foreign Lender if it were a Lender shall not be entitled to the benefits of
+Section 2.12 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 2.12 as though it were a Lender. Each Lender that sells a
+participation shall, acting solely for this purpose as a non-fiduciary agent of
+the Borrower, maintain a register on which it enters the name and address of
+each participant and the principal amounts (and stated interest) of each
+participant’s interest in the Loans or other obligations under this Agreement
+(the “Participant Register”); provided that no Lender shall have any obligation
+to disclose all or any portion of the Participant Register to any Person
+(including the identity of any participant or any information relating to a
+participant’s interest in any Commitments, Loans, or its other obligations under
+
+ 
+
+-60-
+
+
+
+--------------------------------------------------------------------------------
+
+any Loan Document) except each Lender that sells a participation shall make a
+copy of the Participant Register available for the Borrower and the
+Administrative Agent to the extent that such disclosure is necessary to
+establish that such Commitment, Loan 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 the
+Borrower, the Lenders and the Administrative Agent 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.
+
+(e) Certain Pledges. Any Lender may at any time pledge or assign a security
+interest in all or any portion of its rights under this Agreement (including
+under its Note, if any) to secure obligations of such Lender, including any
+pledge or assignment to secure obligations to a Federal Reserve Bank or other
+central banking authority; 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.
+
+(f) Notwithstanding anything to the contrary contained herein, any Lender (a
+“Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”)
+sponsored by such Granting Lender, identified as such in writing from time to
+time by the Granting Lender to the Administrative Agent and the Borrower, the
+option to provide to the Borrower all or any part of any Advance that such
+Granting Lender would otherwise be obligated to make to the Borrower pursuant to
+this Agreement; provided that (i) nothing herein shall constitute a commitment
+by any SPC to make any Advance and (ii) if an SPC elects not to exercise such
+option or otherwise fails to provide all or any part of such Advance, the
+Granting Lender shall be obligated to make such Advance pursuant to the terms
+hereof. The Loans by an SPC hereunder shall be Loans of the Granting Lender to
+the same extent, and as if, such Loans were made by such Granting Lender. Each
+party hereto hereby agrees that no SPC shall be liable for any indemnity or
+similar payment obligation under this Agreement (all liability for which shall
+remain with the Granting Lender). In furtherance of the foregoing, each party
+hereto hereby agrees (which agreement shall survive the termination of this
+Agreement) that, prior to the date that is one year and one day after the
+payment in full of all outstanding commercial paper or other senior indebtedness
+of any SPC, it, solely in its capacity as a party hereto and to any other Loan
+Document, will not institute against, or join any other person in instituting
+against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
+liquidation proceedings under the laws of the United States or any State
+thereof. In addition, notwithstanding anything to the contrary contained in this
+Section 11.4, any SPC may (i) with notice to, but without the prior written
+consent of, the Borrower and the Administrative Agent and without paying any
+processing fee therefor, assign all or a portion of its interests in any Advance
+to the Granting Lender or to any financial institutions (consented to by the
+Borrower and the Administrative Agent) providing liquidity and/or credit support
+to or for the account of such SPC to support the funding or maintenance of
+Advance and (ii) disclose on a confidential basis any non-public information
+relating to its Loans to any rating agency, commercial paper dealer or provider
+of any surety, guarantee or credit or liquidity enhancement to such SPC. This
+Section 11.4(f) may not be amended without the written consent of any SPC which
+has been designated in writing as provided in the first sentence hereof and
+holds any outstanding Loans. The designation by a Granting Lender of an SPC to
+fund Advances shall be deemed to be a representation, warranty, covenant and
+agreement by such Granting Lender to the Borrower and all other parties
+hereunder
+
+ 
+
+-61-
+
+
+
+--------------------------------------------------------------------------------
+
+that (A) the funding and maintaining of such Advances by such SPC shall not
+constitute a “prohibited transaction” (as such term is defined in Section 406 of
+ERISA or Section 4975 of the Code), and (B) such designation, funding and
+maintenance would not result in any interest requiring registration under the
+Securities Act of 1933, as amended, or qualification under any state securities
+law. The SPC shall from time to time provide to the Borrower the tax and other
+forms required pursuant to Section 2.12 hereof with respect to such SPC as
+though such SPC were a Lender hereunder. In no event shall the Borrower or any
+Lender other than the Granting Lender be obligated hereunder to pay any
+additional amounts under any provision of this Agreement (pursuant to Article 10
+hereof or otherwise) by reason of a Granting Lender’s designation of an SPC or
+the funding or maintenance of Advances by such SPC, in excess of amounts which
+the Borrower would have been obligated to pay if such Granting Lender had not
+made such designation and such Granting Lender were itself funding and
+maintaining such Advances. The Administrative Agent shall register the interest
+of any SPC in an Advance from time to time on the Register maintained pursuant
+to Section 11.4(c) hereof.
+
+Section 11.5 Indemnity. The Borrower agrees to indemnify and hold harmless each
+Lender, the Administrative Agent and each of their respective Related Parties
+(any of the foregoing shall be an “Indemnitee”) from and against any and all
+claims, liabilities, obligations, losses, damages, actions, reasonable and
+documented external attorneys’ fees and expenses (as such fees and expenses are
+reasonably incurred), penalties, judgments, suits, reasonable and documented
+out-of-pocket costs and demands by any third party, including the costs of
+investigating and defending such claims, whether or not the Borrower or the
+Person seeking indemnification is the prevailing party (a) resulting from any
+breach or alleged breach by the Borrower of any representation or warranty made
+hereunder or under any Loan Document; or (b) otherwise arising out of (i) this
+Agreement, any Loan Document or any transaction contemplated hereby or thereby,
+including, without limitation, the use of the proceeds of Loans hereunder in any
+fashion by the Borrower or the performance of its obligations under the Loan
+Documents, (ii) allegations of any participation by a Lender, the Administrative
+Agent or any of them, in the affairs of the Borrower or any of its Subsidiaries,
+or allegations that any of them has any joint liability with the Borrower for
+any reason and (iii) any claims against the Lenders, the Administrative Agent or
+any of them, by any shareholder or other investor in or lender to the Borrower,
+by any brokers or finders or investment advisers or investment bankers retained
+by the Borrower or by any other third party, arising out of or under this
+Agreement, except to the extent that (A) the Person seeking indemnification
+hereunder is determined in such case to have acted with gross negligence or
+willful misconduct, in any case, by a final, non-appealable judicial order of a
+court of competent jurisdiction or (B) such claims are for lost profits,
+foreseeable and unforeseeable, consequential, special, incidental or indirect
+damages or punitive damages. Upon receipt of notice in writing of any actual or
+prospective claim, litigation, investigation or proceeding for which
+indemnification is provided pursuant to the immediately preceding sentence (a
+“Relevant Proceeding”), the recipient shall promptly notify the Administrative
+Agent (which shall promptly notify the other parties hereto) thereof, and the
+Borrower and the Lenders agree to consult, to the extent appropriate, with a
+view to minimizing the cost to the Borrower of its obligations hereunder. The
+Borrower shall be entitled, to the extent feasible, to participate in any
+Relevant Proceeding and shall be entitled to assume the defense thereof with
+counsel of the Borrower’s choice; provided, however, that such counsel shall be
+reasonably satisfactory to such of the Indemnitees as are parties thereto;
+provided, further, however, that, after the Borrower has assumed the defense of
+any Relevant Proceeding, it will not settle,
+
+ 
+
+-62-
+
+
+
+--------------------------------------------------------------------------------
+
+compromise or consent to the entry of any order adjudicating or otherwise
+disposing of any claims against any Indemnitee (1) if such settlement,
+compromise or order involves the payment of money damages, except if the
+Borrower agrees, as between the Borrower and such Indemnitee, to pay such money
+damages, and, if not simultaneously paid, to furnish such Indemnitee with
+satisfactory evidence of its ability to pay the same, and (2) if such
+settlement, compromise or order involves any relief against such Indemnitee
+other than the payment of money damages, except with the prior written consent
+of such Indemnitee (which consent shall not be unreasonably withheld).
+Notwithstanding the Borrower’s election to assume the defense of such Relevant
+Proceeding, such of the Indemnitees as are parties thereto shall have the right
+to employ separate counsel and to participate in the defense of such action or
+proceeding at the expense of such Indemnitee. The obligations of the Borrower
+under this Section 11.5 are in addition to, and shall not otherwise limit, any
+liabilities which the Borrower might otherwise have in connection with any
+warranties or similar obligations of the Borrower in any other Loan Document.
+Notwithstanding the foregoing, this Section 11.5 shall not apply with respect to
+Taxes other than any Taxes that represent losses, claims, damages, etc. arising
+from any non-Tax claim.
+
+Section 11.6 Counterparts. This Agreement may be executed in any number of
+counterparts, each of which shall be deemed to be an original, but all such
+separate counterparts shall together constitute one and the same instrument. The
+words “execution,” “signed,” “signature,” and words of like import in this
+Agreement shall be deemed to include electronic signatures or the keeping of
+records in electronic form, each of which shall be of the same legal effect,
+validity or enforceability as a manually executed signature or the use of a
+paper-based recordkeeping system, as the case may be, to the extent and as
+provided for in any applicable law, including the Federal Electronic Signatures
+in Global and National Commerce Act, the New York State Electronic Signatures
+and Records Act, or any other similar state laws based on the Uniform Electronic
+Transactions Act; provided, further, that, without limiting the foregoing, upon
+the request of the Administrative Agent, any electronic signature shall be
+promptly followed by such manually executed counterpart.
+
+Section 11.7 Governing Law; Jurisdiction.
+
+(a) Governing Law. This Agreement and the Notes shall be construed in accordance
+with and governed by the internal laws of the State of New York applicable to
+agreements made and to be performed the State of New York.
+
+(b) Jurisdiction. The Borrower irrevocably and unconditionally agrees that it
+will not commence any action, litigation or proceeding of any kind or
+description, whether in law or equity, whether in contract or in tort or
+otherwise, against the Administrative Agent, any Lender, or any Related Party of
+the foregoing in any way relating to this Agreement or any other Loan Document
+or the transactions relating hereto or thereto, in any forum other than the
+courts of the State of New York sitting in New York County, and of the United
+States District Court of the Southern District of New York, and any appellate
+court from any thereof, and each of the parties hereto irrevocably and
+unconditionally submits to the jurisdiction of such courts and agrees that all
+claims in respect of any such action, litigation or proceeding may be heard and
+determined in such New York State court or, to the fullest extent permitted by
+applicable law, in such federal court. Each of the parties hereto agrees that a
+final judgment in any such action,
+
+ 
+
+-63-
+
+
+
+--------------------------------------------------------------------------------
+
+litigation or proceeding shall be conclusive and may be enforced in other
+jurisdictions by suit on the judgment or in any other manner provided by law.
+Nothing in this Agreement or in any other Loan Document shall affect any right
+that the Administrative Agent or any Lender 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. The Borrower irrevocably and unconditionally waives, to the
+fullest extent permitted by applicable law, any objection that it may now or
+hereafter have to the laying of venue of any action or proceeding arising out of
+or relating to this Agreement or any other Loan Document in any court referred
+to in paragraph (b) of this Section. Each of the parties hereto hereby
+irrevocably waives, to the fullest extent permitted by applicable law, the
+defense of an inconvenient forum to the maintenance of such action or proceeding
+in any such court.
+
+(d) Service of Process. Each party hereto irrevocably consents to service of
+process in the manner provided for notices in Section 11.1. Nothing in this
+Agreement will affect the right of any party hereto to serve process in any
+other manner permitted by applicable law.
+
+Section 11.8 Severability. To the extent permitted by law, any provision of this
+Agreement which is prohibited or unenforceable in any jurisdiction shall be
+ineffective to the extent of such prohibition or unenforceability without
+invalidating the remaining provisions hereof in that jurisdiction or affecting
+the validity or enforceability of such provision in any other jurisdiction.
+
+Section 11.9 Interest.
+
+(a) In no event shall the amount of interest due or payable hereunder or under
+the Notes exceed the maximum rate of interest allowed by Applicable Law, and in
+the event any such payment is inadvertently made by the Borrower or
+inadvertently received by the Administrative Agent or any Lender, then such
+excess sum shall be credited as a payment of principal, unless, if no Event of
+Default shall have occurred and be continuing, the Borrower shall notify the
+Administrative Agent or such Lender, in writing, that it elects to have such
+excess sum returned forthwith. It is the express intent hereof that the Borrower
+not pay and the Administrative Agent and the Lenders not receive, directly or
+indirectly in any manner whatsoever, interest in excess of that which may
+legally be paid by the Borrower under Applicable Law.
+
+(b) Notwithstanding the use by the Lenders of the Base Rate and the Eurodollar
+Rate as reference rates for the determination of interest on the Loans, the
+Lenders shall be under no obligation to obtain funds from any particular source
+in order to charge interest to the Borrower at interest rates related to such
+reference rates.
+
+Section 11.10 Table of Contents and Headings. The Table of Contents and the
+headings of the various subdivisions used in this Agreement are for convenience
+only and shall not in any way modify or amend any of the terms or provisions
+hereof, nor be used in connection with the interpretation of any provision
+hereof.
+
+ 
+
+-64-
+
+
+
+--------------------------------------------------------------------------------
+
+Section 11.11 Amendment and Waiver.
+
+(a) Neither this Agreement nor any Loan Document nor any term hereof or thereof
+may be amended orally, nor may any provision hereof or thereof be waived orally
+but only by an instrument in writing signed by or at the written direction of:
+
+(i) except as set forth in (ii) and (iii) below, the Majority Lenders and, in
+the case of any amendment, by the Borrower;
+
+(ii) with respect to (A) any increase in the amount of any Lender’s portion of
+the Commitments or any extension of the Lender’s Commitments, (B) any reduction
+in the rate of, or postponement in the payment of any interest or fees due
+hereunder or the payment thereof to any Lender without a corresponding payment
+of such interest or fee amount by the Borrower, (C) (1) any waiver of any
+Default due to the failure by the Borrower to pay any sum due to any of the
+Lenders hereunder or (2) any reduction in the principal amount of the Loans
+without a corresponding payment, (D) any release of the Borrower from this
+Agreement, except in connection with a merger, sale or other disposition
+otherwise permitted hereunder (in which case, such release shall require no
+further approval by the Lenders), (E) any amendment to the pro rata treatment of
+the Lenders set forth in Section 8.3 hereof, (F) any amendment of this Section
+11.11, of the definition of Majority Lenders, or of any Section herein to the
+extent that such Section requires action by all Lenders, (G) any subordination
+of the Loans in full to any other Indebtedness, or (H) any extension of the Term
+Loan Maturity Date, the affected Lenders and in the case of an amendment, the
+Borrower, (it being understood that, for purposes of this Section 11.11(a)(ii),
+changes to provisions of the Loan Documents that relate only to one or more of
+the Loans shall be deemed to “affect” only the Lenders holding such Loans); and
+
+(iii) no amendment, waiver or consent shall, unless in writing and signed by the
+Administrative Agent in addition to the Lenders required above to take such
+action, affect the rights or duties of the Administrative Agent under this
+Agreement or any other Loan Document.
+
+(b) 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.
+
+(c) In connection with any proposed amendment, modification, waiver or
+termination (a “Proposed Change”) requiring the consent of all Lenders, if the
+consent of Majority Lenders is obtained, but the consent of the other Lenders
+whose consent is required is not obtained (any such Lender whose consent is not
+obtained being referred to as a “Non-
+
+ 
+
+-65-
+
+
+
+--------------------------------------------------------------------------------
+
+Consenting Lender”), then, at the Borrower’s request (and at the Borrower’s sole
+cost and expense), a Replacement Lender selected by the Borrower and reasonably
+acceptable to the Administrative Agent, shall have the right to purchase from
+such Non-Consenting Lenders, and such Non-Consenting Lenders agree that they
+shall, upon the Borrower’s request, sell and assign to such Person, all of the
+Loans of such Non-Consenting Lenders for an amount equal to the principal
+balance of all Loans held by the Non-Consenting Lenders and all accrued interest
+and fees and other amounts due (including without limitation amounts due to such
+Non-Consenting Lender pursuant to Section 2.9 hereof) or outstanding to such
+Non-Consenting Lender through the date of sale, such purchase and sale to be
+consummated pursuant to an executed Assignment and Assumption substantially in
+the form on Exhibit F attached hereto. Upon execution of any Assignment and
+Assumption pursuant to this Section 11.11(b), (i) the Replacement Lender shall
+be entitled to vote on any pending waiver, amendment or consent in lieu of the
+Non-Consenting Lender replaced by such Replacement Lender, (ii) such Replacement
+Lender shall be deemed to be a “Lender” for purposes of this Agreement and
+(iii) such Non-Consenting Lender shall cease to be a “Lender” for purposes of
+this Agreement and shall no longer have any obligations or rights hereunder
+(other than any obligations or rights which according to this Agreement shall
+survive the termination of the Loans).
+
+Section 11.12 Entire Agreement. Except as otherwise expressly provided herein,
+this Agreement, the other Loan Documents and the other documents described or
+contemplated herein or therein will embody the entire agreement and
+understanding among the parties hereto and thereto and supersede all prior
+agreements and understandings relating to the subject matter hereof and thereof.
+
+Section 11.13 Other Relationships; No Fiduciary Relationships. No relationship
+created hereunder or under any other Loan Document shall in any way affect the
+ability of the Administrative Agent and each Lender to enter into or maintain
+business relationships with the Borrower or any Affiliate thereof beyond the
+relationships specifically contemplated by this Agreement and the other Loan
+Documents. The Borrower agrees that in connection with all aspects of the
+transactions contemplated hereby and any communications in connection therewith,
+the Borrower, its Subsidiaries and their respective Affiliates, on the one hand,
+and the Administrative Agent, the Lenders and their respective Affiliates, on
+the other hand, will have a business relationship that does not create, by
+implication or otherwise, any fiduciary duty on the part of the Administrative
+Agent, any Lender or any of their respective Affiliates, and no such duty will
+be deemed to have arisen in connection with any such transactions or
+communications.
+
+Section 11.14 Directly or Indirectly. If any provision in this Agreement refers
+to any action taken or to be taken by any Person, or which such Person is
+prohibited from taking, such provision shall be applicable whether such action
+is taken directly or indirectly by such Person, whether or not expressly
+specified in such provision.
+
+Section 11.15 Reliance on and Survival of Various Provisions. All covenants,
+agreements, statements, representations and warranties made by the Borrower
+herein or in any certificate delivered pursuant hereto shall (a) be deemed to
+have been relied upon by the Administrative Agent and each of the Lenders
+notwithstanding any investigation heretofore or hereafter made by them and
+(b) survive the execution and delivery of this Agreement and shall continue in
+full force and effect so long as any Loans are outstanding and unpaid. Any right
+to
+
+ 
+
+-66-
+
+
+
+--------------------------------------------------------------------------------
+
+indemnification hereunder, including, without limitation, rights pursuant to
+Sections 2.9, 2.11, 10.3, 11.2 and 11.5 hereof, shall survive the termination of
+this Agreement and the payment and performance of all Obligations.
+
+Section 11.16 Senior Debt. The Obligations are intended by the parties hereto to
+be senior in right of payment to any Indebtedness of the Borrower that by its
+terms is subordinated to any other Indebtedness of the Borrower.
+
+Section 11.17 Obligations. The obligations of the Administrative Agent and each
+of the Lenders hereunder are several, not joint.
+
+Section 11.18 Confidentiality. The Administrative Agent and the Lenders shall
+hold confidentially all non-public and proprietary information and all other
+information designated by the Borrower as confidential, in each case, obtained
+from the Borrower or its Affiliates pursuant to the requirements of this
+Agreement in accordance with their customary procedures for handling
+confidential information of this nature and in accordance with safe and sound
+lending practices; provided, however, that the Administrative Agent and the
+Lenders may make disclosure of any such information (a) to their examiners,
+Affiliates, outside auditors, counsel, consultants, appraisers, agents, other
+professional advisors, any credit insurance provider relating to the Borrower
+and its obligations and any direct or indirect contractual counterparty in swap
+agreements or such counterparty’s professional advisor in connection with this
+Agreement or as reasonably required by any proposed syndicate member or any
+proposed transferee or participant in connection with the contemplated transfer
+of any Note or participation therein (including, without limitation, any pledgee
+referred to in Section 11.4(e) hereof), in each case, so long as any such Person
+(other than any examiners) receiving such information is advised of the
+provisions of this Section 11.18 and agrees to be bound thereby, (b) as required
+or requested by any governmental authority or self-regulatory body or
+representative thereof or in connection with the enforcement hereof or of any
+Loan Document or related document or (c) pursuant to legal process or with
+respect to any litigation between or among the Borrower and any of the
+Administrative Agent or the Lenders. In no event shall the Administrative Agent
+or any Lender be obligated or required to return any materials furnished to it
+by the Borrower. The foregoing provisions shall not apply to the Administrative
+Agent or any Lender with respect to information that (i) is or becomes generally
+available to the public (other than through the Administrative Agent or such
+Lender), (ii) is already in the possession of the Administrative Agent or such
+Lender on a non-confidential basis, or (iii) comes into the possession of the
+Administrative Agent or such Lender from a source other than the Borrower or its
+Affiliates in a manner not known to the Administrative Agent or such Lender to
+involve a breach of a duty of confidentiality owing to the Borrower or its
+Affiliates.
+
+Section 11.19 USA PATRIOT ACT Notice. 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.
+
+ 
+
+-67-
+
+
+
+--------------------------------------------------------------------------------
+
+Section 11.20 Acknowledgement and Consent to Bail-In of Affected Financial
+Institutions. Notwithstanding anything to the contrary in this Agreement, any
+Loan Document or in any other agreement, arrangement or understanding among any
+such parties, each party hereto acknowledges that any liability of any Affected
+Financial Institution arising under any Loan Document, to the extent such
+liability is unsecured, may be subject to the Write-Down and Conversion Powers
+of the applicable Resolution Authority and agrees and consents to, and
+acknowledges and agrees to be bound by:
+
+(a) the application of any Write-Down and Conversion Powers by the applicable
+Resolution Authority to any such liabilities arising hereunder which may be
+payable to it by any party hereto that is an Affected Financial Institution; and
+
+(b) the effects of any Bail-In Action on any such liability, including, if
+applicable:
+
+(i) a reduction in full or in part or cancellation of any such liability;
+
+(ii) a conversion of all, or a portion of, such liability into shares or other
+instruments of ownership in such Affected Financial Institution, its parent
+entity, or a bridge institution that may be issued to it or otherwise conferred
+on it, and that such shares or other instruments of ownership will be accepted
+by it in lieu of any rights with respect to any such liability under this
+Agreement; or
+
+(iii) the variation of the terms of such liability in connection with the
+exercise of the Write-Down and Conversion Powers of the applicable Resolution
+Authority.
+
+Section 11.21 Right of Set-off. If an Event of Default shall have occurred and
+be continuing, each Lender and each of their respective Affiliates is hereby
+authorized at any time and from time to time, to the fullest extent permitted by
+applicable law, to set off and apply any and all deposits (general or special,
+time or demand, provisional or final, in whatever currency) at any time held,
+and other obligations (in whatever currency) at any time owing, by such Lender
+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 its
+Affiliates, irrespective of whether or not such Lender or Affiliate shall have
+made any demand under this Agreement or any other Loan Document and although
+such obligations of the Borrower may be contingent or unmatured or are owed to a
+branch, office or Affiliate of such Lender different from the branch, office or
+Affiliate holding such deposit or obligated on such indebtedness; provided that
+in the event that any Defaulting Lender shall exercise any such right of setoff,
+(x) all amounts so set off shall be paid over immediately to the Administrative
+Agent for further application in accordance with the provisions of Section 2.14
+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
+Advances owing to such Defaulting Lender as to which it exercised such right of
+setoff. The rights of each Lender and their respective Affiliates under this
+Section are in addition to other rights and remedies (including other rights of
+setoff) that such Lender or its
+
+ 
+
+-68-
+
+
+
+--------------------------------------------------------------------------------
+
+Affiliates may have. Each Lender 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.
+
+ARTICLE 12 - WAIVER OF JURY TRIAL
+
+Section 12.1 Waiver of Jury Trial. EACH OF THE BORROWER AND THE ADMINISTRATIVE
+AGENT AND THE LENDERS, HEREBY AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE
+AND HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR
+PROCEEDING OF ANY TYPE IN WHICH THE BORROWER, ANY OF THE LENDERS, THE
+ADMINISTRATIVE AGENT, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A
+PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
+AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG
+THE PARTIES LISTED IN THIS SECTION 12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY
+TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
+LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR
+CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
+DAMAGES. EACH PARTY TO THIS AGREEMENT (A) CERTIFIES THAT NO REPRESENTATIVE,
+AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS REPRESENTED,
+EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER WOULD NOT,
+IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
+(B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
+OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
+CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY
+DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
+EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
+PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
+INSTANCES.
+
+[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
+
+ 
+
+-69-
+
+
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused it
+to be executed by their duly authorized officers, all as of the day and year
+first above written.
+
+ 
+
+BORROWER:     AMERICAN TOWER CORPORATION     By:  
+
+/s/ Rodney M. Smith
+
+      Name: Rodney M. Smith       Title: Executive Vice President, Chief
+Financial Officer and Treasurer
+
+ 
+
+[Signature Page to Term Loan Agreement]
+
+
+
+--------------------------------------------------------------------------------
+
+ADMINISTRATIVE AGENT AND LENDERS:     TORONTO DOMINION (TEXAS) LLC,
+as Administrative Agent     By:  
+
+/s/ Angela Del Duca
+
+      Name: Angela Del Duca
+      Title: Authorized Signatory     THE TORONTO-DOMINION BANK, NEW YORK
+BRANCH,
+as a Lender     By:  
+
+/s/ Angela Del Duca
+
+      Name: Angela Del Duca
+      Title: Authorized Signatory     COBANK ACB,
+as a Lender     By:  
+
+/s/ Gary Franke
+
+      Name: Gary Franke       Title: Managing Director     SANTANDER BANK, N.A.,
+as a Lender     By:  
+
+/s/ Pablo Urgoiti
+
+      Name: Pablo Urgoiti       Title: Managing Director     By:  
+
+/s/ Nuno Dias Andrade
+
+      Name: Nuno Dias Andrade       Title: Managing Director     MORGAN STANLEY
+BANK, N.A.,
+as a Lender     By:  
+
+/s/ Julie Lilienfeld
+
+      Name: Julie Lilienfeld
+      Title: Authorized Signatory
+
+ 
+
+[Signature Page to Term Loan Agreement]
+
+
+
+--------------------------------------------------------------------------------
+
+    MUFG UNION BANK, N.A.,
+as a Lender     By:  
+
+/s/ Marlon Mathews
+
+      Name: Marlon Mathews
+      Title: Director     THE BANK OF NOVA SCOTIA,
+as a Lender     By:  
+
+/s/ Joseph Ward
+
+      Name: Joseph Ward       Title: Managing Director     BANCO BILBAO VIZCAYA
+ARGENTARIA, S.A. NEW YORK BRANCH,
+as a Lender     By:  
+
+/s/ Brian Crowley
+
+      Name: Brian Crowley       Title: Managing Director     By:  
+
+/s/ Miriam Trautmann
+
+      Name: Miriam Trautmann       Title: Senior Vice President     CITIBANK,
+N.A.,
+as a Lender     By:  
+
+/s/ Keith Lukasavich
+
+      Name: Keith Lukasavich
+      Title: Vice President & Managing Director     COMMERZBANK AG, NEW YORK
+BRANCH,
+as a Lender     By:  
+
+/s/ Mathew Ward
+
+      Name: Mathew Ward       Title: Director     By:  
+
+/s/ Robert Sullivan
+
+      Name: Robert Sullivan       Title: Vice President
+
+ 
+
+[Signature Page to Term Loan Agreement]
+
+
+
+--------------------------------------------------------------------------------
+
+    SUMITOMO MITSUI BANKING CORPORATION
+as a Lender     By:  
+
+/s/ Michael Maguire
+
+      Name: Michael Maguire       Title: Managing Director     BANK OF AMERICA,
+N.A.,
+as a Lender     By:   /s/ Kyle Oberkrom      
+
+Name: Kyle Oberkrom
+
+      Title: Vice President     GOLDMAN SACHS BANK USA,
+as a Lender     By:  
+
+/s/ Rebecca Kratz
+
+      Name: Rebecca Kratz       Title: Authorized Signatory
+
+ 
+
+[Signature Page to Term Loan Agreement]
+
+
+
+--------------------------------------------------------------------------------
+
+SCHEDULE 1
+
+COMMITMENTS
+
+ 
+
+Lender
+
+   Term Loan
+Commitment  
+
+The Toronto-Dominion Bank, New York Branch
+
+   $ 250,000,000  
+
+CoBank, ACB
+
+   $ 175,000,000  
+
+Santander Bank, N.A.
+
+   $ 150,000,000  
+
+Morgan Stanley Bank, N.A.
+
+   $ 50,000,000  
+
+MUFG Union Bank, N.A.
+
+   $ 50,000,000  
+
+The Bank of Nova Scotia
+
+   $ 100,000,000  
+
+Banco Bilbao Vizcaya Argentaria, S.A. New York Branch
+
+   $ 75,000,000  
+
+Citibank, N.A.
+
+   $ 75,000,000  
+
+Commerzbank AG, New York Branch
+
+   $ 75,000,000  
+
+Sumitomo Mitsui Banking Corporation
+
+   $ 75,000,000  
+
+Bank of America, N.A.
+
+   $ 50,000,000  
+
+Goldman Sachs Bank USA
+
+   $ 15,000,000     
+
+ 
+
+ 
+
+ 
+
+Total:
+
+   $ 1,140,000,000     
+
+ 
+
+ 
+
+ 
+
+
+
+--------------------------------------------------------------------------------
+
+SCHEDULE 2
+
+EXISTING ABS FACILITIES
+
+$1,300.0 million aggregate principal amount of Secured Tower Revenue Securities,
+Series 2013-2, Subclass A and $500.0 million aggregate principal amount of
+Secured Tower Revenue Securities, Series 2018-1, Subclass A issued by the
+American Tower Trust I
+
+$350.0 million aggregate principal amount of American Tower Secured Revenue
+Notes, Series 2015-1, Class A and $525.0 million aggregate principal amount
+American Tower Secured Revenue Notes, Series 2015-2, Class A issued by GTP
+Acquisition Partners I, LLC
+
+
+
+--------------------------------------------------------------------------------
+
+SCHEDULE 3
+
+SUBSIDIARIES ON THE AGREEMENT DATE
+
+10 Presidential Way Associates, LLC
+
+ACC Tower Sub, LLC
+
+Adquisiciones y Proyectos Inalámbricos, S. de R. L. de C.V.
+
+Alternative Networking LLC
+
+American Tower Asset Sub II, LLC
+
+American Tower Asset Sub, LLC
+
+American Tower Charitable Foundation, Inc.
+
+American Tower Delaware Corporation
+
+American Tower Depositor Sub, LLC
+
+American Tower do Brasil - Cessão de Infraestruturas Ltda.
+
+American Tower do Brasil – Communicação Multimídia Ltda.
+
+American Tower Guarantor Sub, LLC
+
+American Tower Holding Sub, LLC
+
+American Tower Holding Sub II, LLC
+
+American Tower International Holding I LLC
+
+American Tower International Holding II LLC
+
+American Tower International, Inc.
+
+American Tower Investments LLC
+
+American Tower LLC
+
+American Tower Management, LLC
+
+American Tower Mauritius
+
+American Tower, L.P.
+
+American Tower Servicios Fibra, S. de R.L. de C.V.
+
+American Tower Tanzania Operations Limited
+
+American Towers LLC
+
+AT Kenya C.V.
+
+AT Netherlands C.V.
+
+AT Netherlands Coöperatief U.A.
+
+AT Sao Paulo C.V.
+
+AT Sher Netherlands Coöperatief U.A.
+
+AT South America C.V.
+
+ATC Africa Holding B.V.
+
+ATC Africa Shared Services (Pty) Ltd
+
+ATC Antennas Holding LLC
+
+ATC Antennas LLC
+
+ATC Argentina Coöperatief U.A.
+
+ATC Argentina C.V.
+
+ATC Argentina Holding LLC
+
+ATC Asia Pacific Pte. Ltd.
+
+ATC Atlantic C.V.
+
+ATC Atlantic II B.V.
+
+ATC Backhaul LLC
+
+ATC Brasil – Serviços de Conectividades Ltda.
+
+
+
+--------------------------------------------------------------------------------
+
+ATC Brazil Holding LLC
+
+ATC Brazil I LLC
+
+ATC Brazil II LLC
+
+ATC Chile Holding LLC
+
+ATC Colombia B.V.
+
+ATC Colombia Holding I LLC
+
+ATC Colombia Holding LLC
+
+ATC Colombia I LLC
+
+ATC CSR Foundation India
+
+ATC Ecuador Holding LLC
+
+ATC Edge LLC
+
+ATC EH GmbH & Co. KG
+
+ATC Europe B.V.
+
+ATC Europe LLC
+
+ATC European Holdings, Inc.
+
+ATC Fibra de Colombia, S.A.S.
+
+ATC France SAS
+
+ATC France Coöperatief U.A.
+
+ATC France Holding SAS
+
+ATC France Holding II SAS
+
+ATC France Réseaux SAS
+
+ATC France Services SAS
+
+ATC Germany Holdings GmbH
+
+ATC Germany Services GmbH
+
+ATC GP GmbH
+
+ATC Global Employment B.V.
+
+ATC Heston B.V.
+
+ATC Holding Fibra Mexico S. de R.L. DE C.V.
+
+ATC India Infrastructure Private Limited
+
+ATC Indoor DAS Holding LLC
+
+ATC Indoor DAS LLC
+
+ATC International Coöperatief U.A.
+
+ATC International Financing B.V.
+
+ATC International Financing II B.V.
+
+ATC International Financing II Holding LLC
+
+ATC International Holding Corp.
+
+ATC IP LLC
+
+ATC Iris I LLC
+
+ATC Kenya Operations Limited
+
+ATC Kenya Services Limited
+
+ATC Latin America S.A. de C.V., SOFOM, E.N.R.
+
+ATC Managed Sites Holding LLC
+
+ATC Managed Sites LLC
+
+ATC MexHold LLC
+
+ATC Mexico Holding LLC
+
+ATC Nigeria Coöperatief U.A.
+
+
+
+--------------------------------------------------------------------------------
+
+ATC Nigeria C.V.
+
+ATC Nigeria Holding LLC
+
+ATC Nigeria Wireless Infrastructure Limited
+
+ATC On Air + LLC
+
+ATC Operations LLC
+
+ATC Outdoor DAS, LLC
+
+ATC Paraguay Holding LLC
+
+ATC Paraguay S.R.L.
+
+ATC Peru Holding LLC
+
+ATC Ponderosa B-I LLC
+
+ATC Ponderosa B-II LLC
+
+ATC Ponderosa K LLC
+
+ATC Ponderosa K-R LLC
+
+ATC Sequoia LLC
+
+ATC Sitios de Chile S.A.
+
+ATC Sitios de Colombia S.A.S.
+
+ATC Sitios del Peru S.R.L.
+
+ATC Sitios Infraco S.A.S.
+
+ATC South Africa Investment Holdings (Proprietary) Limited
+
+ATC South Africa Wireless Infrastructure (Pty) Ltd
+
+ATC South Africa Wireless Infrastructure II (Pty) Ltd
+
+ATC South America Holding LLC
+
+ATC South LLC
+
+ATC Tanzania Holding LLC
+
+ATC Telecom Infrastructure Private Limited
+
+ATC Tower (Ghana) Limited
+
+ATC Tower Services LLC
+
+ATC TRS I LLC
+
+ATC TRS II LLC
+
+ATC TRS III LLC
+
+ATC Uganda Limited
+
+ATC Watertown LLC
+
+ATC WiFi LLC
+
+ATS-Needham LLC
+
+Blue Transfer Sociedad Anonima
+
+California Tower, Inc.
+
+Cell Site NewCo II, LLC
+
+Cell Tower Lease Acquisition LLC
+
+Central States Tower Holdings, LLC
+
+CNC2 Associates, LLC
+
+Colo ATL, LLC
+
+Comunicaciones y Consumos S.A.
+
+Connectivity Infrastructure Services Limited
+
+DCS Tower Sub, LLC
+
+Eaton Towers Burkina Faso S.A.
+
+Eaton Towers Ghana Limited
+
+
+
+--------------------------------------------------------------------------------
+
+Eaton Towers Ghana (M) Limited
+
+Eaton Towers Holdings Limited
+
+Eaton Towers Kenya Limited
+
+Eaton Towers (Lilongwe) Limited
+
+Eaton Towers Limited
+
+Eaton Towers Niger S.A.
+
+Eaton Towers Uganda Limited
+
+Eure-et-Loir Réseaux Mobiles SAS
+
+Ghana Tower InterCo B.V.
+
+Global Tower Assets III, LLC
+
+Global Tower Assets, LLC
+
+Global Tower Holdings, LLC
+
+Global Tower Services, LLC
+
+Global Tower, LLC
+
+Goodison One Hundred Twenty Limited
+
+Gondola Tower Holdings LLC
+
+GrainComm I, LLC
+
+GrainComm II, LLC
+
+GrainComm III, LLC
+
+GrainComm V, LLC
+
+GrainComm Marketing, LLC
+
+Grain Communications REIT II, Inc.
+
+Grain HoldCo, LLC
+
+Grain HoldCo Parent, LLC
+
+GTP Acquisition Partners I, LLC
+
+GTP Acquisition Partners II, LLC
+
+GTP Acquisition Partners III, LLC
+
+GTP Costa Rica Finance, LLC
+
+GTP Infrastructure I, LLC
+
+GTP Infrastructure II, LLC
+
+GTP Infrastructure III, LLC
+
+GTP Investments LLC
+
+GTP LATAM Holdings B.V.
+
+GTP LatAm Holdings Coöperatieve U.A.
+
+GTP Operations CR, S.R.L.
+
+GTP South Acquisitions II, LLC
+
+GTP Structures I, LLC
+
+GTP Structures II, LLC
+
+GTP Structures III, LLC
+
+GTP Torres CR, S.R.L.
+
+GTP Towers Costa Rica Holdcorp S.R.L.
+
+GTP Towers I, LLC
+
+GTP Towers II, LLC
+
+GTP Towers III, LLC
+
+GTP Towers IV, LLC
+
+GTP Towers IX, LLC
+
+
+
+--------------------------------------------------------------------------------
+
+GTP Towers V, LLC
+
+GTP Towers VII, LLC
+
+GTP Towers VIII, LLC
+
+GTP TRS I LLC
+
+GTPI HoldCo, LLC
+
+Haysville Towers, LLC
+
+JT Communications, LLC
+
+Lap do Brasil Empreendimentos Imobiliários Ltda
+
+LAP Inmobiliaria Limitada
+
+Loxel SAS
+
+MATC Digital, S. de R.L. de C.V.
+
+MATC Fibraoptica, S. de R.L. de C.V.
+
+MATC Infraestructura, S. de R.L. de C.V.
+
+MATC Servicios, S. de R.L. de C.V.
+
+MHB Tower Rentals of America, LLC
+
+MC New Macland Properties, LLC
+
+MCSU Properties, LLC
+
+Municipal Bay, LLC
+
+Municipal-Bay Holdings, LLC
+
+New Towers LLC
+
+PCS Structures Towers, LLC
+
+Red Spires Asset Sub, LLC
+
+Richland Towers, LLC
+
+RSA Media, Inc.
+
+Southeast Network Access Point, LLC
+
+SpectraSite Communications, LLC
+
+SpectraSite, LLC
+
+T8 Ulysses Site Management LLC
+
+Tower Management, Inc.
+
+Towers of America, L.L.L.P.
+
+Transcend Infrastructure Holdings Pte. Ltd.
+
+Transcend Towers Infrastructure (Philippines), Inc.
+
+Uganda Tower Interco B.V.
+
+Ulysses Asset Sub I, LLC
+
+Ulysses Asset Sub II, LLC
+
+UniSite, LLC
+
+UniSite/Omnipoint FL Tower Venture, LLC
+
+UniSite/Omnipoint NE Tower Venture, LLC
+
+UniSite/Omnipoint PA Tower Venture, LLC
+
+Verus Management One, LLC
+
+
+
+--------------------------------------------------------------------------------
+
+SCHEDULE 4
+
+AGENT’S OFFICE;
+
+CERTAIN ADDRESSES FOR NOTICES
+
+BORROWER:
+
+American Tower Corporation
+
+116 Huntington Avenue
+
+Boston, MA 02116
+
+Attention: Treasurer (or General Counsel if legal notice)
+
+Telephone:                     
+
+Fax: 617-375-7575
+
+Website Address: www.americantower.com
+
+U.S. Taxpayer Identification Number:                     
+
+AGENT:
+
+Administrative Agent’s Office
+
+(for payments and Requests for Credit Extensions):
+
+Toronto Dominion (Texas) LLC
+
+Attention: Administrative Agent
+
+Telephone: N/A
+
+Telecopier: 416 982 5535
+
+Electronic Mail:                     
+
+Wire Instructions for Payments:
+
+ 
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT A
+
+FORM OF REQUEST FOR ADVANCE
+
+Date: [                    ], 20[    ]
+
+ 
+
+To:
+
+Toronto Dominion (Texas) LLC, as Administrative Agent
+
+Ladies and Gentlemen:
+
+Reference is made to that certain Term Loan Agreement, to be dated as of
+                    , 2020 (as amended, restated, extended, supplemented or
+otherwise modified in writing from time to time, the “Agreement;” the terms
+defined therein being used herein as therein defined), by and among American
+Tower Corporation, a Delaware corporation (the “Borrower”), the Lenders from
+time to time party thereto and Toronto Dominion (Texas) LLC, as Administrative
+Agent.
+
+The undersigned hereby requests (select one):
+
+☐  An Advance of Loans                      ☐  A conversion or continuation of
+Loans
+
+ 
+
+  1.
+
+On                                          (a Business Day).
+
+ 
+
+  2.
+
+In the amount of $                .
+
+ 
+
+  3.
+
+Comprised of                                                  .
+
+[type of Advance requested]
+
+ 
+
+  4.
+
+For LIBOR Advances: with an Interest Period of      months with a maturity date
+of                     .
+
+The Borrower hereby represents and warrants that the conditions specified in
+Section 3.1 of the Agreement shall be satisfied on and as of the date of the
+Advance.
+
+This letter agreement shall be governed by, and construed in accordance with,
+the laws of the State of New York.
+
+ 
+
+AMERICAN TOWER CORPORATION, a Delaware corporation By:  
+
+ 
+
+Name:  
+
+ 
+
+Title:  
+
+ 
+
+ 
+
+A-1
+
+Form of Request for Advance
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT B
+
+[Reserved]
+
+ 
+
+B-1
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT C
+
+FORM OF NOTE
+
+$                    
+
+FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
+                     or registered assigns (the “Lender”), in accordance with
+the provisions of the Agreement (as hereinafter defined), the principal amount
+of                      made by the Lender to the Borrower under that certain
+Term Loan Agreement, dated as of                     , 2020 (as amended,
+restated, extended, supplemented or otherwise modified in writing from time to
+time, the “Agreement;” the terms defined therein being used herein as therein
+defined), among the Borrower, the Lenders from time to time party thereto, and
+Toronto Dominion (Texas) LLC, as Administrative Agent.
+
+The Borrower promises to pay interest on the unpaid principal amount of the Loan
+made by the Lender from the date of such Loan until such principal amount is
+paid in full, at such interest rates and at such times as provided in the
+Agreement. All payments of principal and interest shall be made to the
+Administrative Agent for the account of the Lender in Dollars in immediately
+available funds at the Administrative Agent’s Office. If any amount is not paid
+in full when due hereunder, such unpaid amount shall bear interest, to be paid
+upon demand, from the due date thereof until the date of actual payment (and
+before as well as after judgment) computed at the per annum rate set forth in
+the Agreement.
+
+This promissory note is one of the Notes referred to in the Agreement, is
+entitled to the benefits thereof and may be prepaid in whole or in part subject
+to the terms and conditions provided therein. Upon the occurrence and
+continuation of one or more of the Events of Default specified in the Agreement,
+all amounts then remaining unpaid on this Note shall become, or may be declared
+to be, immediately due and payable all as provided in the Agreement. The Loan
+made by the Lender shall be evidenced by a loan account or record maintained by
+the Lender in the ordinary course of business. The Lender may also attach a
+schedule to this Note and endorse thereon the date, amount and maturity of its
+Loan and payments with respect thereto.
+
+The Borrower, for itself, its successors and assigns, hereby waives diligence,
+presentment, protest and demand and notice of protest, demand, dishonor and
+non-payment of this Note.
+
+ 
+
+C-1
+
+Form of Note
+
+
+
+--------------------------------------------------------------------------------
+
+THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
+STATE OF NEW YORK.
+
+ 
+
+AMERICAN TOWER CORPORATION By:  
+
+ 
+
+Name:  
+
+ 
+
+Title:  
+
+ 
+
+
+ 
+
+C-2
+
+Form of Note
+
+
+
+--------------------------------------------------------------------------------
+
+LOANS AND PAYMENTS WITH RESPECT THERETO
+
+ 
+
+Date
+
+   Type of
+Loan Made      Amount��of
+Loan Made      End of
+Interest
+Period      Amount of
+Principal
+or Interest
+Paid This
+Date      Outstanding
+Principal
+Balance
+This Date      Notation
+Made By                                                                       
+                                                                                
+                                                                                
+                                                                                
+           
+
+ 
+
+C-3
+
+Form of Note
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT D
+
+FORM OF LOAN CERTIFICATE
+
+[                    ], 20[    ]
+
+The undersigned, [                    ], the [                    ] of American
+Tower Corporation, a Delaware corporation (the “Company”), does hereby certify,
+on and as of the date hereof, in the name of and on behalf of the Company
+pursuant to that certain Term Loan Agreement, dated as of the date hereof (the
+“Loan Agreement”), by and among the Company, the financial institutions party
+thereto as lenders and Toronto Dominion (Texas) LLC, as Administrative Agent, as
+follows:
+
+1. All terms not otherwise defined herein shall have the meanings assigned to
+such terms in the Loan Agreement.
+
+2. Attached hereto as Exhibit A is a true, complete and correct copy of the
+certificate of incorporation of the Company (the “Certificate of Incorporation”)
+as certified by the Secretary of State of the State of Delaware as of the date
+given on the certificate. The Certificate of Incorporation has not been amended
+or restated, and no document with respect to an amendment to the Certificate of
+Incorporation has been filed with the Secretary of State since such date.
+
+3. Attached hereto as Exhibit B is a true, complete and correct copy of the
+By-laws of the Company, as have been in full force and effect at all times from
+the date thereof through the date hereof.
+
+4. (i) Attached hereto as Exhibit C is a true and correct copy of certain
+resolutions, duly adopted by the Board of Directors of the Company [at a meeting
+held ][by unanimous written consent] on [                    ] (the
+“Resolutions”), (ii) that the Resolutions have not been amended, modified or
+rescinded and remain in full force and effect, and (iii) that the Resolutions
+constitute all of the resolutions or consents of the Board of Directors of the
+Company relating to the transactions contemplated by the Loan Documents.
+
+5. Attached hereto as Exhibit D are the names and the respective offices and the
+true and genuine specimen signatures (or facsimiles thereof) of the duly
+elected, qualified and acting officers of the Company authorized to execute and
+deliver on behalf of the Company the Loan Documents to which it is a party, and
+all other documents necessary or appropriate to consummate the transactions
+contemplated therein or in the Loan Agreement and the Loan Documents.
+
+6. Attached hereto as Exhibit E is a true, correct and complete copy of a
+Certificate of Good Standing as of a recent date for the Company issued by the
+Secretary of State of the State of Delaware.
+
+ 
+
+D-1
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+7. Goodwin Procter LLP is entitled to rely on this certificate in rendering its
+opinion pursuant to Section 3.1(c)(i) of the Loan Agreement.
+
+[Signature Pages Follow]
+
+ 
+
+D-2
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date
+first written above.
+
+ 
+
+By:  
+
+ 
+
+  Name: [                    ]   Title: [                    ]
+
+The undersigned, [                    ],[                    ] of the Company,
+hereby certifies that [                    ], who executed the foregoing
+Certificate, is the duly elected, qualified and acting [                    ] of
+the Company and that the signature set forth above his name is his genuine
+signature.
+
+IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date
+first written above.
+
+ 
+
+By:  
+
+ 
+
+  Name: [                    ]   Title: [                    ]
+
+ 
+
+D-3
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT A
+
+CERTIFICATE OF INCORPORATION
+
+ 
+
+D-4
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT B
+
+BY-LAWS
+
+ 
+
+D-5
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT C
+
+RESOLUTIONS
+
+ 
+
+D-6
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT D
+
+INCUMBENCY
+
+ 
+
+Name
+
+ 
+
+Office
+
+ 
+
+Signature
+
+[                    ]   [                    ]   [                    ]
+[                    ]   [                    ]   [                    ]
+[                    ]   [                    ]   [                    ]
+[                    ]   [                    ]   [                    ]
+[                    ]   [                    ]   [                    ]
+[                    ]   [                    ]   [                    ]
+
+ 
+
+D-7
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT E
+
+GOOD STANDING CERTIFICATE
+
+ 
+
+D-8
+
+Form of Loan Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT E
+
+FORM OF PERFORMANCE CERTIFICATE
+
+[                    ], 20[    ]
+
+Financial Statement Date: [                    ], 20[    ]
+
+ 
+
+To:
+
+Toronto Dominion (Texas) LLC, as Administrative Agent
+
+The undersigned [                    ], as [                    ] of AMERICAN
+TOWER CORPORATION, a Delaware corporation (the “Borrower”), does hereby certify,
+on and as of the date hereof, in the name of and on behalf of the Borrower in
+connection with that certain Term Loan Agreement, dated as of the date hereof
+(the “Loan Agreement”), by and among the Borrower, the financial institutions
+party thereto as lenders and Toronto Dominion (Texas) LLC, as Administrative
+Agent, as follows:
+
+1. Calculations demonstrating compliance with Sections 7.5 and 7.6 of the Loan
+Agreement are set forth on Schedule 1 attached hereto; and
+
+2. To the knowledge of the undersigned, no Default or Event of Default has
+occurred and is continuing or, if a Default has occurred, each such Default and
+its nature, when it occurred, whether it is continuing and the steps being taken
+by the Borrowers with respect to such Default are set forth on Schedule 2
+attached hereto.
+
+Capitalized terms used herein and not otherwise defined have the meaning given
+to them in the Loan Agreement.
+
+[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
+
+ 
+
+E-1
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date
+first written above.
+
+ 
+
+AMERICAN TOWER CORPORATION, a Delaware corporation By:  
+
+ 
+
+  Name: [                    ]   Title: [                    ]
+
+ 
+
+E-2
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+For the [Quarter] [Year] ended                     , 20     (“Statement Date”)
+
+SCHEDULE 1
+
+to the Performance Certificate
+
+($ in 000’s)
+
+ARTICLE 13 - (A) Section 7.5 of the Loan Agreement
+
+ 
+
+1.   Senior Secured Leverage Ratio Compliance      (a)   Senior Secured Debt as
+of the last day of such fiscal quarter or on any other calculation date, as
+applicable = the aggregate amount of secured Indebtedness plus Attributable Debt
+as of such date (including, without limitation, Indebtedness under any Existing
+ABS Facility and Indebtedness under any additional ABS Facilities entered into
+in accordance with Section 7.1(h) of the Loan Agreement)    $                  
+    divided by      (b)   Adjusted EBITDA for the four fiscal quarter period
+ended on the last day of such fiscal quarter, if calculated as of the end of a
+fiscal quarter, or for the four fiscal quarter period ended on the last day of
+the most recently completed fiscal quarter for which financial statements have
+been delivered pursuant to Section 6.1 or 6.2 of the Loan Agreement, if
+calculated at the time of incurrence of any Indebtedness = the sum of (in each
+case determined in accordance with GAAP):        (1)   Net Income    $
+                      plus (to the extent deducted in determining such Net
+Income)        (2)   The sum of:          (A)   Interest Expense    $
+                        plus          (B)   income tax expense, including,
+without limitation, taxes paid or accrued based on income, profits or capital,
+including state, franchise and similar taxes and foreign withholding taxes    $
+                        plus          (C)   depreciation and amortization
+(including, without limitation, amortization of goodwill and other intangible   
+
+ 
+
+E-3
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+        assets)    $                        
+
+plus
+
+         (D)   extraordinary losses and non-recurring non-cash charges and
+expenses    $                         plus          (E)   all other non-cash
+charges, expenses and interest (including, without limitation, any non-cash
+losses in respect of Hedge Agreements, non-cash impairment charges, non-cash
+valuation charges for stock option grants or vesting of restricted stock awards
+or any other non-cash compensation charges and losses from the early
+extinguishment of Indebtedness)    $                         plus          (F)  
+non-recurring integration costs and expenses resulting from operational changes
+and improvements (including, without limitation, severance costs and business
+optimization expenses)    $                         plus          (G)  
+non-recurring charges and expenses, restructuring charges, transaction expenses
+(including, without limitation, transaction expenses incurred in connection with
+any merger or acquisition) and underwriters’ fees, and severance and retention
+payments in connection with any merger or acquisition, in each case for such
+period    $                         less          (H)   extraordinary gains and
+cash payments (not otherwise deducted in determining Net Income) made during
+such period with respect to non-cash charges that were added back in a prior
+period    $                         SUBTOTAL for (b):    $                      
+ 
+
+TOTAL SENIOR SECURED LEVERAGE RATIO (line (a) divided by line (b)) =
+
+             : 1.00  
+
+ 
+
+E-4
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+       
+
+Maximum ratio permitted for applicable period =
+
+     3.00: 1.00  
+
+ 
+
+E-5
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE 14 - (B) Section 7.6 of the Loan Agreement
+
+ 
+
+1.    Total Borrower Leverage Ratio Compliance       (a)    Total Debt as of the
+last day of such fiscal quarter or on any other calculation date, as applicable
+= the sum (without duplication) of, in each case for the Borrower and its
+Subsidiaries on a consolidated basis:          (1)    the outstanding principal
+amount of the Loans as of such date    $                          plus         
+(2)    the aggregate amount of Indebtedness plus Attributable Debt of such
+Persons as of such date    $                          plus          (3)    the
+aggregate amount of all Guaranties by such Persons of Indebtedness as of such
+date    $                          plus          (4)    to the extent payable by
+the Borrower, an amount equal to the aggregate exposure of the Borrower under
+any Hedge Agreements permitted pursuant to Section 7.1 of the Loan Agreement, as
+calculated on a marked to market basis as of the last day of the fiscal quarter
+being tested or the last day of the most recently completed fiscal quarter, as
+applicable    $                          less          (5)    the sum of all
+unrestricted domestic cash and Cash Equivalents of the Borrower and its
+Subsidiaries as of such date    $                          SUBTOTAL for (a):   
+$                             divided by       (b)    Adjusted EBITDA for the
+four fiscal quarter period ended on the last day of such fiscal quarter, if
+calculated as of the end of a fiscal quarter, or for the four fiscal quarter
+period ended on the last day of the most recently completed fiscal quarter for
+which financial statements have been delivered pursuant to Section 6.1 or 6.2 of
+the Loan Agreement, if calculated at the time of incurrence of any Indebtedness
+= the sum of (in each case determined in accordance with GAAP):    $
+               
+
+ 
+
+E-6
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+      (1)    Net Income    $                          plus (to the extent
+deducted in determining such Net Income)          (2)    The sum of:            
+(A)    Interest Expense    $                             plus             (B)   
+income tax expense, including, without limitation, taxes paid or accrued based
+on income, profits or capital, including state, franchise and similar taxes and
+foreign withholding taxes    $                             plus             (C)
+   depreciation and amortization (including, without limitation, amortization of
+goodwill and other intangible assets)    $                             plus   
+         (D)    extraordinary losses and non-recurring non-cash charges and
+expenses    $                             plus             (E)    all other
+non-cash charges, expenses and interest (including, without limitation, any
+non-cash losses in respect of Hedge Agreements, non-cash impairment charges,
+non-cash valuation charges for stock option grants or vesting of restricted
+stock awards or any other non-cash compensation charges and losses from the
+early extinguishment of Indebtedness)    $                             plus   
+         (F)    non-recurring integration costs and expenses resulting from
+operational changes and improvements (including, without limitation, severance
+costs and business optimization expenses)    $                             plus
+            (G)    non-recurring charges and expenses, restructuring charges,
+transaction expenses (including, without limitation, transaction expenses
+incurred in connection with any merger or acquisition) and underwriters’ fees,
+and severance and retention payments in connection   
+
+ 
+
+E-7
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+            with any merger or acquisition, in each case for such period    $
+                            less             (H)    extraordinary gains and cash
+payments (not otherwise deducted in determining Net Income) made during such
+period with respect to non-cash charges that were added back in a prior period
+   $                             SUBTOTAL for (b):    $                         
+  
+
+TOTAL BORROWER LEVERAGE RATIO (line (a) divided by line (b)) =
+
+             : 1.00              
+
+Maximum ratio permitted for applicable period =
+
+     6.00: 1.00  
+
+ARTICLE 15 -
+
+ 
+
+E-8
+
+Form of Performance Certificate
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT F
+
+ASSIGNMENT AND ASSUMPTION
+
+This Assignment and Assumption (this “Assignment and Assumption”) is dated as of
+the Effective Date set forth below and is entered into by and between
+[the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”)
+and [the][each]2 Assignee identified in item 2 below ([the][each, an]
+“Assignee”). [It is understood and agreed that the rights and obligations of
+[the Assignors][the Assignees]3 hereunder are several and not joint.]4
+Capitalized terms used but not defined herein shall have the meanings given to
+them in the Term Loan Agreement identified below (the “Term Loan Agreement”),
+receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
+Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to
+and incorporated herein by reference and made a part of this Assignment and
+Assumption as if set forth herein in full.
+
+For an agreed consideration, [the][each] Assignor hereby irrevocably sells and
+assigns to [the Assignee][the respective Assignees], and [the][each] Assignee
+hereby irrevocably purchases and assumes from [the Assignor][the respective
+Assignors], subject to and in accordance with the Standard Terms and Conditions
+and the Term Loan Agreement, as of the Effective Date inserted by the
+Administrative Agent as contemplated below (i) all of [the Assignor’s][the
+respective Assignors’] rights and obligations in [its capacity as a
+Lender][their respective capacities as Lenders] under the Term Loan Agreement
+and any other documents or instruments delivered pursuant thereto to the extent
+related to the amount and percentage interest identified below of all of such
+outstanding rights and obligations of [the Assignor][the respective Assignors]
+under the respective facilities identified below and (ii) to the extent
+permitted to be assigned under applicable law, all claims, suits, causes of
+action and any other right of [the Assignor (in its capacity as a Lender)][the
+respective Assignors (in their respective capacities as Lenders)] against any
+Person, whether known or unknown, arising under or in connection with the Term
+Loan Agreement, any other documents or instruments delivered pursuant thereto or
+the loan transactions governed thereby or in any way based on or related to any
+of the foregoing, including, but not limited to, contract claims, tort claims,
+malpractice claims, statutory claims and all other claims at law or in equity
+related to the rights and obligations sold and assigned pursuant to clause
+(i) above (the rights and obligations sold and assigned by [the][any] Assignor
+to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to
+herein collectively as [the][an] “Assigned Interest”). Each such sale and
+assignment is without recourse to [the][any] Assignor and, except as expressly
+provided in this Assignment and Assumption, without representation or warranty
+by [the][any] Assignor.
+
+ 
+
+1 
+
+For bracketed language here and elsewhere in this form relating to the
+Assignor(s), if the assignment is from a single Assignor, choose the first
+bracketed language. If the assignment is from multiple Assignors, choose the
+second bracketed language.
+
+2 
+
+For bracketed language here and elsewhere in this form relating to the
+Assignee(s), if the assignment is to a single Assignee, choose the first
+bracketed language. If the assignment is to multiple Assignees, choose the
+second bracketed language.
+
+3 
+
+Select as appropriate.
+
+4 
+
+Include bracketed language if there are either multiple Assignors or multiple
+Assignees.
+
+ 
+
+F-1
+
+Form of Assignment and Assumption
+
+
+
+--------------------------------------------------------------------------------
+
+1.   Assignor[s]:   
+
+ 
+
+       
+
+ 
+
+   2.   Assignee[s]:   
+
+ 
+
+       
+
+ 
+
+     [for each Assignee, indicate [Affiliate][Approved Fund] of [identify
+Lender]] 3.   Borrower(s):   
+
+ 
+
+  
+
+ 
+
+4.
+
+Administrative Agent: Toronto Dominion (Texas) LLC, as the administrative agent
+under the Term Loan Agreement
+
+ 
+
+5.
+
+Term Loan Agreement: Term Loan Agreement, dated as of                     , 2020
+among American Tower Corporation, the Lenders from time to time party thereto,
+and Toronto Dominion (Texas) LLC, as Administrative Agent
+
+ 
+
+6.
+
+Assigned Interest[s]:
+
+ 
+
+Assignor[s]5   Assignee[s]6     Aggregate
+Amount of
+Loans
+for all Lenders7     Amount
+of
+Loans
+Assigned     Percentage
+Assigned of
+Loans8     CUSIP
+Number       $                   $                          %        $
+                  $                          %        $                   $
+                         %   
+
+ 
+
+[7.
+
+Trade Date:                     ]9
+
+ 
+
+5 
+
+List each Assignor, as appropriate.
+
+6 
+
+List each Assignee, as appropriate.
+
+7 
+
+Amounts in this column and in the column immediately to the right to be adjusted
+by the counterparties to take into account any payments or prepayments made
+between the Trade Date and the Effective Date.
+
+8 
+
+Set forth, to at least 9 decimals, as a percentage of the Loans of all Lenders
+thereunder.
+
+9 
+
+To be completed if the Assignor and the Assignee intend that the minimum
+assignment amount is to be determined as of the Trade Date.
+
+ 
+
+F-2
+
+Form of Assignment and Assumption
+
+
+
+--------------------------------------------------------------------------------
+
+Effective Date:                     , 20     [TO BE INSERTED BY ADMINISTRATIVE
+AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
+REGISTER THEREFOR.]
+
+The terms set forth in this Assignment and Assumption are hereby agreed to:
+
+ 
+
+ASSIGNOR [NAME OF ASSIGNOR] By:  
+
+ 
+
+  Title: ASSIGNEE [NAME OF ASSIGNEE] By:  
+
+ 
+
+  Title:
+
+ 
+
+[Consented to and]10 Accepted: Toronto Dominion (Texas) LLC, as Administrative
+Agent By:  
+
+ 
+
+  Title: [Consented to:]11 By:  
+
+ 
+
+  Title:
+
+ 
+
+10 
+
+To be added only if the consent of the Administrative Agent is required by the
+terms of the Term Loan Agreement.
+
+11 
+
+To be added only if the consent of the Borrower and/or other parties is required
+by the terms of the Term Loan Agreement.
+
+ 
+
+F-2
+
+Form of Assignment and Assumption
+
+
+
+--------------------------------------------------------------------------------
+
+ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
+
+STANDARD TERMS AND CONDITIONS FOR
+
+ASSIGNMENT AND ASSUMPTION
+
+1. Representations and Warranties.
+
+1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is
+the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii)
+[the][such] Assigned Interest is free and clear of any lien, encumbrance or
+other adverse claim and (iii) it has full power and authority, and has taken all
+action necessary, to execute and deliver this Assignment and Assumption and to
+consummate the transactions contemplated hereby; and (b) assumes no
+responsibility with respect to (i) any statements, warranties or representations
+made in or in connection with the Term Loan Agreement or any other Loan
+Document, (ii) the execution, legality, validity, enforceability, genuineness,
+sufficiency or value of the Loan Documents or any collateral thereunder,
+(iii) the financial condition of the Borrower, any of its Subsidiaries or
+Affiliates or any other Person obligated in respect of any Loan Document or
+(iv) the performance or observance by the Borrower, any of its Subsidiaries or
+Affiliates or any other Person of any of their respective obligations under any
+Loan Document.
+
+1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has
+full power and authority, and has taken all action necessary, to execute and
+deliver this Assignment and Assumption and to consummate the transactions
+contemplated hereby and to become a Lender under the Term Loan Agreement,
+(ii) it meets all the requirements to be an assignee under Section 11.4(b)(i),
+(iii) and (iv) of the Term Loan Agreement (subject to such consents, if any, as
+may be required under Section 11.4(b)(iii) of the Term Loan Agreement), (iii)
+from and after the Effective Date, it shall be bound by the provisions of the
+Term Loan Agreement as a Lender thereunder and, to the extent of [the][the
+relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
+(iv) it is sophisticated with respect to decisions to acquire assets of the type
+represented by [the][such] Assigned Interest and either it, or the Person
+exercising discretion in making its decision to acquire [the][such] Assigned
+Interest, is experienced in acquiring assets of such type, (v) it has received a
+copy of the Term Loan Agreement, and has received or has been accorded the
+opportunity to receive copies of the most recent financial statements delivered
+pursuant to Section      thereof, as applicable, and such other documents and
+information as it deems appropriate to make its own credit analysis and decision
+to enter into this Assignment and Assumption and to purchase [the][such]
+Assigned Interest, (vi) it has, independently and without reliance upon the
+Administrative Agent or any other Lender and based on such documents and
+information as it has deemed appropriate, made its own credit analysis and
+decision to enter into this Assignment and Assumption and to purchase
+[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached
+hereto is any documentation required to be delivered by it pursuant to the terms
+of the Term Loan Agreement, duly completed and executed by [the][such] Assignee;
+and (b) agrees that (i) it will, independently and without reliance upon the
+Administrative Agent, [the][any] Assignor or any other Lender, and based on such
+documents and information as it shall deem appropriate at
+
+ 
+
+F-3
+
+Form of Assignment and Assumption
+
+
+
+--------------------------------------------------------------------------------
+
+the time, continue to make its own credit decisions in taking or not taking
+action under the Loan Documents, and (ii) it will perform in accordance with
+their terms all of the obligations which by the terms of the Loan Documents are
+required to be performed by it as a Lender.
+
+2. Payments. From and after the Effective Date, the Administrative Agent shall
+make all payments in respect of [the][each] Assigned Interest (including
+payments of principal, interest, fees and other amounts) to [the][the relevant]
+Assignor for amounts which have accrued to but excluding the Effective Date and
+to [the][the relevant] Assignee for amounts which have accrued from and after
+the Effective Date.
+
+3. General Provisions. This Assignment and Assumption shall be binding upon, and
+inure to the benefit of, the parties hereto and their respective successors and
+assigns. This Assignment and Assumption may be executed in any number of
+counterparts, which together shall constitute one instrument. Delivery of an
+executed counterpart of a signature page of this Assignment and Assumption by
+telecopy shall be effective as delivery of a manually executed counterpart of
+this Assignment and Assumption. This Assignment and Assumption shall be governed
+by, and construed in accordance with, the law of the State of New York.
+
+ 
+
+F-4
+
+Form of Assignment and Assumption
+EXHIBIT 10.1
+
+PURCHASE AGREEMENT
+
+THIS PURCHASE AGREEMENT (the “Agreement”), dated as of February 10, 2020, by and
+between TRANSENTERIX, INC., a Delaware corporation (the “Company”), and LINCOLN
+PARK CAPITAL FUND, LLC, an Illinois limited liability company (the “Investor”).
+
+WHEREAS:
+
+Subject to the terms and conditions set forth in this Agreement, the Company
+wishes to sell to the Investor, and the Investor wishes to purchase from the
+Company, up to Twenty-Five Million Dollars ($25,000,000) of the Company’s common
+stock, $0.001 par value per share (the “Common Stock”). The shares of Common
+Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”
+
+NOW THEREFORE, in consideration of the mutual covenants contained in this
+Agreement, and for other good and valuable consideration, the receipt and
+adequacy of which are hereby acknowledged, the Company and the Investor hereby
+agree as follows:
+
+ 
+
+1.
+
+CERTAIN DEFINITIONS.
+
+For purposes of this Agreement, the following terms shall have the following
+meanings:
+
+(a)    “Accelerated Purchase Date” means, with respect to any Accelerated
+Purchase made pursuant to Section 2(b) hereof, the Business Day immediately
+following the applicable Purchase Date with respect to the corresponding Regular
+Purchase referred to in clause (i) of the second sentence of Section 2(b)
+hereof.
+
+(b)    “Accelerated Purchase Minimum Price Threshold” means, with respect to any
+Accelerated Purchase made pursuant to Section 2(b) hereof, any minimum per share
+price threshold set forth in the applicable Accelerated Purchase Notice.
+
+(c)    “Accelerated Purchase Notice” means, with respect to any Accelerated
+Purchase made pursuant to Section 2(b) hereof, an irrevocable written notice
+from the Company to the Investor directing the Investor to buy a specified
+Accelerated Purchase Share Amount on the applicable Accelerated Purchase Date
+pursuant to Section 2(b) hereof at the applicable Accelerated Purchase Price on
+the Accelerated Purchase Date for such Accelerated Purchase in accordance with
+this Agreement, and specifying any Accelerated Purchase Minimum Price Threshold
+determined by the Company.
+
+(d)    “Accelerated Purchase Price” means, with respect to an Accelerated
+Purchase made pursuant to Section 2(b) hereof, the lower of (i) ninety-seven
+percent (97%) of the VWAP for the period beginning at 9:30:01 a.m., Eastern
+time, on the applicable Accelerated Purchase Date, or such other time publicly
+announced by the Principal Market as the official open (or commencement) of
+trading on the Principal Market on such applicable Accelerated Purchase Date
+(the “Accelerated Purchase Commencement Time”), and ending at the earliest of
+(A) 4:00:00 p.m., Eastern time, on such applicable Accelerated Purchase Date, or
+such other time publicly announced by the Principal Market as the official close
+of trading on the Principal Market on such applicable Accelerated Purchase Date,
+(B) such time, from and after the Accelerated Purchase Commencement Time for
+such Accelerated Purchase, that the total number (or volume) of shares of Common
+Stock traded on the Principal Market has exceeded the applicable Accelerated
+Purchase Share Volume Maximum, and (C) such time, from and after the Accelerated
+Purchase Commencement Time for such Accelerated Purchase, that the Sale Price
+has fallen below the applicable Accelerated Purchase Minimum Price Threshold
+(such earliest of (i)(A), (i)(B) and (i)(C) above, the “Accelerated Purchase
+Termination Time”), and (ii) the Closing Sale Price of the Common Stock on such
+applicable Accelerated Purchase Date (each to be appropriately adjusted for any
+reorganization, recapitalization, non-cash dividend, stock split, reverse stock
+split or other similar transaction).
+
+ 
+
+1
+
+
+
+--------------------------------------------------------------------------------
+
+(e)    “Accelerated Purchase Share Amount” means, with respect to an Accelerated
+Purchase made pursuant to Section 2(b) hereof, the number of Purchase Shares
+directed by the Company to be purchased by the Investor in an Accelerated
+Purchase Notice, which number of Purchase Shares shall not exceed the lesser of
+(i) 300% of the number of Purchase Shares directed by the Company to be
+purchased by the Investor pursuant to the corresponding Regular Purchase Notice
+for the corresponding Regular Purchase referred to in clause (i) of the second
+sentence of Section 2(b) hereof (subject to the Purchase Share limitations
+contained in Section 2(a) hereof) and (ii) an amount equal to (A) the
+Accelerated Purchase Share Percentage multiplied by (B) the total number (or
+volume) of shares of Common Stock traded on the Principal Market during the
+period on the applicable Accelerated Purchase Date beginning at the Accelerated
+Purchase Commencement Time for such Accelerated Purchase and ending at the
+Accelerated Purchase Termination Time for such Accelerated Purchase.
+
+(f)    “Accelerated Purchase Share Percentage” means, with respect to any
+Accelerated Purchase made pursuant to Section 2(b) hereof, thirty percent (30%).
+
+(g)    “Accelerated Purchase Share Volume Maximum” means, with respect to an
+Accelerated Purchase made pursuant to Section 2(b) hereof, a number of shares of
+Common Stock equal to (i) the applicable Accelerated Purchase Share Amount to be
+purchased by the Investor pursuant to the applicable Accelerated Purchase Notice
+for such Accelerated Purchase, divided by (ii) the Accelerated Purchase Share
+Percentage (to be appropriately adjusted for any reorganization,
+recapitalization, non-cash dividend, stock split, reverse stock split or other
+similar transaction).
+
+(h)    “Additional Accelerated Purchase Date” means, with respect to an
+Additional Accelerated Purchase made pursuant to Section 2(c) hereof, the
+Business Day (i) that is the Accelerated Purchase Date with respect to the
+corresponding Accelerated Purchase referred to in Section 2(b) hereof and
+(ii) on which the Investor receives, prior to 1:00 p.m., Eastern time, on such
+Business Day, a valid Additional Accelerated Purchase Notice for such Additional
+Accelerated Purchase in accordance with this Agreement.
+
+(i)    “Additional Accelerated Purchase Minimum Price Threshold” means, with
+respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
+hereof, any minimum per share price threshold set forth in the applicable
+Additional Accelerated Purchase Notice.
+
+(j)    “Additional Accelerated Purchase Notice” means, with respect to an
+Additional Accelerated Purchase made pursuant to Section 2(c) hereof, an
+irrevocable written notice from the Company to the Investor directing the
+Investor to purchase the applicable Additional Accelerated Purchase Share Amount
+at the Additional Accelerated Purchase Price for such Additional Accelerated
+Purchase in accordance with this Agreement, and specifying any Additional
+Accelerated Purchase Minimum Price Threshold determined by the Company.
+
+(k)    “Additional Accelerated Purchase Price” means, with respect to an
+Additional Accelerated Purchase made pursuant to Section 2(c) hereof, the lower
+of (i) ninety-seven percent (97%) of the VWAP for the period on the applicable
+Additional Accelerated Purchase Date, beginning at the latest of (A) the
+applicable Accelerated Purchase Termination Time with respect to the
+corresponding Accelerated Purchase referred to in Section 2(b) hereof on such
+Additional Accelerated Purchase Date, (B) the applicable Additional Accelerated
+Purchase Termination Time with respect to the most recently completed prior
+Additional Accelerated Purchase on such Additional Accelerated Purchase Date, as
+applicable, and (C) the time at which all Purchase Shares subject to all prior
+Accelerated Purchases and Additional Accelerated Purchases (as applicable),
+including, without limitation, those that have been effected on the same
+Business
+
+ 
+
+2
+
+
+
+--------------------------------------------------------------------------------
+
+Day as the applicable Additional Accelerated Purchase Date with respect to which
+the applicable Additional Accelerated Purchase relates, have theretofore been
+received by the Investor as DWAC Shares in accordance with this Agreement (such
+latest of (i)(A), (i)(B) and (i)(C) above, the “Additional Accelerated Purchase
+Commencement Time”), and ending at the earliest of (X) 4:00 p.m., Eastern time,
+on such Additional Accelerated Purchase Date, or such other time publicly
+announced by the Principal Market as the official close of trading on the
+Principal Market on such Additional Accelerated Purchase Date, (Y) such time,
+from and after the Additional Accelerated Purchase Commencement Time for such
+Additional Accelerated Purchase, that the total number (or volume) of shares of
+Common Stock traded on the Principal Market has exceeded the applicable
+Additional Accelerated Purchase Share Volume Maximum, and (Z) such time, from
+and after the Additional Accelerated Purchase Commencement Time for such
+Additional Accelerated Purchase, that the Sale Price has fallen below the
+applicable Additional Accelerated Purchase Minimum Price Threshold (if any)
+(such earliest of (i)(X), (i)(Y) and (i)(Z) above, the “Additional Accelerated
+Purchase Termination Time”), and (ii) the Closing Sale Price of the Common Stock
+on such Additional Accelerated Purchase Date (each to be appropriately adjusted
+for any reorganization, recapitalization, non-cash dividend, stock split,
+reverse stock split or other similar transaction).
+
+(l)    “Additional Accelerated Purchase Share Amount” means, with respect to an
+Additional Accelerated Purchase made pursuant to Section 2(c) hereof, the number
+of Purchase Shares directed by the Company to be purchased by the Investor on an
+Additional Accelerated Purchase Notice, which number of Purchase Shares shall
+not exceed the lesser of (i) 300% of the number of Purchase Shares directed by
+the Company to be purchased by the Investor pursuant to the corresponding
+Regular Purchase Notice for the corresponding Regular Purchase referred to in
+clause (i) of the second sentence of Section 2(c) hereof (subject to the
+Purchase Share limitations contained in Section 2(a) hereof) and (ii) an amount
+equal to (A) the Additional Accelerated Purchase Share Percentage multiplied by
+(B) the total number (or volume) of shares of Common Stock traded on the
+Principal Market during the period on the applicable Additional Accelerated
+Purchase Date beginning at the Additional Accelerated Purchase Commencement Time
+for such Additional Accelerated Purchase and ending at the Additional
+Accelerated Purchase Termination Time for such Additional Accelerated Purchase.
+
+(m)    “Additional Accelerated Purchase Share Percentage” means, with respect to
+an Additional Accelerated Purchase made pursuant to Section 2(c) hereof, thirty
+percent (30%).
+
+(n)    “Additional Accelerated Purchase Share Volume Maximum” means, with
+respect to an Additional Accelerated Purchase made pursuant to Section 2(c)
+hereof, a number of shares of Common Stock equal to (i) the applicable
+Additional Accelerated Purchase Share Amount properly directed by the Company to
+be purchased by the Investor pursuant to the applicable Additional Accelerated
+Purchase Notice for such Additional Accelerated Purchase, divided by (ii) the
+Additional Accelerated Purchase Share Percentage (to be appropriately adjusted
+for any reorganization, recapitalization, non-cash dividend, stock split, or
+other similar transaction).
+
+(o)    “Alternate Adjusted Regular Purchase Share Limit” means, with respect to
+a Regular Purchase made pursuant to Section 2(a) hereof, the maximum number of
+Purchase Shares which, taking into account the applicable per share Purchase
+Price therefor calculated in accordance with this Agreement, would enable the
+Company to deliver to the Investor, on the applicable Purchase Date for such
+Regular Purchase, a Regular Purchase Notice for a Purchase Amount equal to, or
+as closely approximating without exceeding, One Hundred Fifty Thousand Dollars
+($150,000).
+
+(p)    “Available Amount” means, initially, Twenty-Five Million Dollars
+($25,000,000) in the aggregate, which amount shall be reduced by the Purchase
+Amount each time the Investor purchases shares of Common Stock pursuant to
+Section 2 hereof.
+
+ 
+
+3
+
+
+
+--------------------------------------------------------------------------------
+
+(q)    “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or
+state law for the relief of debtors.
+
+(r)     “Base Prospectus” means the Company’s final base prospectus, dated
+February 10, 2020, a preliminary form of which is included in the Registration
+Statement, including the documents incorporated by reference therein, or any
+final base prospectus in any Registration Statement filed after the date hereof
+to cover the sales of the Securities.
+
+(s)     “Business Day” means any day on which the Principal Market is open for
+trading, including any day on which the Principal Market is open for trading for
+a period of time less than the customary time.
+
+(t)    “Closing Sale Price” means, for any security as of any date, the last
+closing sale price for such security on the Principal Market as reported by the
+Principal Market.
+
+(u)    “Confidential Information” means any information disclosed by either
+party to the other party, either directly or indirectly, in writing, orally or
+by inspection of tangible objects (including, without limitation, documents,
+prototypes, samples, plant and equipment), which is designated as
+“Confidential,” “Proprietary” or some similar designation. Information
+communicated orally shall be considered Confidential Information if such
+information is confirmed in writing as being Confidential Information within ten
+(10) Business Days after the initial disclosure. Confidential Information may
+also include information disclosed to a disclosing party by third parties.
+Confidential Information shall not, however, include any information which
+(i) was publicly known and made generally available in the public domain prior
+to the time of disclosure by the disclosing party; (ii) becomes publicly known
+and made generally available after disclosure by the disclosing party to the
+receiving party through no action or inaction of the receiving party; (iii) is
+already in the possession of the receiving party without confidential
+restriction at the time of disclosure by the disclosing party as shown by the
+receiving party’s files and records immediately prior to the time of disclosure;
+(iv) is obtained by the receiving party from a third party without a breach of
+such third party’s obligations of confidentiality; or (v) is independently
+developed by the receiving party without use of or reference to the disclosing
+party’s Confidential Information, as shown by documents and other competent
+evidence in the receiving party’s possession.
+
+(v)    “Custodian” means any receiver, trustee, assignee, liquidator or similar
+official under any Bankruptcy Law.
+
+(w)    “DTC” means The Depository Trust Company, or any successor performing
+substantially the same function for the Company.
+
+(x)    “DWAC Shares” means shares of Common Stock that are (i) issued in
+electronic form, (ii) freely tradable and transferable and without restriction
+on resale and (iii) timely credited by the Company to the Investor’s or its
+designee’s specified Deposit/Withdrawal at Custodian (DWAC) account with DTC
+under its Fast Automated Securities Transfer (FAST) Program, or any similar
+program hereafter adopted by DTC performing substantially the same function.
+
+(y)    “Exchange Act” means the Securities Exchange Act of 1934, as amended, and
+the rules and regulations promulgated thereunder.
+
+(z)    “Floor Price” means $0.25, which shall be appropriately adjusted for any
+reorganization, recapitalization, non-cash dividend, stock split or other
+similar transaction and, effective upon the consummation of any such
+reorganization, recapitalization, non-cash dividend, stock split or other
+similar transaction, the Floor Price shall mean the lower of (i) the adjusted
+price and (ii) $0.25.
+
+ 
+
+4
+
+
+
+--------------------------------------------------------------------------------
+
+(aa)    “Fully Adjusted Regular Purchase Share Limit” means, following any
+reorganization, recapitalization, non-cash dividend, stock split or other
+similar transaction from and after the date of this Agreement, the Regular
+Purchase Share Limit (as defined in Section 2(a) hereof) in effect on the
+applicable date of determination, after giving effect to the full proportionate
+adjustment with respect to such reorganization, recapitalization, non-cash
+dividend, stock split or other similar transaction.
+
+(bb)    “Initial Prospectus Supplement” means the prospectus supplement to the
+Base Prospectus complying with Rule 424(b) under the Securities Act that is
+filed with the SEC and delivered by the Company to the Investor upon the
+execution and delivery of this Agreement in accordance with Section 5(a),
+including the documents incorporated by reference therein.
+
+(cc)    “Material Adverse Effect” means any material adverse effect on (i) the
+enforceability of any Transaction Document, (ii) the results of operations,
+assets, business or financial condition of the Company and its Subsidiaries,
+taken as a whole, other than any material adverse effect that resulted
+exclusively from (A) any change in the United States or foreign economies or
+securities or financial markets in general that does not have a disproportionate
+effect on the Company and its Subsidiaries, taken as a whole, (B) any change
+that generally affects the industry in which the Company and its Subsidiaries
+operate that does not have a disproportionate effect on the Company and its
+Subsidiaries, taken as a whole, (C) any change arising in connection with
+earthquakes, hostilities, acts of war, sabotage or terrorism or military actions
+or any escalation or material worsening of any such hostilities, acts of war,
+sabotage or terrorism or military actions existing as of the date hereof,
+(D) any action taken by the Investor, its affiliates or its or their successors
+and assigns with respect to the transactions contemplated by this Agreement,
+(E) the effect of any change in applicable laws or accounting rules that does
+not have a disproportionate effect on the Company and its Subsidiaries, taken as
+a whole, or (F) any change resulting from compliance with terms of this
+Agreement or the consummation of the transactions contemplated by this
+Agreement, or (iii) the Company’s ability to perform in any material respect on
+a timely basis its obligations under any Transaction Document to be performed as
+of the date of determination.
+
+(dd)    “Maturity Date” means the first day of the month immediately following
+the thirty-six (36) month anniversary of the Commencement Date.
+
+(ee)    “PEA Period” means the period commencing at 9:30 a.m., Eastern time, on
+the twentieth (20th) Business Day immediately prior to the filing of any
+post-effective amendment to the Registration Statement (as defined herein) or a
+New Registration Statement (as such term is defined in the Registration Rights
+Agreement), and ending at 9:30 a.m., Eastern time, on the Business Day
+immediately following the effective date of any post-effective amendment to the
+Registration Statement (as defined herein) or New Registration Statement (as
+such term is defined in the Registration Rights Agreement).
+
+(ff)    “Person” means an individual or entity including but not limited to any
+limited liability company, a partnership, a joint venture, a corporation, a
+trust, an unincorporated organization and a government or any department or
+agency thereof.
+
+(gg)    “Principal Market” means the NYSE American (or any nationally recognized
+successor thereto); provided, however, that in the event the Company’s Common
+Stock is ever listed or traded on The NASDAQ Capital Market, The NASDAQ Global
+Market, The NASDAQ Global Select Market, the New York Stock Exchange, the NYSE
+Arca, the OTC Bulletin Board, or the OTCQB or the OTCQX operated by the OTC
+Markets Group, Inc. (or any nationally recognized successor to any of the
+foregoing), then the “Principal Market” shall mean such other market or exchange
+on which the Company’s Common Stock is then listed or traded.
+
+ 
+
+5
+
+
+
+--------------------------------------------------------------------------------
+
+(hh)    “Prospectus” means the Base Prospectus, as supplemented by any
+Prospectus Supplement (including the Initial Prospectus Supplement), including
+the documents and information incorporated by reference therein.
+
+(ii)    “Prospectus Supplement” means any prospectus supplement to the Base
+Prospectus (including the Initial Prospectus Supplement) filed with the SEC
+pursuant to Rule 424(b) under the Securities Act in connection with the
+transactions contemplated by this Agreement, including the documents and
+information incorporated by reference therein.
+
+(jj)    “Purchase Amount” means, with respect to any Regular Purchase, any
+Accelerated Purchase or any Additional Accelerated Purchase made hereunder, the
+portion of the Available Amount to be purchased by the Investor pursuant to
+Section 2 hereof.
+
+(kk)    “Purchase Date” means, with respect to any Regular Purchase made
+pursuant to Section 2(a) hereof, the Business Day on which the Investor
+receives, prior to 5:00 p.m., Eastern time, of such Business Day, a valid
+Regular Purchase Notice that the Investor is to buy Purchase Shares pursuant to
+Section 2(a) hereof.
+
+(ll)    “Purchase Notice” means a Regular Purchase Notice, an Accelerated
+Purchase Notice or an Additional Accelerated Purchase Notice with respect to any
+Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase,
+respectively.
+
+(mm)    “Purchase Price” means, with respect to any Regular Purchase made
+pursuant to Section 2(a) hereof, the lower of: (i) the lowest Sale Price of the
+Common Stock on the applicable Purchase Date and (ii) the arithmetic average of
+the three (3) lowest Closing Sale Prices for the Common Stock during the ten
+(10) consecutive Business Days ending on the Business Day immediately preceding
+such Purchase Date (in each case, to be appropriately adjusted for any
+reorganization, recapitalization, non-cash dividend, stock split or other
+similar transaction that occurs on or after the date of this Agreement).
+
+(nn)    “Registration Rights Agreement” means that certain Registration Rights
+Agreement, of even date herewith between the Company and the Investor.
+
+(oo)    “Registration Statement” has the meaning set forth in the Registration
+Rights Agreement.
+
+(pp)    “Regular Purchase Notice” means, with respect to any Regular Purchase
+pursuant to Section 2(a) hereof, an irrevocable written notice from the Company
+to the Investor directing the Investor to buy such applicable amount of Purchase
+Shares at the applicable Purchase Price as specified by the Company therein on
+the applicable Purchase Date for such Regular Purchase.
+
+(qq)    “Sale Price” means any sale price for the shares of Common Stock on the
+Principal Market as reported by the Principal Market.
+
+(rr)    “SEC” means the U.S. Securities and Exchange Commission.
+
+(ss)    “Securities” means, collectively, the Purchase Shares and the Commitment
+Shares.
+
+(tt)    “Securities Act” means the Securities Act of 1933, as amended, and the
+rules and regulations promulgated thereunder.
+
+(uu)     “Subsidiary” means any Person the Company wholly-owns or controls, or
+in which the Company, directly or indirectly, owns a majority of the voting
+stock or similar voting interest, in each case that would be disclosable
+pursuant to Item 601(b)(21) of Regulation S-K promulgated under the Securities
+Act.
+
+ 
+
+6
+
+
+
+--------------------------------------------------------------------------------
+
+(vv)    “Transaction Documents” means, collectively, this Agreement and the
+schedules and exhibits hereto, the Registration Rights Agreement and the
+schedules and exhibits thereto, and each of the other agreements, documents,
+certificates and instruments entered into or furnished by the parties hereto in
+connection with the transactions contemplated hereby and thereby.
+
+(ww)     “Transfer Agent” means Continental Stock & Transfer Company, or such
+other Person who is then serving as the transfer agent for the Company in
+respect of the Common Stock.
+
+(xx)    “VWAP” means in respect of an applicable Accelerated Purchase Date and
+an Additional Accelerated Purchase Date, as applicable, the volume weighted
+average price of the Common Stock on the Principal Market, as reported on the
+Principal Market or by another reputable source such as Bloomberg, L.P.
+
+ 
+
+2.
+
+PURCHASE OF COMMON STOCK.
+
+Subject to the terms and conditions set forth in this Agreement, the Company has
+the right to sell to the Investor, and the Investor has the obligation to
+purchase from the Company, Purchase Shares as follows:
+
+(a)    Commencement of Regular Sales of Common Stock. Upon the satisfaction of
+the conditions set forth in Sections 7 and 8 hereof (the “Commencement” and the
+date of satisfaction of such conditions the “Commencement Date”) and thereafter,
+the Company shall have the right, but not the obligation, to direct the
+Investor, by its delivery to the Investor of a Regular Purchase Notice from time
+to time, to purchase up to Two Hundred Thousand (200,000) Purchase Shares (such
+maximum number of Purchase Shares, as may be adjusted from time to time, the
+“Regular Purchase Share Limit”), at the Purchase Price on the Purchase Date,
+provided that the Closing Sale Price of the Common Stock is not below the Floor
+Price on the Purchase Date (each such purchase a “Regular Purchase”); provided,
+however, that (i) the Regular Purchase may be increased to up to Three Hundred
+Thousand (300,000) Purchase Shares, provided that the Closing Sale Price of the
+Common Stock is not below $1.50 on the Purchase Date and (ii) the Regular
+Purchase may be increased to up to Four Hundred Thousand (400,000) Purchase
+Shares, provided that the Closing Sale Price of the Common Stock is not below
+$2.00 on the Purchase Date; provided that if, the Fully Adjusted Regular
+Purchase Share Limit then in effect would preclude the Company from delivering
+to the Investor a Regular Purchase Notice hereunder for a Purchase Amount equal
+to or greater than the Alternate Adjusted Regular Purchase Share Limit, the
+Alternate Adjusted Regular Purchase Share Limit shall apply in lieu of the Fully
+Adjusted Regular Purchase Share Limit; provided, further, however, that the
+Investor’s committed obligation under any single Regular Purchase, other than
+any Regular Purchase with respect to which an Alternate Adjusted Regular
+Purchase Share Limit shall apply, shall not exceed Two Million Dollars
+($2,000,000) and provided, further, however, that the parties may mutually agree
+to increase the Regular Purchase Share Limit for any Regular Purchase. The
+Company may deliver multiple Regular Purchase Notices to the Investor in a day
+as often as every Business Day, so long as Purchase Shares for all prior Regular
+Purchases, Accelerated Purchases and Additional Accelerated Purchases,
+including, without limitation, those that have been effected on the same
+Business Day as the applicable Purchase Date, have theretofore been received by
+the Investor as DWAC Shares in accordance with this Agreement. Notwithstanding
+the foregoing, the Company shall not deliver a Regular Purchase Notice to the
+Investor during the PEA Period.
+
+ 
+
+7
+
+
+
+--------------------------------------------------------------------------------
+
+(b)    Accelerated Purchases. Subject to the terms and conditions of this
+Agreement, beginning on the Commencement Date, in addition to purchases of
+Purchase Shares as described in Section 2(a) above, the Company shall also have
+the right, but not the obligation, to direct the Investor, by its delivery to
+the Investor of an Accelerated Purchase Notice from time to time in accordance
+with this Agreement, to purchase the applicable Accelerated Purchase Share
+Amount at the Accelerated Purchase Price on the Accelerated Purchase Date
+therefor in accordance with this Agreement (each such purchase, an “Accelerated
+Purchase”). The Company may deliver an Accelerated Purchase Notice to the
+Investor only on a Purchase Date on which (i) the Company also properly
+submitted a Regular Purchase Notice providing for a Regular Purchase of a number
+of Purchase Shares not less than the Regular Purchase Share Limit then in effect
+on such Purchase Date in accordance with this Agreement and (ii) if all Purchase
+Shares subject to all prior Regular Purchases, Accelerated Purchases and
+Additional Accelerated Purchases, including, without limitation, those that have
+been effected on the same Business Day as the applicable Accelerated Purchase
+Date with respect to which the applicable Accelerated Purchase relates, have
+theretofore been received by the Investor as DWAC Shares in accordance with this
+Agreement; provided, however, that the parties may mutually agree to increase
+the Accelerated Purchase Share Amount on any Accelerated Purchase Date at the
+applicable Accelerated Purchase Price. Within one (1) Business Day after each
+Accelerated Purchase Date, the Accelerated Purchase Share Amount and the
+applicable Accelerated Purchase Price shall be set forth on a confirmation of
+the Accelerated Purchase to be provided to the Company by the Investor (an
+“Accelerated Purchase Confirmation”). Notwithstanding the foregoing, the Company
+shall not deliver any Accelerated Purchase Notices during the PEA Period.
+
+(c)    Additional Accelerated Purchases. Subject to the terms and conditions of
+this Agreement, beginning one (1) Business Day following the Commencement Date
+and thereafter, in addition to purchases of Purchase Shares as described in
+Section 2(a) and Section 2(b) above, the Company shall also have the right, but
+not the obligation, to direct the Investor, by its timely delivery to the
+Investor of an Additional Accelerated Purchase Notice on an Additional
+Accelerated Purchase Date in accordance with this Agreement, to purchase the
+applicable Additional Accelerated Purchase Share Amount at the applicable
+Additional Accelerated Purchase Price therefor in accordance with this Agreement
+(each such purchase, an “Additional Accelerated Purchase”). The Company may
+deliver multiple Additional Accelerated Purchase Notices to the Investor on an
+Additional Accelerated Purchase Date; provided, however, that the Company may
+deliver an Additional Accelerated Purchase Notice to the Investor only (i) on a
+Business Day that is also the Accelerated Purchase Date for an Accelerated
+Purchase with respect to which the Company properly submitted to the Investor an
+Accelerated Purchase Notice in accordance with this Agreement on the applicable
+Purchase Date for a Regular Purchase of a number of Purchase Shares not less
+than the Regular Purchase Share Limit then in effect in accordance with this
+Agreement and (ii) if all Purchase Shares subject to all prior Regular
+Purchases, Accelerated Purchases and Additional Accelerated Purchases,
+including, without limitation, those that have been effected on the same
+Business Day as the applicable Additional Accelerated Purchase Date with respect
+to which the applicable Additional Accelerated Purchase relates, have
+theretofore been received by the Investor as DWAC Shares in accordance with this
+Agreement and provided, further, however, that the parties may mutually agree to
+increase the Additional Accelerated Purchase Share Amount applicable to any
+Accelerated Purchase, and all of the Purchase Shares subject to such increased
+Accelerated Purchase shall be purchased by the Investor at the Accelerated
+Purchase Price for such increased Accelerated Purchase in accordance with this
+Agreement. Within one (1) Business Day after each Additional Accelerated
+Purchase Date, the Additional Accelerated Purchase Share Amount and the
+applicable Additional Accelerated Purchase Price shall be set forth on a
+confirmation of the Additional Accelerated Purchase to be provided to the
+Company by the Investor (an “Accelerated Purchase Confirmation”).
+Notwithstanding the foregoing, the Company shall not deliver any Additional
+Accelerated Purchase Notices during the PEA Period.
+
+(d)    Payment for Purchase Shares. For each Regular Purchase, the Investor
+shall pay to the Company an amount equal to the Purchase Amount with respect to
+such Regular Purchase as full payment for such Purchase Shares via wire transfer
+of immediately available funds on the same Business Day that the Investor
+receives such Purchase Shares, if such Purchase Shares are received by the
+Investor
+
+ 
+
+8
+
+
+
+--------------------------------------------------------------------------------
+
+before 1:00 p.m., Eastern time, or, if such Purchase Shares are received by the
+Investor after 1:00 p.m., Eastern time, the next Business Day. For each
+Accelerated Purchase and each Additional Accelerated Purchase, the Investor
+shall pay to the Company an amount equal to the Purchase Amount with respect to
+such Accelerated Purchase and Additional Accelerated Purchase, respectively, as
+full payment for such Purchase Shares via wire transfer of immediately available
+funds on the second Business Day following the date that the Investor receives
+such Purchase Shares. If the Company or the Transfer Agent shall fail for any
+reason or for no reason to electronically transfer any Purchase Shares as DWAC
+Shares with respect to any Regular Purchase, Accelerated Purchase or Additional
+Accelerated Purchase (as applicable) within two (2) Business Days following the
+receipt by the Company of the Purchase Price, Accelerated Purchase Price or
+Additional Accelerated Purchase Price, respectively, therefor in compliance with
+this Section 2(d), and if on or after such Business Day the Investor purchases
+(in an open market transaction or otherwise) shares of Common Stock to deliver
+in satisfaction of a sale by the Investor of such Purchase Shares that the
+Investor anticipated receiving from the Company in respect of such Regular
+Purchase, Accelerated Purchase or Additional Accelerated Purchase (as
+applicable), then the Company shall, in the Company’s discretion, within two
+(2) Business Days after the Investor’s request, either (i) pay cash to the
+Investor in an amount equal to the Investor’s total purchase price (including
+reasonable brokerage commissions, if any) for the shares of Common Stock so
+purchased (the “Cover Price”), at which point the Company’s obligation to
+deliver such Purchase Shares as DWAC Shares shall terminate, or (ii) promptly
+honor its obligation to deliver to the Investor such Purchase Shares as DWAC
+Shares and pay cash to the Investor in an amount equal to the excess (if any) of
+the Cover Price over the total Purchase Amount paid by the Investor pursuant to
+this Agreement for all of the Purchase Shares to be purchased by the Investor in
+connection with such purchases. The Company shall not issue any fraction of a
+share of Common Stock upon any Regular Purchase, Accelerated Purchase or
+Additional Accelerated Purchase. If the issuance would result in the issuance of
+a fraction of a share of Common Stock, the Company shall round such fraction of
+a share of Common Stock up or down to the nearest whole share. All payments made
+under this Agreement shall be made in lawful money of the United States of
+America or wire transfer of immediately available funds to such account as the
+Company may from time to time designate by written notice in accordance with the
+provisions of this Agreement. Whenever any amount expressed to be due by the
+terms of this Agreement is due on any day that is not a Business Day, the same
+shall instead be due on the next succeeding day that is a Business Day.
+
+(e)    Compliance with Rules of the Principal Market.
+
+(i)    Exchange Cap. Subject to Section 2(e)(ii) below, the Company shall not
+issue or sell any shares of Common Stock pursuant to this Agreement, and the
+Investor shall not purchase or acquire any shares of Common Stock pursuant to
+this Agreement, to the extent that after giving effect thereto, the aggregate
+number of shares of Common Stock that would be issued pursuant to this Agreement
+and the transactions contemplated hereby would exceed 5,303,544 shares of Common
+Stock (which number of shares shall be reduced, on a share-for-share basis, by
+the number of shares of Common Stock issued or issuable pursuant to any
+transaction or series of transactions that may be aggregated with the
+transactions contemplated by this Agreement under applicable rules of the NYSE
+American or any other Principal Market on which the Common Stock may be listed
+or quoted) (the “Exchange Cap”), unless and until the Company elects to solicit
+stockholder approval of the issuance of Common Stock as contemplated by this
+Agreement and the stockholders of the Company have in fact approved such
+issuance in accordance with the applicable rules and regulations of the NYSE
+American, any other Principal Market on which the Common Stock may be listed or
+quoted, and the Company’s Certificate of Incorporation, as amended (the
+“Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws,
+as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but
+shall be under no obligation to, request its stockholders to approve the
+issuance of Common Stock as contemplated by this Agreement; provided, that if
+stockholder approval is not obtained in accordance with this Section 2(e)(i),
+the Exchange Cap shall be applicable for all purposes of this Agreement and the
+transactions contemplated hereby at all times during the term of this Agreement
+(except as set forth in
+Section 2(e)(ii) below).
+
+ 
+
+9
+
+
+
+--------------------------------------------------------------------------------
+
+(ii)    At-Market Transaction. Notwithstanding Section 2(e)(i) above and subject
+to the prior approval of the NYSE American or any other Principal Market on
+which the Common Stock may be listed or quoted (to the extent required), the
+Exchange Cap shall not be applicable for any purposes of this Agreement and the
+transactions contemplated hereby, solely to the extent that the issuances and
+sales of Common Stock pursuant to this Agreement are deemed to be at a price
+equal to or in excess of the greater of book or market value of the Common Stock
+as calculated in accordance with the applicable rules of the NYSE American or
+any other Principal Market on which the Common Stock may be listed or quoted (it
+being hereby acknowledged and agreed that the Exchange Cap shall be applicable
+for all purposes of this Agreement and the transactions contemplated hereby at
+all other times during the term of this Agreement, unless the stockholder
+approval referred to in Section 2(e)(i) is obtained).
+
+(iii)    General. The Company shall not issue any shares of Common Stock
+pursuant to this Agreement if such issuance would reasonably be expected to
+result in (A) a violation of the Securities Act or (B) a breach of the rules and
+regulations of the NYSE American or any other Principal Market on which the
+Common Stock may be listed or quoted. The provisions of this Section 2(f) shall
+be implemented in a manner otherwise than in strict conformity with the terms
+hereof only if necessary to ensure compliance with the Securities Act and the
+rules and regulations of NYSE American or any other the Principal Market on
+which the Common Stock may be listed or quoted.
+
+(f)    Beneficial Ownership Limitation. Notwithstanding anything to the contrary
+contained in this Agreement, the Company shall not issue or sell, and the
+Investor shall not purchase or acquire, any shares of Common Stock under this
+Agreement which, when aggregated with all other shares of Common Stock then
+beneficially owned by the Investor and its affiliates (as calculated pursuant to
+Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) would
+result in the beneficial ownership by the Investor and its affiliates of more
+than 9.99% of the then issued and outstanding shares of Common Stock (the
+“Beneficial Ownership Limitation”). Upon the written or oral request of the
+Investor, the Company shall promptly (but not later than one (1) Business Day)
+confirm orally or in writing to the Investor the amount of Common Stock then
+outstanding. The Investor and the Company shall each cooperate in good faith in
+the determinations required hereby and the application hereof. The Investor’s
+written certification to the Company of the applicability of the Beneficial
+Ownership Limitation, and the resulting effect thereof hereunder at any time,
+shall be conclusive with respect to the applicability thereof and such result
+absent manifest error.
+
+(g)    Excess Share Limitation. If the Company delivers any Purchase Notice for
+a Purchase Amount in excess of the limitations contained in this Section 2, such
+Purchase Notice shall be void ab initio to the extent of the amount by which the
+number of Purchase Shares set forth in such Purchase Notice exceeds the number
+of Purchase Shares which the Company is permitted to include in such Purchase
+Notice in accordance herewith, and the Investor shall have no obligation to
+purchase such excess Purchase Shares in respect of such Purchase Notice;
+provided, however, that the Investor shall remain obligated to purchase the
+number of Purchase Shares which the Company is permitted to include in such
+Purchase Notice.
+
+(h)    Adjustments for Shares. All share-related numbers contained in this
+Section 2, and the Regular Purchase Share Limit, shall be adjusted to take into
+account any reorganization, recapitalization, non-cash dividend, stock split or
+other similar transaction effected with respect to the Common Stock except as
+specifically stated herein.
+
+ 
+
+10
+
+
+
+--------------------------------------------------------------------------------
+
+3.
+
+INVESTOR’S REPRESENTATIONS AND WARRANTIES.
+
+The Investor represents and warrants to the Company that as of the date hereof
+and as of the Commencement Date:
+
+(a)    Accredited Investor Status. The Investor is an “accredited investor” as
+that term is defined in Rule 501(a)(3) of Regulation D promulgated under the
+Securities Act.
+
+(b)    Information. The Investor understands that its investment in the
+Securities involves a high degree of risk. The Investor (i) is able to bear the
+economic risk of an investment in the Securities including a total loss thereof,
+(ii) has such knowledge and experience in financial and business matters that it
+is capable of evaluating the merits and risks of the proposed investment in the
+Securities and (iii) has had an opportunity to ask questions of and receive
+answers from the officers of the Company concerning the financial condition and
+business of the Company and other matters related to an investment in the
+Securities. Neither such inquiries nor any other due diligence investigations
+conducted by the Investor or its representatives shall modify, amend or affect
+the Investor’s right to rely on the Company’s representations and warranties
+contained in Section 4 below. The Investor has sought such accounting, legal and
+tax advice as it has considered necessary to make an informed investment
+decision with respect to its acquisition of the Securities. The Investor
+acknowledges and agrees that neither the Company nor any of its Subsidiaries
+makes or has made any representations or warranties with respect to the
+transactions contemplated hereby, other than those specifically set forth in
+Section 4 hereof.
+
+(c)    No Governmental Review. The Investor understands that no U.S. federal or
+state agency or any other government or governmental agency has passed on or
+made any recommendation or endorsement of the Securities or the fairness or
+suitability of an investment in the Securities nor have such authorities passed
+upon or endorsed the merits of the offering of the Securities.
+
+(d)    Validity; Enforcement. This Agreement has been duly and validly
+authorized, executed and delivered on behalf of the Investor and is a valid and
+binding agreement of the Investor enforceable against the Investor in accordance
+with its terms, subject as to enforceability to general principles of equity and
+to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
+and other similar laws relating to, or affecting generally, the enforcement of
+applicable creditors’ rights and remedies.
+
+(e)    Residency. The Investor is a resident of the State of Illinois.
+
+(f)    Confidentiality. Other than to other Persons party to this Agreement,
+Investor has maintained the confidentiality of all Confidential Information
+(including the existence and terms of this transaction).
+
+(g)    No Short Selling, Other Transactions. The Investor represents and
+warrants to the Company that at no time prior to the date of this Agreement has
+any of the Investor, its agents, representatives or affiliates engaged in or
+effected, in any manner whatsoever, directly or indirectly, any (i) “short sale”
+(as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of
+the Common Stock or (ii) hedging transaction, which establishes a net short
+position with respect to the Common Stock. Other than consummating the
+transactions contemplated hereunder, Investor has not, nor has any Person acting
+on behalf of or pursuant to any understanding with Investor, directly or
+indirectly, executed any other purchases or sales of the securities of the
+Company during the period commencing as of the time that the Investor first
+received a term sheet (written or oral) with respect to the Company setting
+forth the material terms of the transactions contemplated hereunder and ending
+immediately prior to the execution hereof.
+
+ 
+
+11
+
+
+
+--------------------------------------------------------------------------------
+
+4.
+
+REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
+
+The Company represents and warrants to the Investor that as of the date hereof
+and as of the Commencement Date:
+
+(a)    Organization and Qualification. The Company and each of the Subsidiaries
+is an entity duly incorporated or otherwise organized, validly existing and in
+good standing under the laws of the jurisdiction of its incorporation or
+organization, with the requisite corporate power and authority to own and use
+its properties and assets and to carry on its business as currently
+conducted. Neither the Company nor any Subsidiary is in violation or default of
+any of the provisions of its respective certificate or articles of formation or
+incorporation, bylaws or other organizational or charter documents, except as
+would not reasonably be expected to have a Material Adverse Effect. Each of the
+Company and the Subsidiaries is duly qualified to conduct business and is in
+good standing as a foreign corporation or other entity in each jurisdiction in
+which the nature of the business conducted or property owned by it makes such
+qualification necessary, except where the failure to be so qualified or in good
+standing, as the case may be, would not reasonably be expected to result in a
+Material Adverse Effect, and no proceeding has been instituted in any such
+jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or
+curtail such power and authority or qualification. The Company has no
+Subsidiaries except as set forth on Schedule 4(a).
+
+(b)    Authorization; Enforcement; Validity. (i) The Company has the requisite
+corporate power and authority to enter into and perform its obligations under
+this Agreement and each of the other Transaction Documents, and to issue the
+Securities in accordance with the terms hereof and thereof, (ii) the execution
+and delivery of the Transaction Documents by the Company and the consummation by
+it of the transactions contemplated hereby and thereby, including without
+limitation, the issuance of the Initial Commitment Shares (as defined below in
+Section 5(e)) and the reservation for issuance and the issuance of the
+Additional Commitment Shares (as defined below in Section 5(e)) and the Purchase
+Shares issuable under this Agreement, have been duly authorized by the Company’s
+Board of Directors, or a duly authorized committee of the Board of Directors,
+and no further consent or authorization is required by the Company, its Board of
+Directors or its stockholders (save to the extent provided in this Agreement),
+(iii) this Agreement has been, and each other Transaction Document shall be on
+the Commencement Date, duly executed and delivered by the Company and (iv) this
+Agreement constitutes, and each other Transaction Document upon its execution on
+behalf of the Company, shall constitute, the valid and binding obligations of
+the Company enforceable against the Company in accordance with their terms,
+except as such enforceability may be limited by general principles of equity or
+applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
+similar laws relating to, or affecting generally, the enforcement of creditors’
+rights and remedies. The Board of Directors of the Company, or a duly authorized
+committee of the Board of Directors, has approved the resolutions (the “Signing
+Resolutions”) substantially in the form as set forth as Exhibit C attached
+hereto to authorize this Agreement and the transactions contemplated hereby. The
+Signing Resolutions are valid, in full force and effect and have not been
+modified or supplemented in any respect. The Company has delivered to the
+Investor a true and correct copy of the written consent of the Board of
+Directors of the Company, or a duly authorized committee of the Board of
+Directors, adopting the Signing Resolutions. Except as set forth in this
+Agreement, no other approvals or consents of the Company’s Board of Directors
+and/or stockholders is necessary under applicable laws and the Company’s
+Certificate of Incorporation and/or Bylaws to authorize the execution and
+delivery of this Agreement or any of the transactions contemplated hereby,
+including, but not limited to, the issuance of the Commitment Shares (as defined
+below in Section 5(e)) and the issuance of the Purchase Shares.
+
+(c)    Capitalization. As of the date hereof, the authorized capital stock of
+the Company is set forth in the SEC Documents (as defined below). Except as
+disclosed in the Registration Statement or the SEC Documents, (i) no shares of
+the Company’s capital stock are subject to preemptive rights or any other
+similar rights or any liens or encumbrances suffered or permitted by the
+Company, (ii) there are no
+
+ 
+
+12
+
+
+
+--------------------------------------------------------------------------------
+
+outstanding debt securities, (iii) there are no outstanding options, warrants,
+scrip, rights to subscribe to, calls or commitments of any character whatsoever
+relating to, or securities or rights convertible into, any shares of capital
+stock of the Company or any of its Subsidiaries, or contracts, commitments,
+understandings or arrangements by which the Company or any of its Subsidiaries
+is or may become bound to issue additional shares of capital stock of the
+Company or any of its Subsidiaries or options, warrants, scrip, rights to
+subscribe to, calls or commitments of any character whatsoever relating to, or
+securities or rights convertible into, any shares of capital stock of the
+Company or any of its Subsidiaries, (iv) there are no agreements or arrangements
+under which the Company or any of its Subsidiaries is obligated to register the
+sale of any of their securities under the Securities Act, (v) there are no
+outstanding securities or instruments of the Company or any of its Subsidiaries
+which contain any redemption or similar provisions, and there are no contracts,
+commitments, understandings or arrangements by which the Company or any of its
+Subsidiaries is or may become bound to redeem a security of the Company or any
+of its Subsidiaries, (vi) there are no securities or instruments containing
+anti-dilution or similar provisions that will be triggered by the issuance of
+the Securities as described in this Agreement and (vii) the Company does not
+have any stock appreciation rights or “phantom stock” plans or agreements or any
+similar plan or agreement. True and correct copies of the Company’s Certificate
+of Incorporation and the Company’s Bylaws, and summaries of the terms of all
+securities convertible into or exercisable for Common Stock, if any, and copies
+of any documents containing the material rights of the holders thereof in
+respect thereto are part of the SEC Documents.
+
+(d)    Issuance of Securities. Upon issuance and payment thereof in accordance
+with the terms and conditions of this Agreement, the Purchase Shares shall be
+validly issued, fully paid and nonassessable and free from all taxes, liens,
+charges, restrictions, rights of first refusal and preemptive rights with
+respect to the issue thereof, with the holders being entitled to all rights
+accorded to a holder of Common Stock. Up to 20,833,333 shares of Common Stock
+have been duly authorized and reserved for issuance upon purchase under this
+Agreement as Purchase Shares. The Commitment Shares have been duly authorized
+and, upon issuance in accordance with the terms of this Agreement, shall be
+validly issued, fully paid and nonassessable and free from all taxes, liens,
+charges, restrictions, rights of first refusal and preemptive rights with
+respect to the issue thereof, with the holders being entitled to all rights
+accorded to a holder of Common Stock. 171,585 shares of Common Stock (subject to
+equitable adjustment for any reorganization, recapitalization, non-cash
+dividend, stock split or other similar transaction) have been duly authorized
+and reserved for issuance as Additional Commitment Shares in accordance with
+this Agreement. The issuance of the Securities has been registered under the
+Securities Act by the Company pursuant to the Registration Statement. Upon
+receipt of the Purchase Shares and the Commitment Shares, the Investor will have
+good and marketable title to such Securities and such Securities will be
+immediately freely tradable on the Principal Market.
+
+(e)    No Conflicts. The execution, delivery and performance of the Transaction
+Documents by the Company and the consummation by the Company of the transactions
+contemplated hereby and thereby (including, without limitation, the issuance of
+the Initial Commitment Shares and the reservation for issuance and issuance of
+the Purchase Shares and the Additional Commitment Shares) will not (i) result in
+a violation of the Certificate of Incorporation, any Certificate of
+Designations, Preferences and Rights of any outstanding series of preferred
+stock of the Company or the Bylaws or (ii) conflict with, or constitute a
+default (or an event which with notice or lapse of time or both would become a
+default) under, or give to others any rights of termination, amendment,
+acceleration or cancellation of, any agreement, indenture or instrument to which
+the Company is a party, or result in a violation of any law, rule, regulation,
+order, judgment or decree (including federal and state securities laws and
+regulations and the rules and regulations of the Principal Market applicable to
+the Company) or by which any property or asset of the Company or any of its
+Subsidiaries is bound or affected, except in the case of conflicts, defaults,
+terminations, amendments, accelerations, cancellations and violations under
+clause (ii), which would not reasonably be expected to result in a Material
+Adverse Effect. Neither the Company nor any of its Subsidiaries is in
+
+ 
+
+13
+
+
+
+--------------------------------------------------------------------------------
+
+violation of any term of or is in default under any material contract,
+agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or
+order or any statute, rule or regulation applicable to the Company or its
+Subsidiaries, except for possible conflicts, defaults, terminations or
+amendments which could not reasonably be expected to have a Material Adverse
+Effect. The business of the Company and its Subsidiaries is not being conducted,
+and shall not be conducted, in violation of any law, ordinance, regulation of
+any governmental entity, except for possible violations, the sanctions for which
+either individually or in the aggregate could not reasonably be expected to have
+a Material Adverse Effect. Except as specifically contemplated by this Agreement
+and as required under the Securities Act or applicable state securities laws and
+the rules and regulations of the Principal Market and under the Corporate
+Financing Rule 5110 of the FINRA, the Company is not required to obtain any
+consent, authorization or order of, or make any filing or registration with, any
+court or governmental agency or any regulatory or self-regulatory agency in
+order for it to execute, deliver or perform any of its obligations under or
+contemplated by the Transaction Documents in accordance with the terms hereof or
+thereof. Except as set forth elsewhere in this agreement, all consents,
+authorizations, orders, filings and registrations which the Company is required
+to obtain pursuant to the preceding sentence shall be obtained or effected on or
+prior to the Commencement Date. Since one year prior to the date hereof, the
+Company has not received nor delivered any notices or correspondence from or to
+the Principal Market other than in connection with supplemental listing
+applications for the listing of additional shares of the Company’s equity
+securities or any correspondence from or to the Principal Market which the
+Company was not required to disclose in its SEC Documents (as defined below).
+The Principal Market has not commenced any delisting proceedings against the
+Company.
+
+(f)    SEC Documents; Financial Statements. The Company has filed all reports,
+schedules, forms, statements and other documents required to be filed by the
+Company under the Securities Act and the Exchange Act, including pursuant to
+Section 13(a) or 15(d) thereof, for the twelve months preceding the date hereof
+(or such shorter period as the Company was required by law or regulation to file
+such material) (the foregoing materials, including the exhibits thereto and
+documents incorporated by reference therein, being collectively referred to
+herein as the “SEC Documents”) on a timely basis or has received a valid
+extension of such time of filing and has filed any such SEC Documents prior to
+the expiration of any such extension. As of their respective dates and to the
+Company’s knowledge, the SEC Documents complied in all material respects with
+the requirements of the Securities Act and the Exchange Act, as
+applicable.    None of the SEC Documents, when filed, contained any untrue
+statement of a material fact or omitted to state a material fact required to be
+stated therein or necessary in order to make the statements therein, in the
+light of the circumstances under which they were made, not misleading. The
+financial statements of the Company included in the SEC Documents comply in all
+material respects with applicable accounting requirements and the rules and
+regulations of the SEC with respect thereto as in effect at the time of
+filing. Such financial statements (i) have been prepared in accordance with
+United States generally accepted accounting principles applied on a consistent
+basis during the periods involved (“GAAP”), except as may be otherwise specified
+in such financial statements or the notes thereto and except that unaudited
+financial statements may not contain all footnotes required by GAAP, and
+(ii) fairly present in all material respects the financial position of the
+Company and its consolidated Subsidiaries as of and for the dates thereof and
+the results of operations and cash flows for the periods then ended, subject, in
+the case of unaudited statements, to normal, immaterial, year-end audit
+adjustments. Except as publicly available through the SEC’s Electronic Data
+Gathering, Analysis, and Retrieval system (EDGAR) or in connection with a
+confidential treatment request submitted to the SEC, the Company has received no
+notices or correspondence from the SEC for the one year preceding the date
+hereof other than SEC comment letters relating to the Company’s filings under
+the Exchange Act and the Securities Act. There are no “open” SEC comments. To
+the Company’s knowledge, the SEC has not commenced any enforcement proceedings
+against the Company or any of its Subsidiaries.
+
+ 
+
+14
+
+
+
+--------------------------------------------------------------------------------
+
+(g)    Absence of Certain Changes. Except as disclosed in the Registration
+Statement or the SEC Documents, since December 31, 2018, there has been no
+material adverse change in the business, properties, operations, financial
+condition or results of operations of the Company or its Subsidiaries. The
+Company has not taken any steps, and does not currently expect to take any
+steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or
+any of its Subsidiaries have any knowledge or reason to believe that its
+creditors intend to initiate involuntary bankruptcy or insolvency proceedings.
+The Company is financially solvent and is generally able to pay its debts as
+they become due.
+
+(h)    Absence of Litigation. Except as disclosed in the Registration Statement
+or the SEC Documents, there is no action, suit, proceeding, inquiry or
+investigation before or by any court, public board, government agency,
+self-regulatory organization or body pending or, to the knowledge of the Company
+or any of its Subsidiaries, threatened against or affecting the Company, the
+Common Stock or any of the Company’s Subsidiaries or any of the Company’s or the
+Company’s Subsidiaries’ officers or directors in their capacities as such, which
+would reasonably be expected to have a Material Adverse Effect.
+
+(i)    Acknowledgment Regarding Investor’s Status. The Company acknowledges and
+agrees that the Investor is acting solely in the capacity of arm’s length
+purchaser with respect to the Transaction Documents and the transactions
+contemplated hereby and thereby. The Company further acknowledges that the
+Investor is not acting as a financial advisor or fiduciary of the Company (or in
+any similar capacity) with respect to the Transaction Documents and the
+transactions contemplated hereby and thereby and any advice given by the
+Investor or any of its representatives or agents in connection with the
+Transaction Documents and the transactions contemplated hereby and thereby is
+merely incidental to the Investor’s purchase of the Securities. The Company
+further represents to the Investor that the Company’s decision to enter into the
+Transaction Documents has been based solely on the independent evaluation by the
+Company and its representatives and advisors.
+
+(j)    No Integrated Offering. Neither the Company, nor any of its affiliates,
+nor any Person acting on its or their behalf has, directly or indirectly, made
+any offers or sales of any security or solicited any offers to buy any security,
+under circumstances that would cause this offering of the Securities to be
+integrated with prior offerings by the Company in a manner that would require
+stockholder approval pursuant to the rules of the Principal Market on which any
+of the securities of the Company are listed or designated. The issuance and sale
+of the Securities hereunder does not contravene the rules and regulations of the
+Principal Market.
+
+(k)    Intellectual Property Rights. Except as disclosed in the Registration
+Statement or the SEC Documents, the Company and its Subsidiaries own or possess
+adequate rights or licenses to use all material trademarks, trade names, service
+marks, service mark registrations, service names, patents, patent rights,
+copyrights, inventions, licenses, approvals, governmental authorizations, trade
+secrets and rights necessary to conduct their respective businesses as now
+conducted. None of the Company’s material trademarks, trade names, service
+marks, service mark registrations, service names, patents, patent rights,
+copyrights, inventions, licenses, approvals, government authorizations, trade
+secrets or other intellectual property rights have expired or terminated, or, by
+the terms and conditions thereof, could expire or terminate within two years
+from the date of this Agreement, except as would not reasonably be expected to
+have a Material Adverse Effect.    The Company and its Subsidiaries do not have
+any knowledge of any infringement by the Company or its Subsidiaries of any
+material trademark, trade name rights, patents, patent rights, copyrights,
+inventions, licenses, service names, service marks, service mark registrations,
+trade secret or other similar rights of others, and there is no claim, action or
+proceeding being made or brought against, or to the Company’s knowledge, being
+threatened against, the Company or its Subsidiaries regarding trademark, trade
+name, patents, patent rights, invention, copyright, license, service names,
+service marks, service mark registrations, trade secret or other infringement,
+which would reasonably be expected to have a Material Adverse Effect.
+
+ 
+
+15
+
+
+
+--------------------------------------------------------------------------------
+
+(l)    Environmental Laws. Except as disclosed in the Registration Statement or
+the SEC Documents, the Company and its Subsidiaries (i) are in compliance with
+any and all applicable foreign, federal, state and local laws and regulations
+relating to the protection of human health and safety, the environment or
+hazardous or toxic substances or wastes, pollutants or contaminants
+(“Environmental Laws”), (ii) have received all permits, licenses or other
+approvals required of them under applicable Environmental Laws to conduct their
+respective businesses and (iii) are in compliance with all terms and conditions
+of any such permit, license or approval, except where, in each of the three
+foregoing clauses, the failure to so comply could not reasonably be expected to
+have, individually or in the aggregate, a Material Adverse Effect.
+
+(m)    Title Except as disclosed in the Registration Statement or the SEC
+Documents, the Company and the Subsidiaries have good and marketable title in
+fee simple to all real property owned by them and good and marketable title in
+all personal property owned by them that is material to the business of the
+Company and the Subsidiaries, in each case free and clear of all liens,
+encumbrances and defects (“Liens”) and, except for Liens as do not materially
+affect the value of such property and do not materially interfere with the use
+made and proposed to be made of such property by the Company and the
+Subsidiaries and Liens for the payment of federal, state or other taxes, the
+payment of which is neither delinquent nor subject to penalties. Any real
+property and facilities held under lease by the Company and the Subsidiaries are
+held by them under valid, subsisting and enforceable leases with which the
+Company and the Subsidiaries are in compliance with such exceptions as are not
+material and do not interfere with the use made and proposed to be made of such
+property and buildings by the Company and its Subsidiaries.
+
+(n)    Insurance. The Company and each of its Subsidiaries are insured by
+insurers of recognized financial responsibility against such losses and risks
+and in such amounts as management of the Company believes to be prudent and
+customary in the businesses in which the Company and its Subsidiaries are
+engaged. Neither the Company nor any such Subsidiary has been refused any
+insurance coverage sought or applied for and neither the Company nor any such
+Subsidiary has any reason to believe that it will not be able to renew its
+existing insurance coverage as and when such coverage expires or to obtain
+similar coverage from similar insurers as may be necessary to continue its
+business at a cost that would not materially and adversely affect the financial
+condition or the earnings, business or operations of the Company and its
+Subsidiaries, taken as a whole.
+
+(o)    Regulatory Permits. Except as disclosed in the Registration Statement or
+the SEC Documents, the Company and its Subsidiaries possess all certificates,
+authorizations and permits issued by the appropriate federal, state or foreign
+regulatory authorities necessary to conduct their respective businesses as
+currently conducted, except where the failure to possess such certificates,
+authorizations, or permits would not reasonably be expected to have a Material
+Adverse Effect, and neither the Company nor any such Subsidiary has received any
+notice of proceedings relating to the revocation or modification of any such
+certificate, authorization or permit.
+
+(p)    Tax Status. Except as disclosed in the Registration Statement or the SEC
+Documents, the Company and each of its Subsidiaries has made or filed all
+federal and state income and all other material tax returns, reports and
+declarations required by any jurisdiction to which it is subject (unless and
+only to the extent that the Company and each of its Subsidiaries has set aside
+on its books provisions reasonably adequate for the payment of all unpaid and
+unreported taxes) and has paid all taxes and other governmental assessments and
+charges that are material in amount, shown or determined to be due on such
+returns, reports and declarations, except those being contested in good faith
+and has set aside on its books provision reasonably adequate for the payment of
+all taxes for periods subsequent to the periods to which such returns, reports
+or declarations apply. There are no unpaid taxes in any amount claimed to be due
+by the taxing authority of any jurisdiction, except as would not reasonably be
+expected to have a Material Adverse Effect, and the officers of the Company know
+of no basis for any such claim.
+
+ 
+
+16
+
+
+
+--------------------------------------------------------------------------------
+
+(q)    Transactions With Affiliates. Except as disclosed in the Registration
+Statement or the SEC Documents, none of the officers or directors of the Company
+and, to the knowledge of the Company, none of the employees of the Company is
+presently a party to any transaction with the Company or any Subsidiary (other
+than for services as employees, officers and directors), including any contract,
+agreement or other arrangement providing for the furnishing of services to or
+by, providing for rental of real or personal property to or from, or otherwise
+requiring payments to or from any officer, director or such employee or, to the
+knowledge of the Company, any entity in which any officer, director, or any such
+employee has a substantial interest or is an officer, director, trustee or
+partner, in each case in excess of $120,000 other than for (i) payment of salary
+or consulting fees for services rendered, (ii) reimbursement for expenses
+incurred on behalf of the Company and (iii) other employee benefits, including
+stock option agreements under any stock option plan of the Company.
+
+(r)    Application of Takeover Protections. The Company and its Board of
+Directors have taken or will take prior to the Commencement Date all necessary
+action, if any, in order to render inapplicable any control share acquisition,
+business combination, poison pill (including any distribution under a rights
+agreement) or other similar anti-takeover provision under the Certificate of
+Incorporation or the laws of the state of its incorporation which is or could
+become applicable to the Investor as a result of the transactions contemplated
+by this Agreement, including, without limitation, the Company’s issuance of the
+Securities and the Investor’s ownership of the Securities.
+
+(s)    Disclosure. Except with respect to the material terms and conditions of
+the transactions contemplated by the Transaction Documents that will be timely
+publicly disclosed by the Company, the Company confirms that neither it nor any
+other Person acting on its behalf has provided the Investor or its agents or
+counsel with any information that it believes constitutes or might constitute
+material, non-public information which is not otherwise disclosed in the
+Registration Statement or any Prospectus Supplements thereto.    The Company
+understands and confirms that the Investor will rely on the foregoing
+representation in effecting purchases and sales of securities of the
+Company. All of the disclosure furnished by or on behalf of the Company to the
+Investor regarding the Company, its business and the transactions contemplated
+hereby, including the disclosure schedules to this Agreement, is true and
+correct in all material respects and does not contain any untrue statement of a
+material fact or omit to state any material fact necessary in order to make the
+statements made therein, in light of the circumstances under which they were
+made, not misleading. The press releases disseminated by the Company during the
+12 months preceding the date of this Agreement taken as a whole do not contain
+any untrue statement of a material fact or omit to state a material fact
+required to be stated therein or necessary in order to make the statements
+therein, in light of the circumstances under which they were made and when made,
+not misleading. The Company acknowledges and agrees that the Investor neither
+makes nor has made any representations or warranties with respect to the
+transactions contemplated hereby other than those specifically set forth in
+Section 3 hereof.
+
+(t)    Foreign Corrupt Practices. Neither the Company, nor to the knowledge of
+the Company, any agent or other Person acting on behalf of the Company, has
+(i) directly or indirectly, used any funds for unlawful contributions, gifts,
+entertainment or other unlawful expenses related to foreign or domestic
+political activity, (ii) made any unlawful payment to foreign or domestic
+government officials or employees or to any foreign or domestic political
+parties or campaigns from corporate funds, (iii) failed to disclose fully any
+contribution made by the Company (or made by any Person acting on its behalf of
+which the Company is aware) which is in violation of law, or (iv) violated in
+any material respect any provision of the Foreign Corrupt Practices Act of 1977,
+as amended.
+
+(u)    Registration Statement. The Company has prepared and filed with the SEC
+in accordance with the provisions of the Securities Act the Registration
+Statement. The Registration Statement was declared effective by order of the SEC
+on February 10, 2020. The Registration Statement is effective
+
+ 
+
+17
+
+
+
+--------------------------------------------------------------------------------
+
+pursuant to the Securities Act and available for the issuance of the Securities
+thereunder, and the Company has not received any written notice that the SEC has
+issued or intends to issue a stop order or other similar order with respect to
+the Registration Statement or the Prospectus or that the SEC otherwise has
+(i) suspended or withdrawn the effectiveness of the Registration Statement or
+(ii) issued any order preventing or suspending the use of the Prospectus or any
+Prospectus Supplement, in either case, either temporarily or permanently or
+intends or has threatened in writing to do so. The “Plan of Distribution”
+section of the Prospectus permits the issuance of the Securities hereunder. At
+the time the Registration Statement and any amendments thereto became effective,
+at the date of this Agreement and at each deemed effective date thereof pursuant
+to Rule 430B(f)(2) of the Securities Act, the Registration Statement and any
+amendments thereto complied and will comply in all material respects with the
+requirements of the Securities Act and did not and will not contain any untrue
+statement of a material fact or omit to state any material fact required to be
+stated therein or necessary to make the statements therein not misleading; and
+the Base Prospectus and any Prospectus Supplement thereto, at the time such Base
+Prospectus or such Prospectus Supplement thereto was issued and on the
+Commencement Date, complied and will comply in all material respects with the
+requirements of the Securities Act and did not and will not contain an untrue
+statement of a material fact or omit to state a material fact necessary in order
+to make the statements therein, in light of the circumstances under which they
+were made, not misleading; provided that this representation and warranty does
+not apply to statements in or omissions from any Prospectus Supplement made in
+reliance upon and in conformity with information relating to the Investor
+furnished to the Company in writing by or on behalf of the Investor expressly
+for use therein. The Company meets all of the requirements for the use of a
+registration statement on Form S-3 pursuant to the Securities Act for the
+offering and sale of the Securities contemplated by this Agreement without
+reliance on General Instruction I.B.6. of Form S-3, and the SEC has not notified
+the Company of any objection to the use of the form of the Registration
+Statement pursuant to Rule 401(g)(1) of the Securities Act. The Registration
+Statement, as of its effective date, meets the requirements set forth in Rule
+415(a)(1)(x) pursuant to the Securities Act. The Company has not been since
+December 31, 2018, and currently is not, an Ineligible Issuer (as defined in
+Rule 405 of the Securities Act). The Company has not distributed any offering
+material in connection with the offering and sale of any of the Securities, and,
+until the Investor does not hold any of the Securities, shall not distribute any
+offering material in connection with the offering and sale of any of the
+Securities, to or by the Investor, in each case, other than the Registration
+Statement or any amendment thereto, the Prospectus or any Prospectus Supplement
+required pursuant to applicable law or the Transaction Documents. The Company
+has not made, and agrees that unless it obtains the prior written consent of the
+Investor it will not make, an offer relating to the Securities that would
+constitute a “free writing prospectus” as defined in Rule 405 under the
+Securities Act. The Company shall comply with the requirements of Rules 164 and
+433 under the Securities Act applicable to any such free writing prospectus
+consented to by the Investor, including in respect of timely filing with the
+SEC, legending and record keeping. The offering of the Securities pursuant to
+this Agreement qualifies for the exemption from the filing requirements of Rule
+5110 of the FINRA afforded by FINRA Rule 5110(b)(7)(C)(i).
+
+(v)    DTC Eligibility. The Company, through the Transfer Agent, currently
+participates in the DTC Fast Automated Securities Transfer (FAST) Program and
+the Common Stock can be transferred electronically to third parties via the DTC
+Fast Automated Securities Transfer (FAST) Program.
+
+(w)    Sarbanes-Oxley. The Company is in material compliance with all provisions
+of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as of
+the date hereof.
+
+(x)    Certain Fees. Except as disclosed on Schedule 4(x), no brokerage or
+finder’s fees or commissions are or will be payable by the Company to any
+broker, financial advisor or consultant, finder, placement agent, investment
+banker, bank or other Person with respect to the transactions contemplated by
+the Transaction Documents. Except as disclosed on Schedule 4(x), the Investor
+shall have no obligation with respect to any fees or with respect to any claims
+made by or on behalf of other Persons for fees of a type contemplated in this
+Section 4(x) that may be due in connection with the transactions contemplated by
+the Transaction Documents.
+
+ 
+
+18
+
+
+
+--------------------------------------------------------------------------------
+
+(y)    Investment Company. The Company is not required to be registered as, and
+immediately after receipt of payment for the Securities will not be required to
+be registered as, an “investment company” within the meaning of the Investment
+Company Act of 1940, as amended.
+
+(z)    Listing and Maintenance Requirements. The Common Stock is registered
+pursuant to Section 12(b) of the Exchange Act, and the Company has taken no
+action designed to, or which to its knowledge is likely to have the effect of,
+terminating the registration of the Common Stock pursuant to the Exchange Act
+nor has the Company received any notification that the SEC is currently
+contemplating terminating such registration. The Company has not, in the twelve
+(12) months preceding the date hereof, received any notice from the Principal
+Market to the effect that the Company is not in compliance with the listing or
+maintenance requirements of the Principal Market. The Company is in compliance
+with all such listing and maintenance requirements.
+
+(aa)    Accountants. The Company’s accountants are set forth in the SEC
+Documents and, to the knowledge of the Company, such accountants are an
+independent registered public accounting firm as required by the Securities Act.
+
+(bb)    No Market Manipulation. The Company has not, and to its knowledge no
+Person acting on its behalf has, (i) taken, directly or indirectly, any action
+designed to cause or to result in the stabilization or manipulation of the price
+of any security of the Company to facilitate the sale or resale of any of the
+Securities, (ii) sold, bid for, purchased, or, paid any compensation for
+soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay
+to any Person any compensation for soliciting another to purchase any other
+securities of the Company.
+
+(cc)    Shell Company Status. The Company is not currently, and has not been
+within the prior 12 months, an issuer identified in Rule 144(i)(1) under the
+Securities Act.
+
+ 
+
+5.
+
+COVENANTS.
+
+(a)    Filing of Current Report and Initial Prospectus Supplement. The Company
+agrees that it shall, within the time required under the Exchange Act, file with
+the SEC a current report on Form 8-K relating to the transactions contemplated
+by, and describing the material terms and conditions of, the Transaction
+Documents (the “Current Report”). The Company further agrees that it shall,
+within the time required under Rule 424(b) under the Securities Act, file with
+the SEC the Initial Prospectus Supplement pursuant to Rule 424(b) under the
+Securities Act specifically relating to the transactions contemplated by, and
+describing the material terms and conditions of, the Transaction Documents,
+containing information previously omitted at the time of effectiveness of the
+Registration Statement in reliance on Rule 430B under the Securities Act, and
+disclosing all information relating to the transactions contemplated hereby
+required to be disclosed in the Registration Statement and the Prospectus as of
+the date of the Initial Prospectus Supplement, including, without limitation,
+information required to be disclosed in the section captioned “Plan of
+Distribution” in the Prospectus. The Investor acknowledges that it will be
+identified in the Initial Prospectus Supplement as an underwriter within the
+meaning of Section 2(a)(11) of the Securities Act. The Company shall permit the
+Investor to review and comment upon the Current Report and the Initial
+Prospectus Supplement at least two (2) Business Days prior to their filing with
+the SEC, the Company shall give due consideration to all such comments, and the
+Company shall not file the Current Report or the Initial Prospectus Supplement
+with the SEC in a form to which the Investor reasonably objects. The Investor
+shall use its reasonable best efforts to comment upon the Current Report and the
+Initial Prospectus Supplement within one (1) Business Day from the date the
+Investor receives the final pre-filing draft version
+
+ 
+
+19
+
+
+
+--------------------------------------------------------------------------------
+
+thereof from the Company. The Investor shall furnish to the Company such
+information regarding itself, the Securities held by it and the intended method
+of distribution thereof, including any arrangement between the Investor and any
+other Person relating to the sale or distribution of the Securities, as shall be
+reasonably requested by the Company in connection with the preparation and
+filing of the Current Report and the Initial Prospectus Supplement, and shall
+otherwise cooperate with the Company as reasonably requested by the Company in
+connection with the preparation and filing of the Current Report and the Initial
+Prospectus Supplement with the SEC.
+
+(b)    Blue Sky. The Company shall take all such action, if any, as is
+reasonably necessary in order to obtain an exemption for or to register or
+qualify (i) the issuance of the Commitment Shares and the sale of the Purchase
+Shares to the Investor under this Agreement and (ii) any subsequent resale of
+all Commitment Shares and all Purchase Shares by the Investor, in each case,
+under applicable securities or “Blue Sky” laws of the states of the United
+States in such states as is reasonably requested by the Investor from time to
+time, and shall provide evidence of any such action so taken to the Investor.
+
+(c)    Listing/DTC. The Company shall promptly secure the listing of all of the
+Purchase Shares and Commitment Shares to be issued to the Investor hereunder on
+the Principal Market (subject to official notice of issuance) and upon each
+other national securities exchange or automated quotation system, if any, upon
+which the Common Stock is then listed, and shall use commercially reasonable
+efforts to maintain, so long as any shares of Common Stock shall be so listed,
+such listing of all such Securities from time to time issuable hereunder. The
+Company shall use commercially reasonable efforts to maintain the listing of the
+Common Stock on the Principal Market and shall comply in all respects with the
+Company’s reporting, filing and other obligations under the bylaws or rules and
+regulations of the Principal Market. Neither the Company nor any of its
+Subsidiaries shall take any action that would reasonably be expected to result
+in the delisting or suspension of the Common Stock on the Principal Market. The
+Company shall promptly, and in no event later than the following Business Day,
+provide to the Investor copies of any notices it receives from the Principal
+Market regarding the continued eligibility of the Common Stock for listing on
+the Principal Market; provided, however, that the Company shall not be required
+to provide the Investor copies of any such notice that the Company reasonably
+believes constitutes material non-public information and the Company would not
+be required to publicly disclose such notice in any report or statement filed
+with the SEC under the Exchange Act (including on Form 8-K) or the Securities
+Act. The Company shall pay all fees and expenses in connection with satisfying
+its obligations under this Section 5(c). The Company shall take all action
+necessary to ensure that its Common Stock can be transferred electronically as
+DWAC Shares.
+
+(d)    Prohibition of Short Sales and Hedging Transactions. The Investor agrees
+that beginning on the date of this Agreement and ending on the date of
+termination of this Agreement as provided in Section 11, the Investor and its
+agents, representatives and affiliates shall not in any manner whatsoever enter
+into or effect, directly or indirectly, any (i) “short sale” (as such term is
+defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock
+or (ii) hedging transaction, which establishes a net short position with respect
+to the Common Stock.
+
+(e)    Issuance of Commitment Shares. In consideration for the Investor’s
+execution and delivery of this Agreement, the Company shall cause to be issued
+to the Investor a total of 343,171 shares of Common Stock (the “Initial
+Commitment Shares”) immediately upon the execution of this Agreement and shall
+deliver to the Transfer Agent the Irrevocable Transfer Agent Instructions with
+respect to the issuance of such Initial Commitment Shares. The Company shall
+cause to be issued to the Investor up to 171,585 shares of Common Stock (the
+“Additional Commitment Shares” and, collectively with the Initial Commitment
+Shares, the “Commitment Shares”), as follows: in connection with each purchase
+of Purchase Shares hereunder, the Company shall issue to the Investor a number
+of shares of Common Stock equal to the product of (i) 171,585 and (y) the
+Purchase Amount Fraction. The “Purchase Amount Fraction” shall
+
+ 
+
+20
+
+
+
+--------------------------------------------------------------------------------
+
+mean a fraction, the numerator of which is the Purchase Amount purchased by the
+Investor with respect to such purchase of Purchase Shares and the denominator of
+which is Twenty-Five Million Dollars ($25,000,000). The Additional Commitment
+Shares shall be equitably adjusted for any reorganization, recapitalization,
+non-cash dividend, stock split or other similar transaction. For the avoidance
+of doubt, (1) all of the Initial Commitment Shares shall be fully earned as of
+the date of this Agreement, whether or not the Commencement shall occur or any
+Purchase Shares (other than the Initial Purchase Shares) are purchased by the
+Investor under this Agreement and irrespective of any subsequent termination of
+this Agreement and (2) the Additional Commitment Shares shall be fully earned as
+of the date of their issuance to the Investor pursuant to this Agreement,
+irrespective of any subsequent termination of this Agreement.
+
+(f)    Due Diligence; Non-Public Information. The Investor shall have the right,
+from time to time as the Investor may reasonably deem appropriate and upon
+reasonable advance notice to the Company, to perform reasonable due diligence on
+the Company during normal business hours. The Company and its officers and
+employees shall provide information and reasonably cooperate with the Investor
+in connection with any reasonable request by the Investor related to the
+Investor’s due diligence of the Company. Each party hereto agrees not to
+disclose any Confidential Information of the other party to any third party and
+shall not use the Confidential Information for any purpose other than in
+connection with, or in furtherance of, the transactions contemplated hereby.
+Each party hereto acknowledges that the Confidential Information shall remain
+the property of the disclosing party and agrees that it shall take all
+reasonable measures to protect the secrecy of any Confidential Information
+disclosed by the other party. The receiving party may disclose Confidential
+Information to the extent such information is required to be disclosed by law,
+regulation or order of a court of competent jurisdiction or regulatory
+authority, provided that the receiving party shall promptly notify the
+disclosing party when such requirement to disclose arises, and shall cooperate
+with the disclosing party so as to enable the disclosing party to: (i) seek an
+appropriate protective order; and (ii) make any applicable claim of
+confidentiality in respect of such Confidential Information; and provided,
+further, that the receiving party shall disclose Confidential Information only
+to the extent required by the protective order or other similar order, if such
+an order is obtained, and, if no such order is obtained, the receiving party
+shall disclose only the minimum amount of such Confidential Information required
+to be disclosed in order to comply with the applicable law, regulation or order.
+In addition, any such Confidential Information disclosed pursuant to this
+section shall continue to be deemed Confidential Information. Notwithstanding
+anything in this Agreement to the contrary, the Company and the Investor agree
+that neither the Company nor any other Person acting on its behalf shall provide
+the Investor or its agents or counsel with any information that constitutes or
+may reasonably be considered to constitute material, non-public information,
+unless a simultaneous public announcement thereof is made by the Company in the
+manner contemplated by Regulation FD. In the event of a breach of the foregoing
+covenant by the Company or any Person acting on its behalf (as determined in the
+reasonable good faith judgment of the Investor), in addition to any other remedy
+provided herein or in the other Transaction Documents, the Investor shall have
+the right to make a public disclosure, in the form of a press release, public
+advertisement or otherwise, of such material, non-public information without the
+prior approval by the Company; provided the Investor shall have first provided
+notice to the Company that it believes it has received information that
+constitutes material, non-public information, the Company shall have at least 24
+hours to publicly disclose such material, non-public information prior to any
+such disclosure by the Investor, and the Company shall have failed to publicly
+disclose such material, non-public information within such time period. The
+Investor shall not have any liability to the Company, any of its Subsidiaries,
+or any of their respective directors, officers, employees, stockholders or
+agents, for any such disclosure. The Company understands and confirms that the
+Investor shall be relying on the foregoing covenants in effecting transactions
+in securities of the Company.
+
+ 
+
+21
+
+
+
+--------------------------------------------------------------------------------
+
+(g)     Purchase Records. The Investor and the Company shall each maintain
+records showing the remaining Available Amount at any given time and the dates
+and Purchase Amounts for each Regular Purchase, Accelerated Purchase and
+Additional Accelerated Purchase or shall use such other method, reasonably
+satisfactory to the Investor and the Company.
+
+(h)    Taxes. The Company shall pay any and all transfer, stamp or similar taxes
+that may be payable with respect to the issuance and delivery of any shares of
+Common Stock to the Investor made under this Agreement.
+
+(i)    Effective Registration Statement; Current Prospectus; Securities Law
+Compliance. The Company shall use its commercially reasonable efforts to keep
+the Registration Statement effective pursuant to Rule 415 promulgated under the
+Securities Act, and to keep the Registration Statement and the Prospectus
+current and available for issuances and sales of all of the Securities by the
+Company to the Investor, and for the resale by the Investor, at all times until
+the earlier of (i) the date on which the Investor shall have sold all the
+Securities and no Available Amount remains under this Agreement and (ii) 180
+days following the earlier of termination of this Agreement and the Maturity
+Date (the “Registration Period”). Without limiting the generality of the
+foregoing, during the Registration Period, the Company shall (a) take all action
+necessary to cause the Common Stock to continue to be registered as a class of
+securities under Sections 12(b) or 12(g) of the Exchange Act, shall comply with
+its reporting and filing obligations under the Exchange Act, and shall not take
+any action or file any document (whether or not permitted by the Exchange Act)
+to terminate or suspend such registration or to terminate or suspend its
+reporting and filing obligations under the Exchange Act, and (b) prepare and
+file with the SEC, at the Company’s expense, such amendments (including, without
+limitation, post-effective amendments) to the Registration Statement and such
+Prospectus Supplements pursuant to Rule 424(b) under the Securities Act, in each
+case, as may be necessary to keep the Registration Statement effective pursuant
+to Rule 415 promulgated under the Securities Act, and to keep the Registration
+Statement and the Prospectus current and available for issuances and sales of
+all of the Securities by the Company to the Investor, and for the resale of all
+of the Securities by the Investor, at all times during the Registration Period
+(it being hereby acknowledged and agreed that the Company shall prepare and file
+with the SEC, at the Company’s expense, immediately prior to the third
+anniversary of the initial effective date of the Registration Statement (the
+“Renewal Date”), a new Registration Statement relating to the Securities, in a
+form satisfactory to the Investor and its counsel, and the Company shall use its
+commercially reasonable efforts to cause such Registration Statement to be
+declared effective within 180 days after the Renewal Date unless the
+Registration Period has lapsed). The Investor shall furnish to the Company such
+information regarding itself, the Securities held by it and the intended method
+of distribution thereof as shall be reasonably requested by the Company in
+connection with the preparation and filing of any such amendment to the
+Registration Statement (or new Registration Statement) or any such Prospectus
+Supplement, and shall otherwise cooperate with the Company as reasonably
+requested by the Company in connection with the preparation and filing of any
+such amendment to the Registration Statement (or new Registration Statement) or
+any such Prospectus Supplement. The Company shall comply with all applicable
+federal, state and foreign securities laws in connection with the offer,
+issuance and sale of the Securities contemplated by the Transaction Documents.
+Without limiting the generality of the foregoing, neither the Company nor any of
+its officers, directors or affiliates acting on the Company’s behalf will take,
+directly or indirectly, any action designed or intended to stabilize or
+manipulate the price of any security of the Company, or which would reasonably
+be expected to cause or result in, stabilization or manipulation of the price of
+any security of the Company.
+
+(j)    Stop Orders. The Company shall advise the Investor promptly (but in no
+event later than 24 hours) and shall confirm such advice in writing: (i) of the
+Company’s receipt of notice of any request by the SEC for amendment of or a
+supplement to the Registration Statement, the Prospectus, any Prospectus
+Supplement or for any additional information with respect thereto; (ii) of the
+Company’s receipt of notice of the issuance by the SEC of any stop order
+suspending the effectiveness of the Registration Statement or prohibiting or
+suspending the use of the Prospectus or any Prospectus Supplement, or of the
+Company’s receipt of any notification of the suspension of qualification of the
+Securities for offering or sale in any
+
+ 
+
+22
+
+
+
+--------------------------------------------------------------------------------
+
+jurisdiction or the initiation or contemplated initiation of any proceeding for
+such purpose; and (iii) of the Company becoming aware of the happening of any
+event which makes any statement of a material fact made in the Registration
+Statement, the Prospectus or any Prospectus Supplement untrue or which requires
+the making of any additions to or changes to the statements then made in the
+Registration Statement, the Prospectus or any Prospectus Supplement in order to
+state a material fact required by the Securities Act to be stated therein or
+necessary in order to make the statements then made therein (in the case of the
+Prospectus or any Prospectus Supplement, in light of the circumstances under
+which they were made) not misleading, or of the necessity to amend the
+Registration Statement or supplement the Prospectus or any Prospectus Supplement
+to comply with the Securities Act or any other law. The Company shall not be
+required to disclose to the Investor the substance or specific reasons of any of
+the events set forth in clauses (i) through (iii) of the immediately preceding
+sentence, but rather, shall only be required to disclose that the event has
+occurred. The Company shall not deliver to the Investor any Regular Purchase
+Notice, Accelerated Purchase Notice or Additional Accelerated Purchase Notice,
+and the Investor shall not be obligated to purchase any shares of Common Stock
+under this Agreement, during the continuation or pendency of any of the
+foregoing events. If at any time the SEC shall issue any stop order suspending
+the effectiveness of the Registration Statement or prohibiting or suspending the
+use of the Prospectus or any Prospectus Supplement, the Company shall use
+commercially reasonable efforts to obtain the withdrawal of such order at the
+earliest possible time. The Company shall furnish to the Investor, without
+charge, a copy of any correspondence from the SEC or the staff of the SEC to the
+Company or its representatives relating to the Registration Statement or the
+Prospectus, as the case may be.
+
+(k)    Amendments to Registration Statement; Prospectus Supplements. Except as
+provided in this Agreement and other than periodic and current reports required
+to be filed pursuant to the Exchange Act, the Company shall not file with the
+SEC any amendment to the Registration Statement or any supplement to the Base
+Prospectus that refers to the Investor, the Transaction Documents or the
+transactions contemplated thereby (including, without limitation, any Prospectus
+Supplement filed in connection with the transactions contemplated by the
+Transaction Documents), in each case with respect to which (a) the Investor
+shall not previously have been advised and afforded the opportunity to review
+and comment thereon at least two (2) Business Days prior to filing with the SEC,
+as the case may be, (b) the Company shall not have given due consideration to
+any comments thereon received from the Investor or its counsel, or (c) the
+Investor shall reasonably object, unless the Company reasonably has determined
+that it is necessary to amend the Registration Statement or make any supplement
+to the Prospectus to comply with the Securities Act or any other applicable law
+or regulation, in which case the Company shall promptly (but in no event later
+than 24 hours) so inform the Investor, the Investor shall be provided with a
+reasonable opportunity to review and comment upon any disclosure referring to
+the Investor, the Transaction Documents or the transactions contemplated
+thereby, as applicable, and the Company shall expeditiously furnish to the
+Investor a copy thereof. In addition, for so long as, in the reasonable opinion
+of counsel for the Investor, the Prospectus is required to be delivered in
+connection with any acquisition or sale of Securities by the Investor, the
+Company shall not file any Prospectus Supplement with respect to the Securities
+without furnishing to the Investor as many copies of such Prospectus Supplement,
+together with the Prospectus, as the Investor may reasonably request.
+
+(l)    Prospectus Delivery. The Company consents to the use of the Prospectus
+(and of each Prospectus Supplement thereto) in accordance with the provisions of
+the Securities Act and with the securities or “blue sky” laws of the
+jurisdictions in which the Securities may be sold by the Investor, in connection
+with the offering and sale of the Securities and for such period of time
+thereafter as the Prospectus is required by the Securities Act to be delivered
+in connection with sales of the Securities. The Company will make available to
+the Investor upon request, and thereafter from time to time will furnish to the
+Investor, as many copies of the Prospectus (and each Prospectus Supplement
+thereto) as the Investor may reasonably request for the purposes contemplated by
+the Securities Act within the time during which the Prospectus is required by
+the Securities Act to be delivered in connection with sales of the Securities.
+
+ 
+
+23
+
+
+
+--------------------------------------------------------------------------------
+
+If during such period of time any event shall occur that in the reasonable
+judgment of the Company and its counsel, or in the reasonable judgment of the
+Investor and its counsel, is required to be set forth in the Registration
+Statement, the Prospectus or any Prospectus Supplement or should be set forth
+therein in order to make the statements made therein (in the case of the
+Prospectus or any Prospectus Supplement, in light of the circumstances under
+which they were made) not misleading, or if in the reasonable judgment of the
+Company and its counsel, or in the reasonable judgment of the Investor and its
+counsel, it is otherwise necessary to amend the Registration Statement or
+supplement the Prospectus or any Prospectus Supplement to comply with the
+Securities Act or any other applicable law or regulation, the Company shall
+forthwith prepare and, subject to Section 5(k) above, file with the SEC an
+appropriate amendment to the Registration Statement or an appropriate Prospectus
+Supplement and in each case shall expeditiously furnish to the Investor, at the
+Company’s expense, such amendment to the Registration Statement or such
+Prospectus Supplement, as applicable, as may be necessary to reflect any such
+change or to effect such compliance. The Company shall have no obligation to
+separately advise the Investor of, or deliver copies to the Investor of, the SEC
+Documents, all of which the Investor shall be deemed to have notice and
+knowledge of.
+
+(m)    Integration. From and after the date of this Agreement, the Company will
+not, and will use its commercially reasonable efforts to ensure that no Person
+acting on its behalf will, directly or indirectly, make any offers or sales of
+any security or solicit any offers to buy any security, under circumstances that
+would cause this offering of the Securities to be integrated with other
+offerings by the Company in a manner that would require stockholder approval
+pursuant to the rules of the Principal Market on which any of the securities of
+the Company are listed or designated, unless stockholder approval is obtained
+before the closing of such subsequent transaction in accordance with the rules
+of such Principal Market.
+
+(n)    Use of Proceeds. The Company will use the net proceeds from the offering
+as described in the Prospectus.
+
+(o)    Other Transactions. The Company shall not enter into, announce or
+recommend to its stockholders any agreement, plan, arrangement or transaction in
+or of which the terms thereof would restrict, materially delay, conflict with or
+impair the ability or right of the Company to perform its obligations under the
+Transaction Documents, including, without limitation, the obligation of the
+Company to deliver the Purchase Shares and the Commitment Shares to the Investor
+in accordance with the terms of the Transaction Documents.
+
+(p)    Required Filings Relating to Purchases. To the extent required under the
+Securities Act or under interpretations by the SEC thereof, as promptly as
+practicable after the close of each of the Company’s fiscal quarters (or on such
+other dates as required under the Securities Act or under interpretations by the
+SEC thereof), the Company shall prepare a Prospectus Supplement, which will set
+forth the number of Purchase Shares sold to the Investor during such quarterly
+period (or other relevant period), the purchase price for such Purchase Shares
+and the net proceeds received by the Company from such sales, and shall file
+such Prospectus Supplement with the SEC pursuant to Rule 424(b) under the
+Securities Act (and within the time periods required by Rule 424(b) and Rule
+430B under the Securities Act). If any such quarterly Prospectus Supplement is
+not required to be filed under the Securities Act or under interpretations by
+the SEC thereof, the Company shall disclose the information referenced in the
+immediately preceding sentence in its annual report on Form 10-K or its
+quarterly report on Form 10-Q (as applicable) in respect of the quarterly period
+that ended immediately before the filing of such report in which sales of
+Purchase Shares were made to the Investor under this Agreement, and file such
+report with the SEC within the applicable time period required by the Exchange
+Act. The Company shall not file any Prospectus Supplement pursuant to this
+Section 5(p), and shall not file any report containing disclosure relating to
+such sales of Purchase Shares, unless a copy of such Prospectus Supplement or
+disclosure has been submitted to the Investor a reasonable period of time before
+the filing and the Investor has not reasonably objected thereto (it being
+acknowledged and agreed that the Company shall not submit any portion of any
+Form 10-K or Form 10-Q
+
+ 
+
+24
+
+
+
+--------------------------------------------------------------------------------
+
+other than the specific disclosure relating to any sales of Purchase Shares).
+The Company shall also furnish copies of all such Prospectus Supplements to each
+exchange or market in the United States on which sales of the Purchase Shares
+may be made as may be required by the rules or regulations of such exchange or
+market, if applicable.
+
+(q)    No Variable Rate Transactions. From and after the date of this Agreement
+until the earlier of (i) the 36-month anniversary of the date of this Agreement,
+(ii) 6 months following the date on which the Company shall have received the
+full Available Amount pursuant to this Agreement and (iii) in the event of early
+termination of this Agreement, the date on which the Investor shall have sold
+all of the Securities acquired by the Investor hereunder, the Company shall be
+prohibited from effecting or entering into an agreement to effect any issuance
+by the Company or any of its Subsidiaries of Common Stock or Common Stock
+Equivalents (or a combination of units thereof) involving a Variable Rate
+Transaction, other than in connection with an Exempt Issuance. The Investor
+shall be entitled to obtain injunctive relief against the Company and its
+Subsidiaries to preclude any such issuance, which remedy shall be in addition to
+any right to collect damages, without the necessity of showing economic loss and
+without any bond or other security being required. “Common Stock Equivalents”
+means any securities of the Company or its Subsidiaries which entitle the holder
+thereof to acquire at any time Common Stock, including, without limitation, any
+debt, preferred stock, rights, options, warrants or other instrument that is at
+any time convertible into or exercisable or exchangeable for, or otherwise
+entitles the holder thereof to receive, Common Stock. “Variable Rate
+Transaction” means a transaction in which the Company (i) issues or sells any
+debt or equity securities that are convertible into, exchangeable or exercisable
+for, or include the right to receive additional shares of Common Stock or Common
+Stock Equivalents either (A) at a conversion price, exercise price, exchange
+rate or other price that is based upon and/or varies with the trading prices of
+or quotations for the Common Stock at any time after the initial issuance of
+such debt or equity securities (including, without limitation, pursuant to any
+“cashless exercise” provision), or (B) with a conversion, exercise or exchange
+price that is subject to being reset at some future date after the initial
+issuance of such debt or equity security or upon the occurrence of specified or
+contingent events directly or indirectly related to the business of the Company
+or the market for the Common Stock (including, without limitation, any “full
+ratchet” or “weighted average” anti-dilution provisions), (ii) issues or sells
+any debt or equity securities, including without limitation, Common Stock or
+Common Stock Equivalents, either (A) at a price that is subject to being reset
+at some future date after the initial issuance of such debt or equity security
+or upon the occurrence of specified or contingent events directly or indirectly
+related to the business of the Company or the market for the Common Stock, or
+(B) that is subject to or contains any put, call, redemption, buy-back,
+price-reset or other similar provision or mechanism (including, without
+limitation, a “Black-Scholes” put or call right) that provides for the issuance
+of additional debt or equity securities of the Company or the payment of cash by
+the Company, or (iii) enters into any agreement, including, but not limited to,
+an “equity line of credit”, “at-the-market offering” or other continuous
+offering or similar offering of Common Stock or Common Stock Equivalents,
+whereby the Company may sell Common Stock or Common Stock Equivalents at a
+future determined price. “Exempt Issuance” means the issuance of (a) Common
+Stock, restricted stock units or options to employees, officers, directors or
+vendors of the Company pursuant to any stock or option plan duly adopted for
+such purpose, by the Board of Directors or a majority of the members of a
+committee of directors established for such purpose, (b) securities upon the
+exercise or exchange of or conversion of any Securities issued hereunder, and/or
+of or for any Securities issued and outstanding on the date of this Agreement,
+provided that such securities have not been amended following the date of this
+Agreement to increase the number of such securities or to decrease the exercise
+price, exchange price or conversion price of such securities (other than in
+connection with a reorganization, recapitalization, non-cash dividend, stock
+split, reverse stock split or other similar transaction), (c) securities issued
+pursuant to acquisitions or strategic transactions approved by the Board of
+Directors or a majority of the members of a committee of directors established
+for such purpose, which acquisitions or strategic transactions can have a
+Variable Rate Transaction component, provided that any such issuance shall only
+be to a Person (or to the equity holders of a Person) which is, itself or
+through its subsidiaries, an
+
+ 
+
+25
+
+
+
+--------------------------------------------------------------------------------
+
+operating company or an asset in a business synergistic with the business of the
+Company and shall provide to the Company additional benefits in addition to the
+investment of funds, but shall not include a transaction in which the Company is
+issuing securities primarily for the purpose of raising capital or to an entity
+whose primary business is investing in securities, or (d) shares of Common Stock
+issued and sold pursuant to (1) the Controlled Equity OfferingSM Sales
+Agreement, dated August 12, 2019, by and between the Company and Cantor
+Fitzgerald & Co. and (2) any other “at-the-market offering” of Common Stock
+through a registered broker-dealer pursuant to an agreement executed from and
+after the date of this Agreement.
+
+ 
+
+6.
+
+TRANSFER AGENT INSTRUCTIONS.
+
+(a)    On the date of this Agreement, the Company shall issue to the Transfer
+Agent (and any subsequent transfer agent) irrevocable instructions, in the form
+substantially similar to those used by the Investor in substantially similar
+transactions, to issue the Purchase Shares and the Commitment Shares in
+accordance with the terms of this Agreement (the “Irrevocable Transfer Agent
+Instructions”). All Securities to be issued to or for the benefit of the
+Investor pursuant to this Agreement shall be issued as DWAC Shares. The Company
+warrants to the Investor that no instruction other than the Irrevocable Transfer
+Agent Instructions referred to in this Section 6 will be given by the Company to
+the Transfer Agent with respect to the Securities, and the Securities shall
+otherwise be freely transferable on the books and records of the Company.
+
+ 
+
+7.
+
+CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK.
+
+The right of the Company hereunder to commence sales of the Purchase Shares on
+the Commencement Date is subject to the satisfaction or, where legally
+permissible, the waiver of each of the following conditions:
+
+(a)    The Investor shall have executed each of the Transaction Documents and
+delivered the same to the Company;
+
+(b)    No stop order with respect to the Registration Statement shall be pending
+or threatened by the SEC;
+
+(c)    All federal, state, local and foreign governmental laws, rules and
+regulations applicable to the transactions contemplated by the Transaction
+Documents and necessary for the execution, delivery and performance of the
+Transaction Documents and the consummation of the transactions contemplated
+thereby in accordance with the terms thereof shall have been complied with, and
+all consents, authorizations and orders of, and all filings and registrations
+with, all federal, state, local and foreign courts or governmental agencies and
+all federal, state, local and foreign regulatory or self-regulatory agencies
+necessary for the execution, delivery and performance of the Transaction
+Documents and the consummation of the transactions contemplated thereby in
+accordance with the terms thereof shall have been obtained or made, including,
+without limitation, in each case those required prior to the commencement of
+sales of Purchase Shares under the Securities Act, the Exchange Act, applicable
+state securities or “Blue Sky” laws or applicable rules and regulations of the
+Principal Market or otherwise required by the SEC, the Principal Market, or any
+state securities regulators;
+
+(d)    No statute, regulation, order, decree, writ, ruling or injunction shall
+have been enacted, entered, promulgated, threatened or endorsed by any federal,
+state or local court or governmental authority of competent jurisdiction which
+prohibits the consummation of or which would materially modify or delay any of
+the transactions contemplated by the Transaction Documents;
+
+ 
+
+26
+
+
+
+--------------------------------------------------------------------------------
+
+(e)    All Securities to be issued by the Company to the Investor under the
+Transaction Documents shall have been approved for listing on the Principal
+Market in accordance with the applicable rules and regulations of the Principal
+Market, subject only to official notice of issuance; and
+
+(f)    The representations and warranties of the Investor shall be true and
+correct in all material respects (except to the extent that any of such
+representations and warranties is already qualified as to materiality in
+Section 3 above, in which case, such representations and warranties shall be
+true and correct without further qualification) as of the date hereof and as of
+the Commencement Date as though made at that time.
+
+ 
+
+8.
+
+CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.
+
+The obligation of the Investor to buy Purchase Shares under this Agreement is
+subject to the satisfaction or, where legally permissible, the waiver of each of
+the following conditions on or prior to the Commencement Date and, once such
+conditions have been initially satisfied, there shall not be any ongoing
+obligation to satisfy such conditions after the Commencement has occurred:
+
+(a)    The Company shall have executed each of the Transaction Documents and
+delivered the same to the Investor;
+
+(b)    The Common Stock shall be listed on the Principal Market, and all
+Securities to be issued by the Company to the Investor pursuant to this
+Agreement shall have been approved for listing on the Principal Market in
+accordance with the applicable rules and regulations of the Principal Market,
+subject only to official notice of issuance;
+
+(c)    The Investor shall have received the opinions and the negative assurances
+letter of the Company’s legal counsel dated as of the Commencement Date
+substantially in the form agreed to prior to the date of this Agreement by the
+Company’s legal counsel and the Investor’s legal counsel;
+
+(d)    The representations and warranties of the Company shall be true and
+correct in all material respects (except to the extent that any of such
+representations and warranties is already qualified as to materiality in
+Section 4 above, in which case, such representations and warranties shall be
+true and correct without further qualification) as of the date when made and as
+of the Commencement Date as though made at that time (except for representations
+and warranties that speak as of a specific date) and the Company shall have
+performed, satisfied and complied with the covenants, agreements and conditions
+required by the Transaction Documents to be performed, satisfied or complied
+with by the Company at or prior to the Commencement Date. The Investor shall
+have received a certificate, executed by the CEO, President or CFO of the
+Company, dated as of the Commencement Date, to the foregoing effect in the form
+attached hereto as Exhibit A;
+
+(e)    The Board of Directors of the Company, or a duly authorized committee of
+the Board of Directors, shall have adopted resolutions substantially in the form
+attached hereto as Exhibit C which shall be in full force and effect without any
+amendment or supplement thereto as of the Commencement Date;
+
+(f)    As of the Commencement Date, the Company shall have reserved out of its
+authorized and unissued Common Stock, (i) solely for the purpose of effecting
+purchases of Purchase Shares hereunder, 20,833,333 shares of Common Stock, and
+(ii) solely for the purpose of effecting the issuance of Additional Commitment
+Shares hereunder, 171,585 shares of Common Stock;
+
+ 
+
+27
+
+
+
+--------------------------------------------------------------------------------
+
+(g)    The Irrevocable Transfer Agent Instructions shall have been delivered to
+and acknowledged in writing by the Company and the Company’s Transfer Agent (or
+any successor transfer agent), and the Initial Commitment Shares required to be
+issued on the date of this Agreement in accordance with Section 5(e) hereof
+shall have been issued directly to the Investor electronically as DWAC Shares;
+
+(h)    The Company shall have delivered to the Investor a certificate evidencing
+the incorporation and good standing of the Company in the State of Delaware
+issued by the Secretary of State of the State of Delaware;
+
+(i)    The Company shall have delivered to the Investor a certified copy of the
+Certificate of Incorporation as certified by the Secretary of State of the State
+of Delaware within ten (10) Business Days of the Commencement Date;
+
+(j)    The Company shall have delivered to the Investor a secretary’s
+certificate executed by the Secretary of the Company, dated as of the
+Commencement Date, in the form attached hereto as Exhibit B;
+
+(k)    The Registration Statement shall continue to be effective and no stop
+order with respect to the Registration Statement shall be pending or threatened
+by the SEC. The Company shall have a maximum dollar amount of Common Stock
+registered under the Registration Statement which is sufficient to issue to the
+Investor not less than (i) the full Available Amount worth of Purchase Shares
+plus (ii) all of the Commitment Shares. The Current Report and the Initial
+Prospectus Supplement each shall have been filed with the SEC, as required
+pursuant to Section 5(a), and copies of the Prospectus shall have been delivered
+to the Investor in accordance with Section 5(m) hereof. The Prospectus shall be
+current and available for issuances and sales of all of the Securities by the
+Company to the Investor and for the resale of all of the Securities by the
+Investor. Any other Prospectus Supplements required to have been filed by the
+Company with the SEC under the Securities Act at or prior to the Commencement
+Date shall have been filed with the SEC within the applicable time periods
+prescribed for such filings under the Securities Act. All reports, schedules,
+registrations, forms, statements, information and other documents required to
+have been filed by the Company with the SEC at or prior to the Commencement Date
+pursuant to the reporting requirements of the Exchange Act shall have been filed
+with the SEC within the applicable time periods prescribed for such filings
+under the Exchange Act;
+
+(l)    No Event of Default (as defined below) has occurred, or any event which,
+after notice and/or lapse of time, would become an Event of Default has
+occurred;
+
+(m)    All federal, state and local governmental laws, rules and regulations
+applicable to the transactions contemplated by the Transaction Documents and
+necessary for the execution, delivery and performance of the Transaction
+Documents and the consummation of the transactions contemplated thereby in
+accordance with the terms thereof shall have been complied with, and all
+consents, authorizations and orders of, and all filings and registrations with,
+all federal, state and local courts or governmental agencies and all federal,
+state and local regulatory or self-regulatory agencies necessary for the
+execution, delivery and performance of the Transaction Documents and the
+consummation of the transactions contemplated thereby in accordance with the
+terms thereof shall have been obtained or made, including, without limitation,
+in each case those required under the Securities Act, the Exchange Act,
+applicable state securities or “Blue Sky” laws or applicable rules and
+regulations of the Principal Market, or otherwise required by the SEC, the
+Principal Market or any state securities regulators;
+
+(n)    No statute, regulation, order, decree, writ, ruling or injunction shall
+have been enacted, entered, promulgated, threatened or endorsed by any federal,
+state, local or foreign court or governmental authority of competent
+jurisdiction which prohibits the consummation of or which would materially
+modify or delay any of the transactions contemplated by the Transaction
+Documents; and
+
+ 
+
+28
+
+
+
+--------------------------------------------------------------------------------
+
+(o)    No action, suit or proceeding before any federal, state, local or foreign
+arbitrator or any court or governmental authority of competent jurisdiction
+shall have been commenced or threatened, and no inquiry or investigation by any
+federal, state, local or foreign governmental authority of competent
+jurisdiction shall have been commenced or threatened, against the Company, or
+any of the officers, directors or affiliates of the Company, seeking to
+restrain, prevent or change the transactions contemplated by the Transaction
+Documents, or seeking material damages in connection with such transactions.
+
+ 
+
+9.
+
+INDEMNIFICATION.
+
+In consideration of the Investor’s execution and delivery of the Transaction
+Documents and acquiring the Securities hereunder and in addition to all of the
+Company’s other obligations under the Transaction Documents, the Company shall
+defend, protect, indemnify and hold harmless the Investor and all of its
+affiliates, stockholders, officers, directors, members, managers, employees and
+direct or indirect investors and any of the foregoing Person’s agents or other
+representatives (including, without limitation, those retained in connection
+with the transactions contemplated by this Agreement) (collectively, the
+“Indemnitees”) from and against any and all actions, causes of action, suits,
+claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
+connection therewith (irrespective of whether any such Indemnitee is a party to
+the action for which indemnification hereunder is sought), and including
+reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
+incurred by any Indemnitee as a result of, or arising out of or relating to:
+(a) any misrepresentation or breach of any representation or warranty made by
+the Company in the Transaction Documents or any other certificate, instrument or
+document contemplated hereby or thereby, (b) any breach of any covenant,
+agreement or obligation of the Company contained in the Transaction Documents or
+any other certificate, instrument or document contemplated hereby or thereby,
+(c) any cause of action, suit or claim brought or made against such Indemnitee
+and arising out of or resulting from the execution, delivery, performance or
+enforcement of the Transaction Documents or any other certificate, instrument or
+document contemplated hereby or thereby, (d) any violation of the Securities
+Act, the Exchange Act, state securities or “Blue Sky” laws, or the rules and
+regulations of the Principal Market in connection with the transactions
+contemplated by the Transaction Documents by the Company or any of its
+Subsidiaries, affiliates, officers, directors or employees, (e) any untrue
+statement or alleged untrue statement of a material fact contained, or
+incorporated by reference, in the Registration Statement or any amendment
+thereto or any omission or alleged omission to state therein, or in any document
+incorporated by reference therein, a material fact required to be stated therein
+or necessary to make the statements therein not misleading, or (f) any untrue
+statement or alleged untrue statement of a material fact contained, or
+incorporated by reference, in the Prospectus, or any omission or alleged
+omission to state therein, or in any document incorporated by reference therein,
+a material fact required to be stated therein or necessary to make the
+statements therein, in light of the circumstances under which they were made,
+not misleading; provided, however, that (I) the indemnity contained in clause
+(c) of this Section 9 shall not apply to any Indemnified Liabilities which
+directly and primarily result from the fraud, gross negligence or willful
+misconduct of an Indemnitee, (II) the indemnity contained in clauses (d), (e)
+and (f) of this Section 9 shall not apply to any Indemnified Liabilities to the
+extent, but only to the extent, arising out of or based upon any untrue
+statement or alleged untrue statement or omission or alleged omission made in
+reliance upon and in conformity with written information furnished to the
+Company by or on behalf of the Investor expressly for use in any Prospectus
+Supplement (it being hereby acknowledged and agreed that the written information
+set forth on Exhibit D attached hereto is the only written information furnished
+to the Company by or on behalf of the Investor expressly for use in the Initial
+Prospectus Supplement), if the Prospectus was timely made available by the
+Company to the Investor pursuant to Section 5(l), (III) the indemnity contained
+in clauses (d), (e) and (f) of this Section 9 shall not inure to the benefit of
+the Investor to the extent such Indemnified Liabilities are based on a failure
+of the Investor to deliver or to cause to be delivered the Prospectus made
+available by the Company, if such Prospectus was timely made available by the
+Company pursuant to Section 5(l), and if delivery of the Prospectus would have
+cured the defect giving rise to such Indemnified Liabilities, and (IV) the
+indemnity in this Section 9 shall not apply to amounts paid
+
+ 
+
+29
+
+
+
+--------------------------------------------------------------------------------
+
+in settlement of any claim if such settlement is effected without the prior
+written consent of the Company, which consent shall not be unreasonably
+withheld, conditioned or delayed. To the extent that the foregoing undertaking
+by the Company may be unenforceable for any reason, the Company shall make the
+maximum contribution to the payment and satisfaction of each of the Indemnified
+Liabilities which is permissible under applicable law. Payment under this
+indemnification shall be made within thirty (30) days from the date the
+Indemnitee makes written request for it. A certificate containing reasonable
+detail as to the amount of such indemnification submitted to the Company by the
+Indemnitee shall be conclusive evidence, absent manifest error, of the amount
+due from the Company to the Indemnitee, provided that the Indemnitee shall
+undertake to repay any amounts paid to it hereunder if it is ultimately
+determined, by a final and non-appealable order of a court of competent
+jurisdiction, that the Indemnitee is not entitled to be indemnified against such
+Indemnified Liabilities by the Company pursuant to this Agreement. If any action
+shall be brought against any Indemnitee in respect of which indemnity may be
+sought pursuant to this Agreement, such Indemnitee shall promptly notify the
+Company in writing, and the Company shall have the right to assume the defense
+thereof with counsel of its own choosing reasonably acceptable to the
+Indemnitee. Any Indemnitee shall have the right to employ separate counsel in
+any such action and participate in the defense thereof, but the fees and
+expenses of such counsel shall be at the expense of such Indemnitee, except to
+the extent that (i) the employment thereof has been specifically authorized by
+the Company in writing, (ii) the Company has failed after a reasonable period of
+time to assume such defense and to employ counsel or (iii) in such action there
+is, in the reasonable opinion of such separate counsel, a material conflict on
+any material issue between the position of the Company and the position of such
+Indemnitee, in which case the Company shall be responsible for the reasonable
+fees and expenses of no more than one such separate counsel.
+
+ 
+
+10.
+
+EVENTS OF DEFAULT.
+
+An “Event of Default” shall be deemed to have occurred at any time as any of the
+following events occurs:
+
+(a)    the effectiveness of the Registration Statement registering the
+Securities lapses for any reason (including, without limitation, the issuance of
+a stop order or similar order), the Registration Statement or any Prospectus is
+unavailable for the sale by the Company to the Investor (or the resale by the
+Investor) of any or all of the Securities to be issued to the Investor under the
+Transaction Documents (including, without limitation, as a result of any failure
+of the Company to satisfy all of the requirements for the use of a registration
+statement on Form S-3 pursuant to the Securities Act for the offering and sale
+of the Securities contemplated by this Agreement), and any such lapse or
+unavailability continues for a period of ten (10) consecutive Business Days or
+for more than an aggregate of thirty (30) Business Days in any 365-day period;
+
+(b)    the suspension of the Common Stock from trading on the Principal Market
+for a period of one (1) Business Day, provided that the Company may not direct
+the Investor to purchase any shares of Common Stock during any such suspension;
+
+(c)    the delisting of the Common Stock from theNYSE American provided,
+however, that the Common Stock is not immediately thereafter trading on The
+NASDAQ Capital Market, The NASDAQ Global Market, The NASDAQ Global Select
+Market, the New York Stock Exchange, the NYSE Arca, the OTC Bulletin Board, or
+the OTCQB or the OTCQX operated by the OTC Markets Group, Inc. (or any
+nationally recognized successor to any of the foregoing);
+
+(d)    the failure for any reason by the Transfer Agent to issue (i) the
+Additional Commitment Shares to the Investor within three (3) Business Days
+after the date on which the Investor is entitled to receive such Additional
+Commitment Shares pursuant to Section 5(e) hereof and (ii) Purchase Shares to
+the Investor within three (3) Business Days after the applicable Purchase Date
+or Accelerated Purchase Date (as applicable) on which the Investor is entitled
+to receive such Purchase Shares;
+
+ 
+
+30
+
+
+
+--------------------------------------------------------------------------------
+
+(e)    the Company breaches any representation, warranty, covenant or other term
+or condition under any Transaction Document if such breach could have a Material
+Adverse Effect and except, in the case of a breach of a covenant which is
+reasonably curable, only if such breach continues for a period of at least five
+(5) Business Days;
+
+(f)    if any Person commences a proceeding against the Company pursuant to or
+within the meaning of any Bankruptcy Law;
+
+(g)    if the Company is at any time insolvent, or, pursuant to or within the
+meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to
+the entry of an order for relief against it in an involuntary case,
+(iii) consents to the appointment of a Custodian of it or for all or
+substantially all of its property, or (iv) makes a general assignment for the
+benefit of its creditors or is generally unable to pay its debts as the same
+become due;
+
+(h)    a court of competent jurisdiction enters an order or decree under any
+Bankruptcy Law that (i) is for relief against the Company in an involuntary
+case, (ii) appoints a Custodian of the Company or for all or substantially all
+of its property, or (iii) orders the liquidation of the Company or any
+Subsidiary;
+
+(i)    if at any time the Company is not eligible to transfer its Common Stock
+electronically as DWAC Shares; or
+
+(j)    if at any time after the Commencement Date, the Exchange Cap is reached
+(to the extent the Exchange Cap is applicable pursuant to Section 2(e) hereof).
+
+In addition to any other rights and remedies under applicable law and this
+Agreement, so long as an Event of Default has occurred and is continuing, or if
+any event which, after notice and/or lapse of time, would become an Event of
+Default, has occurred and is continuing, or so long as the Closing Sale Price is
+below the Floor Price, the Company shall not deliver to the Investor any Regular
+Purchase Notice, Accelerated Purchase Notice or Additional Accelerated Purchase
+Notice, and the Investor shall not purchase any shares of Common Stock under
+this Agreement.
+
+ 
+
+11.
+
+TERMINATION
+
+This Agreement may be terminated only as follows:
+
+(a)    If pursuant to or within the meaning of any Bankruptcy Law, the Company
+commences a voluntary case or any Person commences a proceeding against the
+Company, a Custodian is appointed for the Company or for all or substantially
+all of its property, or the Company makes a general assignment for the benefit
+of its creditors (any of which would be an Event of Default as described in
+Sections 10(f), 10(g) and 10(h) hereof), this Agreement shall automatically
+terminate without any liability or payment to the Company (except as set forth
+below) without further action or notice by any Person.
+
+(b)    In the event that the Commencement shall not have occurred on or before
+March 10, 2020, due to the failure to satisfy the conditions set forth in
+Sections 7 and 8 above with respect to the Commencement, either the Company or
+the Investor shall have the option to terminate this Agreement at the close of
+business on such date or thereafter without liability of any party to any other
+party (except as set forth below); provided, however, that the right to
+terminate this Agreement under this Section 11(b) shall not be available to any
+party if such party is then in breach of any covenant or agreement contained in
+
+ 
+
+31
+
+
+
+--------------------------------------------------------------------------------
+
+this Agreement or any representation or warranty of such party contained in this
+Agreement fails to be true and correct such that the conditions set forth in
+Section 7(f) or Section 8(d), as applicable, could not then be satisfied.
+
+(c)    At any time after the Commencement Date, the Company shall have the
+option to terminate this Agreement for any reason or for no reason by delivering
+notice (a “Company Termination Notice”) to the Investor electing to terminate
+this Agreement without any liability whatsoever of any party to any other party
+under this Agreement (except as set forth below). The Company Termination Notice
+shall not be effective until one (1) Business Day after it has been received by
+the Investor.
+
+(d)    This Agreement shall automatically terminate on the date that the Company
+sells and the Investor purchases the full Available Amount as provided herein,
+without any action or notice on the part of any party and without any liability
+whatsoever of any party to any other party under this Agreement (except as set
+forth below).
+
+(e)    If, for any reason or for no reason, the full Available Amount has not
+been purchased in accordance with Section 2 of this Agreement by the Maturity
+Date, this Agreement shall automatically terminate on the Maturity Date, without
+any action or notice on the part of any party and without any liability
+whatsoever of any party to any other party under this Agreement (except as set
+forth below).
+
+Except as set forth in Sections 11(a) (in respect of an Event of Default under
+Sections 10(f), 10(g) and 10(h)), 11(d) and 11(e), any termination of this
+Agreement pursuant to this Section 11 shall be effected by written notice from
+the Company to the Investor, or the Investor to the Company, as the case may be,
+setting forth the basis for the termination hereof. The representations and
+warranties and covenants of the Company and the Investor contained in Sections
+3, 4, 5, and 6 hereof, the indemnification provisions set forth in Section 9
+hereof and the agreements and covenants set forth in Sections 10, 11 and 12
+shall survive the Commencement and any termination of this Agreement. No
+termination of this Agreement shall (i) affect the Company’s or the Investor’s
+rights or obligations under (A) this Agreement with respect to pending Regular
+Purchases, Accelerated Purchases, and Additional Accelerated Purchases and the
+Company and the Investor shall complete their respective obligations with
+respect to any pending Regular Purchases, Accelerated Purchases and Additional
+Accelerated Purchases under this Agreement and (B) the Registration Rights
+Agreement, which shall survive any such termination in accordance with its
+terms, or (ii) be deemed to release the Company or the Investor from any
+liability for intentional misrepresentation or willful breach of any of the
+Transaction Documents.
+
+ 
+
+12.
+
+MISCELLANEOUS.
+
+(a)    Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State
+of Delaware shall govern all issues concerning the relative rights of the
+Company and its stockholders. All other questions concerning the construction,
+validity, enforcement and interpretation of this Agreement and the other
+Transaction Documents shall be governed by the internal laws of the State of
+Illinois, without giving effect to any choice of law or conflict of law
+provision or rule (whether of the State of Illinois or any other jurisdictions)
+that would cause the application of the laws of any jurisdictions other than the
+State of Illinois. Each party hereby irrevocably submits to the exclusive
+jurisdiction of the state and federal courts sitting in the State of Illinois,
+County of Cook, for the adjudication of any dispute hereunder or under the other
+Transaction Documents or in connection herewith or therewith, or with any
+transaction contemplated hereby or discussed herein, and hereby irrevocably
+waives, and agrees not to assert in any suit, action or proceeding, any claim
+that it is not personally subject to the jurisdiction of any such court, that
+such suit, action or proceeding is brought in an inconvenient forum or that the
+venue of such suit, action or proceeding is improper. Each party hereby
+irrevocably waives personal service of process and consents to process being
+served in any such suit, action or proceeding by mailing a copy thereof to such
+party at the address for such
+
+ 
+
+32
+
+
+
+--------------------------------------------------------------------------------
+
+notices to it under this Agreement and agrees that such service shall constitute
+good and sufficient service of process and notice thereof. Nothing contained
+herein shall be deemed to limit in any way any right to serve process in any
+manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
+HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
+DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR
+ANY TRANSACTION CONTEMPLATED HEREBY.
+
+(b)    Counterparts. This Agreement may be executed in two or more identical
+counterparts, all of which shall be considered one and the same agreement and
+shall become effective when counterparts have been signed by each party and
+delivered to the other party; provided that a facsimile signature or signature
+delivered by e-mail in a “.pdf” format data file shall be considered due
+execution and shall be binding upon the signatory thereto with the same force
+and effect as if the signature were an original signature.
+
+(c)    Headings. The headings of this Agreement are for convenience of reference
+and shall not form part of, or affect the interpretation of, this Agreement.
+
+(d)    Severability. If any provision of this Agreement shall be invalid or
+unenforceable in any jurisdiction, such invalidity or unenforceability shall not
+affect the validity or enforceability of the remainder of this Agreement in that
+jurisdiction or the validity or enforceability of any provision of this
+Agreement in any other jurisdiction.
+
+(e)    Entire Agreement. The Transaction Documents supersede all other prior
+oral or written agreements between the Investor, the Company, their affiliates
+and Persons acting on their behalf with respect to the subject matter thereof,
+and this Agreement, the other Transaction Documents and the instruments
+referenced herein contain the entire understanding of the parties with respect
+to the matters covered herein and therein and, except as specifically set forth
+herein or therein, neither the Company nor the Investor makes any
+representation, warranty, covenant or undertaking with respect to such matters.
+The Company acknowledges and agrees that is has not relied on, in any manner
+whatsoever, any representations or statements, written or oral, other than as
+expressly set forth in the Transaction Documents.
+
+(f)    Notices. Any notices, consents or other communications required or
+permitted to be given under the terms of this Agreement must be in writing and
+will be deemed to have been delivered: (i) upon receipt when delivered
+personally; (ii) upon receipt when sent by facsimile or email (provided
+confirmation of transmission is mechanically or electronically generated and
+kept on file by the sending party); or (iii) one Business Day after deposit with
+a nationally recognized overnight delivery service, in each case properly
+addressed to the party to receive the same. The addresses for such
+communications shall be:
+
+If to the Company:
+
+Transenterix, Inc.
+
+635 Davis Drive, Suite 300
+
+Morrisville NC 27560
+
+Telephone:    919.765.8400
+
+E-mail:           afernando@transenterix.com
+
+Attention:      Anthony Fernando, President and CEO
+
+ 
+
+33
+
+
+
+--------------------------------------------------------------------------------
+
+With a copy to (which shall not constitute notice or service of process):
+
+Ballard Spahr LLP
+
+1735 Market Street, 51st Floor
+
+Philadelphia, Pennsylvania 19103
+
+Telephone:    215-864-8631
+
+Facsimile:      215-864-8999
+
+Email:           mullany@ballardspahr.com
+
+Attention:     Mary J. Mullany, Esq.
+
+And to:
+
+Joshua Weingard, Chief Legal Officer
+
+4400 Biscayne Blvd.
+
+Miami, Fl 33137
+
+Telephone:    305-778-1031
+
+Email:            jweingard@transenterix.com
+
+If to the Investor:
+
+Lincoln Park Capital Fund, LLC
+
+440 North Wells, Suite 410
+
+Chicago, IL 60654
+
+Telephone:    312.822.9300
+
+Facsimile:     312.822.9301
+
+E-mail:           jscheinfeld@lpcfunds.com/jcope@lpcfunds.com
+
+Attention:     Josh Scheinfeld/Jonathan Cope
+
+With a copy to (which shall not constitute notice or service of process):
+
+K&L Gates, LLP
+
+200 S. Biscayne Blvd., Ste. 3900
+
+Miami, Florida 33131
+
+Telephone:    305.539.3306
+
+Facsimile:     305.358.7095
+
+E-mail:           clayton.parker@klgates.com
+
+Attention:      Clayton E. Parker, Esq.
+
+If to the Transfer Agent:
+
+Continental Stock & Transfer Company
+
+1 State Street, 30th Floor
+
+New York, New York 10004-1561
+
+Telephone:    212-845-3269
+
+Facsimile:    
+
+Attention:     Steven Vacante
+
+or at such other address and/or facsimile number and/or to the attention of such
+other Person as the recipient party has specified by written notice given to
+each other party three (3) Business Days prior to the effectiveness of such
+change. Written confirmation of receipt (A) given by the recipient of such
+notice,
+
+ 
+
+34
+
+
+
+--------------------------------------------------------------------------------
+
+consent or other communication, (B) mechanically or electronically generated by
+the sender’s facsimile machine or email account containing the time, date, and
+recipient facsimile number or email address, as applicable, and an image of the
+first page of such transmission or (C) provided by a nationally recognized
+overnight delivery service, shall be rebuttable evidence of personal service,
+receipt by facsimile or receipt from a nationally recognized overnight delivery
+service in accordance with clause (i), (ii) or (iii) above, respectively.
+
+(g)    Successors and Assigns. This Agreement shall be binding upon and inure to
+the benefit of the parties and their respective successors and assigns. The
+Company shall not assign this Agreement or any rights or obligations hereunder
+without the prior written consent of the Investor, including by merger or
+consolidation. The Investor may not assign its rights or obligations under this
+Agreement.
+
+(h)    No Third Party Beneficiaries. This Agreement is intended for the benefit
+of the parties hereto and their respective permitted successors and assigns,
+and, except as set forth in Section 9, is not for the benefit of, nor may any
+provision hereof be enforced by, any other Person.
+
+(i)    Publicity. The Company shall afford the Investor and its counsel with the
+opportunity to review and comment upon, shall consult with the Investor and its
+counsel on the form and substance of, and shall give due consideration to all
+such comments from the Investor or its counsel on, any press release, SEC filing
+or any other public disclosure by or on behalf of the Company relating to the
+Investor, its purchases hereunder or any aspect of the Transaction Documents or
+the transactions contemplated thereby, not less than 24 hours prior to the
+issuance, filing or public disclosure thereof. The Investor must be provided
+with a final version of any such press release, SEC filing or other public
+disclosure at least 24 hours prior to any release, filing or use by the Company
+thereof; provided, however, that the Company’s obligations pursuant to this
+Section 12(i) shall not apply if the form and substance of such press release,
+SEC filing, or other public disclosure relating to the Investor, its purchases
+hereunder or any aspect of the Transaction Documents or the transactions
+contemplated thereby previously have been publicly disclosed by the Company in
+compliance with this Section 12(i). The Company agrees and acknowledges that its
+failure to fully comply with this provision constitutes a Material Adverse
+Effect.
+
+(j)    Further Assurances. Each party shall do and perform, or cause to be done
+and performed, all such further acts and things, and shall execute and deliver
+all such other agreements, certificates, instruments and documents, as the other
+party may reasonably request in order to carry out the intent and accomplish the
+purposes of this Agreement and the consummation of the transactions contemplated
+hereby.
+
+(k)    No Financial Advisor, Placement Agent, Broker or Finder. The Company
+represents and warrants to the Investor that, except as disclosed in Schedule
+4(x), it has not engaged any financial advisor, placement agent, broker or
+finder in connection with the transactions contemplated hereby. The Investor
+represents and warrants to the Company that it has not engaged any financial
+advisor, placement agent, broker or finder in connection with the transactions
+contemplated hereby. The Company shall be responsible for the payment of any
+fees or commissions, if any, of any financial advisor, placement agent, broker
+or finder relating to or arising out of the transactions contemplated hereby.
+The Company shall pay, and hold the Investor harmless against, any liability,
+loss or expense (including, without limitation, attorneys’ fees and out of
+pocket expenses) arising in connection with any such claim.
+
+(l)    No Strict Construction. The language used in this Agreement will be
+deemed to be the language chosen by the parties to express their mutual intent,
+and no rules of strict construction will be applied against any party.
+
+ 
+
+35
+
+
+
+--------------------------------------------------------------------------------
+
+(m)    Remedies, Other Obligations, Breaches and Injunctive Relief. The
+Investor’s remedies provided in this Agreement, including, without limitation,
+the Investor’s remedies provided in Section 9, shall be cumulative and in
+addition to all other remedies available to the Investor under this Agreement,
+at law or in equity (including a decree of specific performance and/or other
+injunctive relief), no remedy of the Investor contained herein shall be deemed a
+waiver of compliance with the provisions giving rise to such remedy and nothing
+herein shall limit the Investor’s right to pursue actual damages for any failure
+by the Company to comply with the terms of this Agreement. The Company
+acknowledges that a breach by it of its obligations hereunder will cause
+irreparable harm to the Investor and that the remedy at law for any such breach
+may be inadequate. The Company therefore agrees that, in the event of any such
+breach or threatened breach, the Investor shall be entitled, in addition to all
+other available remedies, to an injunction restraining any breach, without the
+necessity of showing economic loss and without any bond or other security being
+required.
+
+(n)    Enforcement Costs. In the event of a dispute arising out of or relating
+to this Agreement, if a court of competent jurisdiction determines in a final,
+non-appealable order that a party has breached this Agreement, then, in addition
+to any other available remedies, the non-breaching party shall be entitled to,
+and the breaching party shall be liable for, the reasonable legal fees and
+expenses incurred by the non-breaching party in connection with the dispute,
+including any appeals in connection therewith. If this Agreement is placed by
+the Investor in the hands of an attorney for enforcement or is enforced by the
+Investor through any legal proceeding or an attorney is retained to represent
+the Investor in any bankruptcy, reorganization, receivership or other
+proceedings affecting creditors’ rights and involving a claim under this
+Agreement, then the Company shall pay to the Investor, as incurred by the
+Investor, all reasonable costs and expenses including reasonable attorneys’ fees
+incurred in connection therewith, in addition to all other amounts due
+hereunder. If this Agreement is placed by the Company in the hands of an
+attorney for enforcement or is enforced by the Company through any legal
+proceeding, then the Investor shall pay to the Company, as incurred by the
+Company, all reasonable costs and expenses including reasonable attorneys’ fees
+incurred in connection therewith, in addition to all other amounts due
+hereunder.
+
+(o)    Amendment and Waiver; Failure or Indulgence Not Waiver. No provision of
+this Agreement may be waived other than in a written instrument signed by the
+party against whom enforcement of such waiver is sought. No failure or delay in
+the exercise of any power, right or privilege hereunder shall operate as a
+waiver thereof, nor shall any single or partial exercise of any such power,
+right or privilege preclude other or further exercise thereof or of any other
+right, power or privilege.
+
+** Signature Page Follows **
+
+ 
+
+36
+
+
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, the Investor and the Company have caused this Purchase
+Agreement to be duly executed as of the date first written above.
+
+ 
+
+THE COMPANY: TRANSENTERIX, INC. By:  
+
+/s/ Anthony Fernando
+
+Name:   Anthony Fernando Title:   President and Chief Executive Officer
+INVESTOR: LINCOLN PARK CAPITAL FUND, LLC BY: LINCOLN PARK CAPITAL, LLC BY:
+Rockledge Capital Corporation By:  
+
+/s/ Joshua Scheinfeld
+
+Name:   Joshua Scheinfeld Title:   President
+
+ 
+
+37
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBITS
+
+ 
+
+Exhibit A    Form of Officer’s Certificate Exhibit B    Form of Secretary’s
+Certificate Exhibit C    Form of Resolutions of the Board of Directors of the
+Company Exhibit D    Information About the Investor Furnished to the Company
+
+ 
+
+38
+
+
+
+--------------------------------------------------------------------------------
+
+DISCLOSURE SCHEDULES
+
+Schedule 4(a) – Subsidiaries
+
+TransEnterix Surgical, Inc.
+
+Safestitch LLC
+
+TransEnterix International, Inc.
+
+TransEnterix Italia, S.r.l.
+
+TransEnterix Europe S.à.R.L
+
+TransEnterix Asia Pte. Ltd.
+
+TransEnterix Taiwan Ltd.
+
+TransEnterix Japan KK
+
+TransEnterix Israel Ltd.
+
+TransEnterix Netherlands, B.V.
+
+Schedule 4(x) – Agent Fees
+
+None
+
+ 
+
+39
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT A
+
+FORM OF OFFICER’S CERTIFICATE
+
+This Officer’s Certificate (“Certificate”) is being delivered pursuant to
+Section 8(d) of that certain Purchase Agreement dated as of February 10, 2020,
+(“Purchase Agreement”), by and between TRANSENTERIX, INC., a Delaware
+corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the
+“Investor”). Capitalized terms used herein and not otherwise defined shall have
+the meanings ascribed to them in the Purchase Agreement.
+
+The undersigned, Anthony Fernando, President and Chief Executive Officer of the
+Company, hereby certifies, on behalf of the Company and not in his individual
+capacity, as follows:
+
+1.    I am the President and Chief Executive Officer of the Company and make the
+statements contained in this Certificate;
+
+2.    The representations and warranties of the Company are true and correct in
+all material respects (except to the extent that any of such representations and
+warranties is already qualified as to materiality in Section 4 of the Purchase
+Agreement, in which case, such representations and warranties are true and
+correct without further qualification) as of the date when made and as of the
+Commencement Date as though made at that time (except for representations and
+warranties that speak as of a specific date);
+
+3.    The Company has performed, satisfied and complied in all material respects
+with covenants, agreements and conditions required by the Transaction Documents
+to be performed, satisfied or complied with by the Company at or prior to the
+Commencement Date.
+
+4.    The Company has not taken any steps, and does not currently expect to take
+any steps, to seek protection pursuant to any Bankruptcy Law nor does the
+Company or any of its Subsidiaries currently have any knowledge or reason to
+believe that its creditors intend to initiate involuntary bankruptcy or
+insolvency proceedings. The Company is currently financially solvent and is
+generally able to pay its debts as they become due.
+
+IN WITNESS WHEREOF, I have hereunder signed my name as of the date first written
+above.
+
+ 
+
+                                             
+
+Name:   Anthony Fernando Title:   President and Chief Executive Officer
+
+The undersigned as Interim Chief Financial Officer of TransEnterix, Inc., a
+Delaware corporation, hereby certifies that Anthony Fernando is the duly
+elected, appointed, qualified and acting President and Chief Executive Officer
+of TransEnterix, Inc., and that the signature appearing above is his genuine
+signature.
+
+ 
+
+                                              
+
+Name:   Brett Farabaugh Title:   Interim Chief Financial Officer
+
+ 
+
+40
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT B
+
+FORM OF SECRETARY’S CERTIFICATE
+
+This Secretary’s Certificate (“Certificate”) is being delivered pursuant to
+Section 8(j) of that certain Purchase Agreement dated as of February 10, 2020,
+(“Purchase Agreement”), by and between TRANSENTERIX, INC., a Delaware
+corporation (the “Company”) and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”),
+pursuant to which the Company may sell to the Investor up to Twenty-Five Million
+Dollars ($25,000,000) of the Company’s Common Stock, $0.001 par value (the
+“Common Stock”). Capitalized terms used herein and not otherwise defined shall
+have the meanings ascribed to them in the Purchase Agreement.
+
+The undersigned, Joshua Weingard, Secretary and Chief Legal Officer of the
+Company, hereby certifies, on behalf of the Company and not in his individual
+capacity, as follows:
+
+1.    I am the Secretary and Chief Legal Officer of the Company and make the
+statements contained in this Secretary’s Certificate.
+
+2.    Attached hereto as Exhibit A and Exhibit B are true, correct and complete
+copies of the Company’s Bylaws (“Bylaws”) and Certificate of Incorporation
+(“Charter”), in each case, as amended through the date hereof, and no action has
+been taken by the Company, its directors, officers or stockholders, in
+contemplation of the filing of any further amendment relating to or affecting
+the Bylaws or Charter.
+
+3.    Attached hereto as Exhibit C are true, correct and complete copies of the
+resolutions duly adopted by the Board of Directors of the Company on February
+[___], 2020, at which a quorum was present and acting throughout. Such
+resolutions have not been amended, modified or rescinded and remain in full
+force and effect and such resolutions are the only resolutions adopted by the
+Company’s Board of Directors, or any committee thereof, or the stockholders of
+the Company relating to or affecting (i) the entering into and performance of
+the Purchase Agreement, or the issuance, offering and sale of the Purchase
+Shares and the Commitment Shares and (ii) and the performance of the Company of
+its obligation under the Transaction Documents as contemplated therein.
+
+4.    As of the date hereof, the authorized, issued and reserved capital stock
+of the Company is as set forth on Exhibit D hereto.
+
+IN WITNESS WHEREOF, I have hereunder signed my name as of the date first written
+above.
+
+ 
+
+ 
+
+Joshua Weingard Secretary, Chief Legal Officer
+
+The undersigned as Interim Chief Financial Officer of TransEnterix, Inc., a
+Delaware corporation, hereby certifies that Joshua Weingard is the duly elected,
+appointed, qualified and acting Secretary and Chief Legal Officer of
+TransEnterix, Inc., and that the signature appearing above is his genuine
+signature.
+
+ 
+
+ 
+
+Name:   Brett Farabaugh Title:   Interim Chief Financial Officer
+
+ 
+
+41
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT C
+
+FORM OF COMPANY RESOLUTIONS
+
+FOR SIGNING PURCHASE AGREEMENT
+
+WHEREAS, there has been presented to the Board of Directors of the Corporation a
+draft of the Purchase Agreement (the “Purchase Agreement”) by and between
+TransEnterix, Inc., a Delaware corporation (the “Corporation”), and Lincoln Park
+Capital Fund, LLC (“Lincoln Park”), providing for the purchase by Lincoln Park
+of up to Twenty-Five Million Dollars ($25,000,000) of the Corporation’s common
+stock, $0.001 par value per share (the “Common Stock”); and
+
+WHEREAS, after careful consideration of the terms and conditions of the Purchase
+Agreement, the documents incident thereto and other factors deemed relevant by
+the Board of Directors, the Board of Directors has determined that it is
+advisable and in the best interests of the Corporation to engage in the
+transactions contemplated by the Purchase Agreement, including, but not limited
+to, the issuance of up to 514,756 shares of Common Stock (the “Commitment
+Shares”) to Lincoln Park as a commitment fee, of which 343,171 are to be issued
+upon the signing of the Purchase Agreement (the “Initial Commitment Shares”) and
+the sale of shares of Common Stock to Lincoln Park up to the available amount
+under the Purchase Agreement (the “Purchase Shares”).
+
+Transaction Documents
+
+NOW, THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase
+Agreement are hereby approved and                                          (the
+“Authorized Officers”) are severally authorized to execute and deliver the
+Purchase Agreement, and any other agreements or documents contemplated thereby,
+with such amendments, changes, additions and deletions as the Authorized
+Officers may deem to be appropriate and approve on behalf of, the Corporation,
+such approval to be conclusively evidenced by the signature of an Authorized
+Officer thereon; and
+
+FURTHER RESOLVED, that the terms and provisions of the forms of Irrevocable
+Transfer Agent Instructions (the “Instructions”) are hereby approved and the
+Authorized Officers are authorized to execute and deliver the Instructions on
+behalf of the Company in accordance with the Purchase Agreement, with such
+amendments, changes, additions and deletions as the Authorized Officers may deem
+appropriate and approve, on behalf of the Corporation, such approval to be
+conclusively evidenced by the signature of an Authorized Officer thereon; and
+
+Execution of Purchase Agreement
+
+FURTHER RESOLVED, that the Authorized Officers be and each of them hereby is
+authorized to execute and deliver the Purchase Agreement in substantially the
+form presented to the Board of Directors and providing for the issuance and sale
+of up to Twenty-Five Million Dollars ($25,000,000) of the Common Stock to
+Lincoln Park; and
+
+Issuance of Common Stock
+
+FURTHER RESOLVED, that the Corporation is hereby authorized to issue to Lincoln
+Park 343,171 shares of Common Stock as Initial Commitment Shares upon execution
+and delivery of the Purchase Agreement by the Company and Lincoln Park, and that
+upon issuance of the Initial Commitment Shares pursuant to the Purchase
+Agreement the Initial Commitment Shares shall be duly authorized, validly
+issued, fully paid and nonassessable with no personal liability attaching to the
+ownership thereof; and
+
+ 
+
+42
+
+
+
+--------------------------------------------------------------------------------
+
+FURTHER RESOLVED, that the Corporation is hereby authorized to issue up to
+171,585 shares of Common Stock as Additional Commitment Shares under the
+Purchase Agreement in accordance with the terms of the Purchase Agreement and
+that, upon issuance of the Additional Commitment Shares pursuant to the Purchase
+Agreement, the Additional Commitment Shares will be duly authorized, validly
+issued, fully paid and nonassessable with no personal liability attaching to the
+ownership thereof; and
+
+FURTHER RESOLVED, that the Corporation shall reserve 171,585 shares of Common
+Stock for issuance as Additional Commitment Shares under the Purchase Agreement;
+and
+
+FURTHER RESOLVED, that the Corporation is hereby authorized to issue shares of
+Common Stock upon the purchase of Purchase Shares up to the Available Amount
+under the Purchase Agreement in accordance with the terms of the Purchase
+Agreement and that, upon issuance of the Purchase Shares and receipt of the
+consideration therefor pursuant to the Purchase Agreement, the Purchase Shares
+will be duly authorized, validly issued, fully paid and nonassessable with no
+personal liability attaching to the ownership thereof; and
+
+FURTHER RESOLVED, that the Corporation shall initially reserve 20,833,333 shares
+of Common Stock for issuance as Purchase Shares under the Purchase Agreement;
+and
+
+Approval of Actions
+
+FURTHER RESOLVED, that, without limiting the foregoing, the Authorized Officers
+are, and each of them hereby is, authorized and directed to proceed on behalf of
+the Corporation and to take all such steps as deemed necessary or appropriate,
+with the advice and assistance of counsel, to cause the Corporation to
+consummate the transactions contemplated by the Purchase Agreement and the
+agreements referred to therein and to perform its obligations under such
+agreements; and
+
+FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby is,
+authorized, empowered and directed on behalf of and in the name of the
+Corporation, to take or cause to be taken all such further actions and to
+execute and deliver or cause to be executed and delivered all such further
+agreements, amendments, documents, certificates, reports, schedules,
+applications, notices, letters and undertakings and to incur and pay all such
+fees and expenses as in their judgment shall be necessary, proper or desirable
+to carry into effect the purpose and intent of any and all of the foregoing
+resolutions, and that all actions heretofore taken by any officer or director of
+the Corporation in connection with the transactions contemplated by the
+agreements described herein are hereby approved, ratified and confirmed in all
+respects.
+
+ 
+
+43
+
+
+
+--------------------------------------------------------------------------------
+
+EXHIBIT D
+
+Information About The Investor Furnished To The Company By The Investor
+Expressly For Use In Connection With The Initial Prospectus Supplement
+
+Information With Respect to Lincoln Park Capital
+
+As of the date of the Purchase Agreement, Lincoln Park Capital Fund, LLC,
+beneficially owned 0 shares of our common stock. Josh Scheinfeld and Jonathan
+Cope, the Managing Members of Lincoln Park Capital, LLC, the manager of Lincoln
+Park Capital Fund, LLC, are deemed to be beneficial owners of all of the shares
+of common stock owned by Lincoln Park Capital Fund, LLC. Messrs. Cope and
+Scheinfeld have shared voting and investment power over the shares being offered
+under the prospectus supplement filed with the SEC in connection with the
+transactions contemplated under the Purchase Agreement. Lincoln Park Capital,
+LLC is not a licensed broker dealer or an affiliate of a licensed broker dealer.
+
+ 
+
+44
+Exhibit 10.10
+
+ 
+
+Certain portions of this exhibit, marked with [***], have been excluded from
+this exhibit because it is not material and would likely cause competitive harm
+to the Company if publicly disclosed.
+
+ 
+
+August 28, 2020
+
+ 
+
+Dylan Lissette
+
+ 
+
+c/o Utz Quality Foods, LLC
+
+900 High Street
+
+Hanover PA 17331
+
+ 
+
+Re:          Offer of Employment
+
+ 
+
+Dear Dylan:
+
+ 
+
+1.                   Defined Terms
+
+ 
+
+Capitalized terms not otherwise defined in this Offer Letter (as defined below)
+shall have the meanings set forth on Appendix A attached hereto.
+
+ 
+
+2.                   Offer and Position
+
+ 
+
+We are very pleased to extend an offer of employment to you for the position of
+Chief Executive Officer (“CEO”) of Utz Brands, Inc., a Delaware corporation
+(“PubCo”), effective upon and following the consummation of the transactions
+(collectively, the “Transaction”) contemplated by that certain Business
+Combination Agreement (the “Business Combination Agreement”), dated as of June
+5, 2020, by and among Collier Creek Holdings (“CCH”), a Cayman Islands exempted
+company, which shall domesticate as a Delaware corporation, Utz Brands Holdings,
+LLC, a Delaware limited liability company (the “Company”), Series U of UM
+Partners, LLC, a series of a Delaware limited liability company, and Series R of
+UM Partners, LLC, a series of a Delaware limited liability company. Your
+employment will be subject to the terms and conditions set forth in this letter
+(the “Offer Letter”). This Offer Letter will be binding upon execution but the
+obligations under this Offer Letter are not effective until the consummation of
+the Transaction (with the date on which the Transaction is consummated, the
+“Closing Date”) and if the Business Combination Agreement terminates in
+accordance with Article XI of the Business Combination Agreement, then this
+Offer Letter will be null and void ab initio. The board of directors of PubCo
+(the “Board”) will take all such actions required for you to be appointed as CEO
+as of the Start Date (as defined below).
+
+ 
+
+3.                   Duties, Authority and Responsibilities
+
+ 
+
+In your capacity as CEO, you will have such duties, authorities and
+responsibilities as are (i) commensurate with such title (including managing the
+day-to-day business activities of PubCo and its subsidiaries subject to
+oversight by the Board), (ii) required of such position (including but not
+limited to such responsibilities as set forth in PubCo’s Bylaws) and (iii)
+assigned to you from time to time that are reasonably consistent with your
+position. You will report directly to the Board and will comply with PubCo’s
+written policies during your employment with PubCo. You agree to devote
+substantially all of your business time and attention to the performance of your
+duties; provided that following the Closing Date, (A) you will continue to serve
+as CEO of the Company and its subsidiaries; (B) you will be permitted to perform
+any role for any “Rice family owned” entity that is a non-operating entity
+and/or trust; (C) you shall not be precluded from engaging in civic, charitable
+or religious activities, (D) you shall not be precluded from serving on the
+board of directors of other companies that are not competitors to PubCo or its
+subsidiaries and that are approved by the Board, such approval not to be
+unreasonably withheld, provided however, that while you are CEO you will not
+serve on more than one other board of directors for any other company that is a
+public company (i.e., a company subject to Section 13 or 15(d) of the Securities
+Exchange Act of 1934, as amended) and (E) you shall not be precluded from
+managing your and your family’s personal passive investments. Notwithstanding
+the foregoing, any outside activities must be in compliance with PubCo’s Code of
+Ethics, including approval procedures, and must not materially interfere with
+your duties as CEO.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+4.                   Start Date
+
+ 
+
+Your start date will be the first calendar day after the Closing Date (the
+“Start Date”).
+
+ 
+
+5.                   Base Salary
+
+ 
+
+In consideration of your services, you will be paid an initial base salary of
+$750,000 per year, subject to at least annual reviews for increases by the
+Compensation Committee of the Board (the “Committee”), payable in accordance
+with the standard payroll practices of PubCo. Your initial base salary and any
+such upward adjustment in initial base salary shall constitute “Base Salary” for
+the purposes of this Offer Letter.
+
+ 
+
+6.                   Annual Bonus Award
+
+ 
+
+During your employment, you will be eligible to participate in PubCo’s annual
+bonus award plan, with terms and conditions as approved by the Committee, and as
+part of the same annual bonus award plan as other named executive officers of
+PubCo. Your target bonus opportunity will be 100% of your Base Salary, subject
+to annual review by the Committee, with a maximum bonus opportunity of 200% of
+your Base Salary. Your actual bonus payment will be based on performance as
+measured against goals approved annually by the Committee. For fiscal year 2020,
+your goals for your annual bonus award are set forth in PubCo’s summary annual
+bonus award plan for 2020 and your award thereunder, both of which have been
+approved by the Board of Directors or the Compensation Committee of CCH and are
+attached hereto as Exhibit A. For fiscal years 2021 and thereafter, your goals
+for your annual bonus award will be set forth in PubCo’s summary annual bonus
+award plan for such fiscal year and your award thereunder, each as adopted by
+the Committee after consultation with you.
+
+ 
+
+7.                   PubCo’s 2020 Omnibus Equity Incentive Plan
+
+ 
+
+During your employment with PubCo, you will be eligible to participate in
+PubCo’s 2020 Omnibus Equity Incentive Plan in the form attached hereto as
+Exhibit B, as mutually agreed upon by CCH and the Company pursuant to the
+Business Combination Agreement, approved by PubCo’s stockholders, and amended
+from time to time thereafter (the “OEIP”), and receive equity awards thereunder
+in the form as determined by the Committee, and subject to vesting and other
+conditions as set forth in the OEIP and the applicable award agreements.
+
+ 
+
+You will receive an initial grant under the OEIP with an aggregate grant date
+fair value equal to $1,500,000, with 50% of the grant value to be awarded on the
+Start Date in the form of a stock option (the “Initial Option Grant”)
+exercisable for shares of PubCo’s Class A common stock, $0.0001 par value per
+share (“Class A Common Stock”) The remaining 50% of the grant value will
+subsequently be awarded to you during calendar year 2020 in the form of
+performance share units (the “Initial PSU Grant”), subject to Pubco’s filing of
+a Registration Statement on Form S-8. The forms of Initial Option Grant and
+Initial PSU Grant have been approved by the Board of Directors or the
+Compensation Committee of CCH and are attached hereto as Exhibits C and D.
+
+ 
+
+
+
+2
+
+ 
+
+ 
+
+8.                   Utz Quality Foods, LLC 2018 Long-Term Incentive Plan
+
+ 
+
+On or around the Closing Date, the Utz Quality Foods, LLC 2018 Long-Term
+Incentive Plan (as amended, the “LTIP”) and your existing awards thereunder will
+be amended, as set forth in the Business Combination Agreement, to provide that
+your awards will be converted into restricted stock units that settle in shares
+of Class A Common Stock issued under the OEIP (the “Converted RSU Grant”) in
+accordance with the terms of the Converted RSU Grant in the form attached hereto
+as Exhibit E. Contingent upon the closing under the Business Combination
+Agreement, you hereby agree to consent to such amendment and to making such
+election for conversion. Following the Closing Date, you will retain your
+existing LTIP awards, as so amended, and remain eligible to vest in any unvested
+portion thereof. For clarity and the avoidance of doubt, Utz Quality Foods, LLC
+will make no new awards under the LTIP following the Closing Date.
+
+ 
+
+9.                   Severance
+
+ 
+
+Following the Start Date, you will participate in the Utz Brands, Inc. Executive
+Change in Control Severance Plan (the “Severance Plan”) attached hereto as
+Exhibit F, in accordance with its terms and conditions as in effect from time to
+time.
+
+Except for the Severance Plan, after the Start Date you will no longer be
+eligible to participate in any other severance plans, programs, policies or
+practices of PubCo, the Company or their respective subsidiaries, including but
+not limited to the Utz Quality Foods, LLC Executive Officer Team Change in
+Control Severance Benefit Policy.
+
+ 
+
+10.                 Other Benefits and Perquisites
+
+ 
+
+Following the Start Date, you will also be eligible and/or continue to be
+eligible to participate in the employee benefit plans and programs (excluding
+severance) generally available to PubCo’s senior executives and consistent with
+such plans and programs of Utz Quality Foods, LLC as in effect as of the date
+hereof, including but not limited to medical, life and disability insurance,
+retirement, vacation, fringe benefit, perquisite, business expense reimbursement
+and travel plans or programs, in accordance with and subject to eligibility and
+other terms and conditions of such plans and programs, as in effect from time to
+time. PubCo reserves the right to amend, modify or terminate any of its benefit
+plans or programs at any time and for any reason except as set forth in this
+Offer Letter.
+
+ 
+
+11.                 Withholding
+
+ 
+
+All forms of compensation paid to you as an employee of PubCo shall be less all
+applicable withholdings.
+
+ 
+
+12.                 At-will Employment
+
+ 
+
+Your employment with PubCo will be for no specific period of time. Rather, your
+employment will be at-will, meaning that you or the Board may terminate your
+employment relationship at any time, with or without cause, and with or without
+notice and for any reason or no particular reason. Although your compensation
+and benefits may change from time to time, the at-will nature of your employment
+may only be changed by an express written agreement signed on behalf of PubCo by
+an authorized officer of PubCo. Upon any termination of your employment with
+PubCo, you will immediately and without the need for any additional action be
+deemed to have resigned from all officer positions with PubCo, the Company, and
+each of their respective subsidiaries and as a member of the governing boards of
+the Company and its subsidiaries but not as a member of the Board.
+
+ 
+
+
+
+3
+
+ 
+
+ 
+
+13.                 Governing Law, Disputes and Waiver of Jury Trial
+
+ 
+
+This Offer Letter shall be governed by the laws of the State of Delaware,
+without regard to conflict of law principles, and any dispute between the
+parties will be resolved only in the courts of the State of Delaware or in the
+United States District Court for the District of Delaware and the appellate
+courts having jurisdiction of appeals in such courts. You and PubCo hereby
+waive, to the fullest extent permitted by law, any right to trial by jury
+resulting from any proceeding or cause of action brought to resolve any dispute
+between the parties arising out of, connected with, or related to your
+employment after the Closing Date with PubCo, the Company, or any of its
+subsidiaries, whether in contract, tort, equity or otherwise.
+
+ 
+
+14.                 Representations
+
+ 
+
+You represent that you are not party to any agreement that would limit your
+ability to discharge your duties to PubCo, the Company and their respective
+subsidiaries. As a condition of accepting this offer of employment, you agree to
+be subject to PubCo’s terms of employment which include restrictive covenants,
+assignment of inventions, confidentiality and non-disparagement, and
+non-competition and non-solicitation of employees, customers and suppliers
+provisions, all as set forth in the form of agreement as attached hereto as
+Exhibit G.
+
+ 
+
+15.                 Section 409A
+
+ 
+
+The intent of the parties is that the payments and benefits under this Offer
+Letter comply with or be exempt from Section 409A and accordingly, to the
+maximum extent permitted, this Offer Letter shall be interpreted to be in
+compliance therewith. 
+
+ 
+
+
+
+4
+
+ 
+
+ 
+
+If any payment, compensation or other benefit provided to you under this Offer
+Letter in connection with your “separation from service” (within the meaning of
+Section 409A) is determined, in whole or in part, to constitute “nonqualified
+deferred compensation” within the meaning of Section 409A and you are a
+specified employee as defined in Section 409A(2)(B)(i), no part of such payments
+shall be paid before the day that is six months plus one day after the date of
+termination or, if earlier, ten (10) business days following your death (the
+“New Payment Date”).  The aggregate of any payments and benefits that otherwise
+would have been paid and/or provided to you during the period between the date
+of termination and the New Payment Date shall be paid to you in a lump sum on
+such New Payment Date.  Thereafter, any payments and/or benefits that remain
+outstanding as of the day immediately following the New Payment Date shall be
+paid without delay over the time period originally scheduled, in accordance with
+the terms of this Offer Letter.  Notwithstanding anything to the contrary
+herein, to the extent that the foregoing delay applies to the provision of any
+ongoing welfare benefits, you shall pay the full cost of premiums for such
+welfare benefits due and payable prior to the New Payment Date and PubCo will
+pay you an amount equal to the amount of such premiums which otherwise would
+have been paid by PubCo during such period within five (5) business days
+following its conclusion.
+
+ 
+
+A termination of employment shall not be deemed to have occurred for purposes of
+any provision of this Offer Letter providing for the payment of any amounts or
+benefits subject to Section 409A upon or following a termination of employment
+unless such termination is also a “separation from service” within the meaning
+of Section 409A, and for purposes of any such provision of this Offer Letter,
+references to a “resignation,” “termination,” “terminate,” “termination of
+employment” or like terms shall mean separation from service.
+
+ 
+
+All expenses or other reimbursements as provided herein shall be payable in
+accordance with PubCo’s policies in effect from time to time, but in any event
+shall be made on or prior to the last day of the taxable year following the
+taxable year in which you incurred the expenses.  With regard to any provision
+herein that provides for reimbursement of costs and expenses or in-kind
+benefits, except as permitted by Section 409A: (i) the right to reimbursement or
+in-kind benefits shall not be subject to liquidation or exchange for another
+benefit; and (ii) the amount of expenses eligible for reimbursements or in-kind
+benefits provided during any taxable year shall not affect the expenses eligible
+for reimbursement or in-kind benefits to be provided in any other taxable year.
+
+ 
+
+For purposes of Section 409A, your right to receive any installment payments
+pursuant to this Offer Letter shall be treated as a right to receive a series of
+separate and distinct payments.  Whenever a payment under this Offer Letter
+specifies a payment period with reference to a number of days (e.g., payment
+shall be made within 30 days following the date of termination), the actual date
+of payment within the specified period shall be within the sole discretion of
+PubCo.
+
+ 
+
+If you wish to accept this position, please sign below and return this Offer
+Letter to me. This offer is open for you to accept until August 28, 2020, at
+which time it will be deemed to be withdrawn.
+
+ 
+
+  Sincerely,       COLLIER CREEK HOLDINGS       By: /s/ Roger Deromedi   Name:
+Roger Deromedi   Title: Co-Executive Chairman   Date: August 28, 2020
+
+ 
+
+Acceptance of Offer
+
+ 
+
+I have read, understood and accept all the terms of this Offer Letter. I have
+not relied on any agreements or representations, express or implied, with
+respect to such employment which are not set forth expressly in this Offer
+Letter or in the documents referred herein, and this Offer Letter supersedes all
+prior and contemporaneous understandings, agreements, representations and
+warranties, both written and oral, with respect to my employment by PubCo.
+
+    /s/ Dylan B. Lissette   Dylan B. Lissette       Date: August 28, 2020  
+
+ 
+
+[Signature Page to Dylan Lissette Offer Letter]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+APPENDIX A
+Certain Definitions
+
+ 
+
+1.“Bylaws” shall mean the bylaws of PubCo, as may be amended and/or restated
+from time to time.
+
+ 
+
+2.“Code” shall mean the Internal Revenue Code of 1986, as amended, and the rules
+and regulations promulgated thereunder.
+
+ 
+
+3.“Section 409A” shall mean Section 409A of the Code and the regulations and
+Internal Revenue Service notices thereunder.
+
+  
+
+
+
+ 
+
+ 
+
+ 
+
+ 
+
+Exhibit A
+
+2020 Annual Bonus Award Plan
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+
+
+[tm2029975d1_ex10-10img001.jpg]
+
+
+
+2020 Bonus Program for EOT Similar to2019; with a Progressive Scale consisting
+of three components: 1) Adjusted EBITDA: 2020’s 53 weektarget will be $120M
+paying at 100% to $132M paying at 200%. 30% 50% 2) GAAP Net Sales: 2020’s 53
+weektarget will be $907M paying at 100% to paying at 200%. 50% 30% 3) IDP: Now
+20% of Total Matrix for payout, vs 2019 at 10% and now includes the opportunity
+to earn up to 200% based on individual performance 
+
+ 
+
+ 
+
+ 
+
+Exhibit B
+
+2020 Omnibus Equity Incentive Plan 
+
+
+
+ 
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Execution Version
+
+ 
+
+UTZ BRANDS, INC. 2020 OMNIBUS EQUITY INCENTIVE PLAN
+
+ 
+
+1.                  Purpose; Eligibility.
+
+ 
+
+1.1              General Purpose. The name of this plan is the Utz Brands, Inc.
+2020 Omnibus Equity Incentive Plan. The purposes of the Plan are to (a) enable
+Utz Brands, Inc., a Delaware corporation (the “Company”), and any Affiliate to
+attract and retain the types of Employees, Consultants, and Independent
+Directors who will contribute to the Company’s long range success; (b) provide
+incentives that align the interests of Employees, Consultants and Independent
+Directors with those of the stockholders of the Company; and (c) promote the
+success of the Company’s business.
+
+ 
+
+1.2              Eligible Award Recipients. The Persons eligible to receive
+Awards are the Employees, Consultants and Independent Directors of the Company
+and its Affiliates and such other individuals designated by the Committee who
+are reasonably expected to become Employees, Consultants and Independent
+Directors after the receipt of Awards.
+
+ 
+
+1.3              Available Awards. Awards that may be granted under the Plan
+include: (a) Incentive Stock Options, (b) Non-qualified Stock Options, (c) Stock
+Appreciation Rights, (d) Restricted Awards, (e) Performance Share Awards, (f)
+Cash Awards, and (g) Other Equity-Based Awards. Except with respect to the
+conversion of phantom units into Restricted Stock Units in accordance with the
+LTIP, following the Effective Date, no further equity compensation awards shall
+be granted pursuant to any Predecessor Plan (it being understood that
+outstanding awards under any Predecessor Plan will continue to be settled
+pursuant to the terms of such Predecessor Plan).
+
+ 
+
+2.                  Definitions.
+
+ 
+
+“Affiliate” means a parent or subsidiary corporation of the Company, as defined
+in Section 424 of the Code (substituting “Company” for “employer corporation”),
+any other entity that is a parent or subsidiary of the Company, including a
+parent or subsidiary which becomes such after the Effective Date of the Plan.
+
+ 
+
+“Applicable Laws” means the requirements related to or implicated by the
+administration of the Plan under applicable state corporate law, United States
+federal and state securities laws, the Code, any stock exchange or quotation
+system on which the shares of Common Stock are listed or quoted, and the
+applicable laws of any foreign country or jurisdiction where Awards are granted
+under the Plan.
+
+ 
+
+“Award” means any right granted under the Plan, including an Incentive Stock
+Option, a Non-qualified Stock Option, a Stock Appreciation Right, a Restricted
+Award, a Performance Share Award, a Cash Award, or an Other Equity-Based Award.
+
+ 
+
+“Award Agreement” means a written agreement, contract, certificate or other
+instrument or document evidencing the terms and conditions of an individual
+Award granted under the Plan which may, in the discretion of the Company, be
+transmitted electronically to any Participant. Each Award Agreement shall be
+subject to the terms and conditions of the Plan.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule
+13d-5 under the Exchange Act, except that in calculating the beneficial
+ownership of any particular Person, such Person shall be deemed to have
+beneficial ownership of all securities that such Person has the right to acquire
+by conversion or exercise of other securities, whether such right is currently
+exercisable or is exercisable only after the passage of time. The terms
+“Beneficially Owns,” “Beneficially Owned” and “Beneficial Ownership” have a
+corresponding meaning.
+
+ 
+
+“Board” means the Board of Directors of the Company, as constituted at any time.
+
+ 
+
+“Cash Award” means an Award denominated in cash that is granted under Section 10
+of the Plan.
+
+ 
+
+“Cause” means:
+
+ 
+
+(a)       With respect to any Employee or Consultant, unless the applicable
+Award Agreement provides otherwise, if the Employee or Consultant is a party to
+an employment or service agreement with the Company or its Affiliates and such
+agreement provides for a definition of Cause (or any term of similar effect),
+the definition contained therein; or if no such agreement exists, or if such
+agreement does not define Cause (or any term of similar effect): (i) the
+commission of, or plea of guilty or no contest to, a felony or other crime
+involving dishonesty, moral turpitude or the commission of any other act
+involving willful malfeasance or breach of fiduciary duty with respect to the
+Company or an Affiliate; (ii) any acts, omissions or statements that are, or are
+reasonably likely to be, detrimental or damaging to the reputation, operations,
+prospects or business relations of the Company or an Affiliate; (iii) gross
+negligence or willful misconduct with respect to the Company or an Affiliate, or
+willful or repeated failure or refusal to substantially perform assigned duties;
+(iv) violation of state or federal securities laws; (v) material violation of
+the Company’s written policies or codes of conduct, including written policies
+related to discrimination, harassment, performance of illegal or unethical
+activities, and ethical misconduct; (vi) any act of fraud, embezzlement,
+material misappropriation or dishonesty against the Company or an Affiliate;
+(vii) any material breach of a written agreement with the Company or an
+Affiliate, including, without limitation, a breach of any employment,
+consulting, confidentiality, non-competition, non-solicitation,
+non-disparagement or similar agreement.
+
+ 
+
+(b)       With respect to any Independent Director, unless the applicable Award
+Agreement provides otherwise, a determination by a majority of the disinterested
+Board members that the Independent Director has engaged in any of the following:
+(i) malfeasance in office; (ii) gross misconduct or negligence; (iii) false or
+fraudulent misrepresentation inducing the Independent Director’s appointment;
+(iv) willful conversion of corporate funds; or (v) repeated failure to
+participate in Board meetings on a regular basis despite having received proper
+notice of the meetings in advance.
+
+ 
+
+The Committee, in its absolute discretion, shall determine the effect of all
+matters and questions relating to whether a Participant has been discharged for
+Cause.
+
+
+
+2
+
+ 
+
+ 
+
+“Change in Control” means any of the following:
+
+ 
+
+(a) A transaction or series of transactions (other than an offering of shares of
+Common Stock to the general public through a registration statement filed with
+the Securities and Exchange Commission or a transaction or series of
+transactions that meets the requirements of clauses (i) and (ii) of subsection
+(d) below) whereby any Person (other than the Company, any of its subsidiaries,
+an employee benefit plan maintained by the Company or any of its subsidiaries or
+a Person that, prior to such transaction, directly or indirectly controls, is
+controlled by, or is under common control with, the Company) directly or
+indirectly acquires Beneficial Ownership of securities of the Company possessing
+more than 50% of the total combined voting power of the Company’s securities
+that are outstanding immediately after such acquisition; or
+
+ 
+
+(b) During any period of 24 months, individuals who, at the beginning of such
+period, constitute the Board (the “Incumbent Directors”) cease for any reason to
+constitute at least a majority of the Board; provided, that any Person becoming
+a Director subsequent to the Effective Date, whose election or nomination for
+election was approved by a vote of at least two-thirds of the Incumbent
+Directors then on the Board (either by a specific vote or by approval of the
+proxy statement of the Company in which such Person is named as a nominee for
+Director, without written objection to such nomination) shall be an Incumbent
+Director; provided, however, that no individual initially elected or nominated
+as a Director during such period as a result of an actual or threatened election
+contest, as such terms are used in Rule 14a-12 of Regulation 14A promulgated
+under the Exchange Act, with respect to Directors or as a result of any other
+actual or threatened solicitation of proxies or consents by or on behalf of any
+Person other than the Board shall be deemed to be an Incumbent Director; or
+
+ 
+
+(c) The date that is ten (10) business days prior to the complete liquidation or
+dissolution of the Company; or
+
+ 
+
+(d) The consummation by the Company (whether directly involving the Company or
+indirectly involving the Company through one or more intermediaries) of (x) a
+merger, consolidation, reorganization, or business combination, (y) a sale or
+other disposition of all or substantially all of the Company’s assets in any
+single transaction or series of related transactions, or (z) the acquisition of
+assets or shares of another entity, in each case other than a transaction:
+
+ 
+
+(i) which results in the Company’s voting securities outstanding immediately
+before the transaction continuing to represent (either by remaining outstanding
+or by being converted into voting securities of the Company or the Person that,
+as a result of the transaction, controls, directly or indirectly, the Company or
+owns, directly or indirectly, all or substantially all of the Company’s assets
+or otherwise succeeds to the business of the Company (the Company or such
+Person, the “Successor Entity”)) directly or indirectly, more than 50% of the
+total combined voting power of the Successor Entity’s outstanding voting
+securities immediately after the transaction, and
+
+ 
+
+(ii) after which no Person Beneficially Owns securities representing 50% or more
+of the total combined voting power of the Successor Entity; provided, however,
+that no Person shall be treated for purposes of this clause (ii) as Beneficially
+Owning 50% or more of the total combined voting power of the Successor Entity
+solely as a result of the voting power held in the Company prior to the
+consummation of the transaction.
+
+ 
+
+A Change in Control shall not be deemed to have occurred if the Sponsor, any
+Family Member or any of their respective Affiliates Beneficially Own or acquire
+more than 50% of the total combined voting power of the Company (or any
+successor to substantially all of the assets of the Company and its
+subsidiaries) or any direct or indirect parent company.
+
+ 
+
+
+
+3
+
+ 
+
+ 
+
+Notwithstanding the foregoing, if a Change in Control constitutes a payment
+event with respect to any Award (or portion of any Award) that provides for the
+deferral of compensation that is subject to Section 409A, to the extent required
+to avoid the imposition of additional taxes under Section 409A, the transaction
+or event described in subsection (a), (b), (c) or (d) with respect to such Award
+(or portion thereof) shall only constitute a Change in Control for purposes of
+the payment timing of such Award if such transaction also constitutes a “change
+in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
+
+ 
+
+The Committee shall have full and final authority, which shall be exercised in
+its discretion, to determine conclusively whether a Change in Control has
+occurred pursuant to the above definition, the date of the occurrence of such
+Change in Control and any incidental matters relating thereto; provided that any
+exercise of authority in conjunction with a determination of whether a Change in
+Control is a “change in control event” as defined in Treasury Regulation Section
+1.409A-3(i)(5) shall be consistent with such regulation.
+
+ 
+
+“Code” means the Internal Revenue Code of 1986, as it may be amended from time
+to time. Any reference to a section of the Code shall be deemed to include a
+reference to any regulations promulgated thereunder.
+
+ 
+
+“Committee” means the Compensation Committee of the Board or one or more
+subcommittees appointed by the Committee to administer the Plan in accordance
+with Section 3.3 and Section 3.4 or, if no such Compensation Committee or
+subcommittee thereof exists, or in its sole discretion, the Board.
+
+ 
+
+“Common Stock” means the Class A common stock, $0.0001 par value per share, of
+the Company, or such other securities of the Company as may be designated by the
+Committee from time to time in substitution thereof.
+
+ 
+
+“Company” means Utz Brands, Inc., a Delaware corporation, and any successor
+thereto.
+
+ 
+
+“Consultant” means any individual or entity which performs bona fide services
+for the Company or an Affiliate, other than as an Employee or Independent
+Director, and who may be offered securities registerable pursuant to a
+registration statement on Form S-8 under the Securities Act.
+
+ 
+
+“Continuous Service” means that the Participant’s service with the Company or an
+Affiliate, whether as an Employee, Consultant or Independent Director, is not
+interrupted or terminated. The Participant’s Continuous Service shall not be
+deemed to have terminated merely because of a change in the capacity in which
+the Participant renders service to the Company or an Affiliate as an Employee,
+Consultant or Independent Director or a change in the entity for which the
+Participant renders such service, provided that there is no interruption or
+termination of the Participant’s Continuous Service; provided further that if
+any Award is subject to Section 409A of the Code, this sentence shall only be
+given effect to the extent consistent with Section 409A of the Code. For
+example, a change in status from an Employee of the Company to an Independent
+Director of an Affiliate will not constitute an interruption of Continuous
+Service. The Committee or its delegate, in its sole discretion, may determine
+whether Continuous Service shall be considered interrupted in the case of any
+leave of absence approved by that party, including sick leave, military leave or
+any other personal or family leave of absence. The Committee or its delegate, in
+its sole discretion, may determine whether a Company transaction, such as a sale
+or spin-off of a division or subsidiary that employs a Participant, shall be
+deemed to result in a termination of Continuous Service for purposes of affected
+Awards, and any such decision shall be final, conclusive and binding on all
+parties.
+
+ 
+
+
+
+4
+
+ 
+
+ 
+
+“Deferred Stock Units” has the meaning set forth in Section 8.1(b) hereof.
+
+ 
+
+“Director” means a member of the Board.
+
+ 
+
+“Disability” means, unless the applicable Award Agreement provides otherwise,
+that the Participant is unable to engage in any substantial gainful activity by
+reason of any medically determinable physical or mental impairment which can be
+expected to result in death or which has lasted or can be expected to last for a
+continuous period of not less than 12 months. The determination of whether an
+individual has a Disability shall be determined under procedures established by
+the Committee. Except in situations where the Committee is determining
+Disability for purposes of the term of an Incentive Stock Option pursuant to
+Section 6.9 hereof within the meaning of Section 22(e)(3) of the Code, the
+Committee may rely on any determination that a Participant is disabled for
+purposes of benefits under any long-term disability plan maintained by the
+Company or any Affiliate in which a Participant participates.
+
+ 
+
+“Disqualifying Disposition” has the meaning set forth in Section 16.11.
+
+ 
+
+“Effective Date” shall mean the later of (i) the date that the Company’s
+stockholders approve the Plan and (ii) August 28, 2020.
+
+ 
+
+“Employee” means any Person, including an Officer or Director who is not an
+Independent Director employed by the Company or an Affiliate; provided,
+that, for purposes of determining eligibility to receive Incentive Stock
+Options, an Employee shall mean an employee of the Company or a parent or
+subsidiary corporation within the meaning of Section 424 of the Code. Mere
+service as an Independent Director or payment of a director’s fee by the Company
+or an Affiliate shall not be sufficient to constitute “employment” by the
+Company or an Affiliate.
+
+ 
+
+“Exchange Act” means the Securities Exchange Act of 1934, as amended.
+
+ 
+
+“Fair Market Value” means, with respect to a share of Common Stock as of a given
+date of determination hereunder, (i) subject to clause (iii), the closing price
+as quoted on the New York Stock Exchange or on such other principal exchange or
+market on which the Common Stock is traded on such date of determination, or
+(ii) if the Common Stock was not traded on such date, then the immediately
+preceding date on which sales of shares of Common Stock have been so quoted or
+reported shall be used, or (iii) with respect to any Awards issued on the
+Effective Date, the closing price on the New York Stock Exchange of a share of
+Class A common stock of Collier Creek Holdings on the immediately preceding date
+on which shares of Common Stock were traded. If there should not be a public
+market for the Common Stock on such date, “Fair Market Value” shall be such
+value as determined by the Board in its discretion and, to the extent necessary,
+shall be determined in a manner consistent with Section 409A of the Code. Any
+such determination by the Board shall be final, conclusive, and binding on all
+parties.
+
+ 
+
+
+
+5
+
+ 
+
+ 
+
+“Family Member” means any of (a) Michael Rice, (b) the spouse and lineal
+descendants (whether natural or adopted) of Michael Rice, (c) any spouse of any
+lineal descendants of Michael Rice, (d) a trust solely for the benefit of any
+individuals described in the foregoing clauses (a) through (c), and (e) any
+entity in which the Persons described in the foregoing clauses (a) through (d)
+own more than 50% of the voting interests.
+
+ 
+
+“Fiscal Year” means the Company’s fiscal year.
+
+ 
+
+“Free Standing Rights” has the meaning set forth in Section 7.
+
+ 
+
+“Grant Date” means the date on which the Committee adopts a resolution, or takes
+other appropriate action, expressly granting an Award to a Participant that
+specifies the key terms and conditions of the Award or, if a later date is set
+forth in such resolution, then such date as is set forth in such resolution.
+
+ 
+
+“Incentive Stock Option” means an Option that is designated by the Committee as
+an incentive stock option within the meaning of Section 422 of the Code and that
+meets the requirements set out in the Plan.
+
+ 
+
+“Independent Director” means any member of the Board or any member of the board
+of directors of an Affiliate (or similar governing body of an Affiliate that is
+not a corporation) who is not an Employee or Consultant.
+
+ 
+
+“LTIP” means the Utz Quality Foods, LLC 2020 Long-Term Incentive Plan, a
+sub-plan to this Plan.
+
+ 
+
+“Non-Employee Director” means a Director who is a “non-employee director” within
+the meaning of Rule 16b-3.
+
+ 
+
+“Non-qualified Stock Option” means an Option that by its terms does not qualify
+or is not intended to qualify as an Incentive Stock Option.
+
+ 
+
+“Officer” means a Person who is an officer of the Company within the meaning of
+Section 16 of the Exchange Act and the rules and regulations promulgated
+thereunder.
+
+ 
+
+“Option” means an Incentive Stock Option or a Non-qualified Stock Option granted
+pursuant to the Plan.
+
+ 
+
+“Optionholder” means a Person to whom an Option is granted pursuant to the Plan
+or, if applicable, such other Person who holds an outstanding Option.
+
+ 
+
+“Option Exercise Price” means the price at which a share of Common Stock may be
+purchased upon the exercise of an Option.
+
+ 
+
+
+
+6
+
+ 
+
+ 
+
+“Other Equity-Based Award” means an Award that is not an Option, Stock
+Appreciation Right, Restricted Stock, Restricted Stock Unit, or Performance
+Share Award that is granted under Section 10 and is payable by delivery of
+Common Stock and/or which is measured by reference to the value of Common Stock.
+
+ 
+
+“Participant” means an eligible Person to whom an Award is granted pursuant to
+the Plan or, if applicable, such other Person who holds an outstanding Award.
+
+ 
+
+“Performance Criteria” means the criterion or criteria that the Committee shall
+select for purposes of establishing the Performance Goal(s) for a Performance
+Period with respect to any Award under the Plan. The Performance Criteria that
+will be used to establish the Performance Goal(s) shall be based on the
+attainment of specific levels of performance of the Company (or Affiliate,
+division, business unit or operational unit of the Company) or any Participant,
+which may be determined in accordance with GAAP or on a non-GAAP basis
+including, but not limited to, one or more of the following measures: (a) terms
+relative to a peer group or index; (b) basic, diluted, or adjusted earnings per
+share; (c) sales or revenue;(d) earnings before interest, taxes, and other
+adjustments (in total or on a per share basis); (e) cash available for
+distribution; (f) basic or adjusted net income; (g) returns on equity, assets,
+capital, revenue or similar measure; (h) level and growth of dividends; (i) the
+price or increase in price of Common Stock; (j) total shareholder return; (k)
+total assets;(l) growth in assets, new originations of assets, or financing of
+assets; (m) equity market capitalization; (n) reduction or other quantifiable
+goal with respect to general and/or specific expenses; (o) equity capital
+raised; (p) mergers, acquisitions, increase in enterprise value of Affiliates,
+subsidiaries, divisions or business units or sales of assets of Affiliates,
+subsidiaries, divisions or business units or sales of assets; and (q) any
+combination of the foregoing. Any one or more of the Performance Criteria may be
+stated as a percentage of another Performance Criteria, or used on an absolute
+or relative basis to measure the performance of the Company and/or one or more
+Affiliates as a whole or any divisions or operational and/or business units,
+business segments, administrative departments of the Company and/or one or more
+Affiliates or any combination thereof, as the Committee may deem appropriate, or
+any of the above Performance Criteria may be compared to the performance of a
+selected group of comparison companies, or a published or special index that the
+Committee, in its sole discretion, deems appropriate, or as compared to various
+stock market indices.
+
+ 
+
+“Performance Goals” means, for a Performance Period, the one or more goals
+established by the Committee for the Performance Period based upon Performance
+Criteria determined by the Committee in its discretion.
+
+ 
+
+“Performance Period” means the one or more periods of time, as the Committee may
+select, over which the attainment of one or more Performance Goals will be
+measured for the purpose of determining a Participant’s right to and the payment
+of a Performance Share Award or a Cash Award.
+
+ 
+
+
+
+7
+
+ 
+
+ 
+
+“Performance Share Award” means any Award granted pursuant to Section 9 hereof.
+
+ 
+
+“Performance Share” means the grant of a right to receive a number of actual
+shares of Common Stock or share units based upon the performance of the Company
+during a Performance Period, as determined by the Committee.
+
+ 
+
+“Permitted Transferee” means: (a) a member of the Participant’s immediate family
+(child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former
+spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
+daughter-in-law, brother-in-law, or sister-in-law, including adoptive
+relationships), any Person sharing the Participant’s household (other than a
+tenant or employee) in each case as approved by the Committee, a trust in which
+these Persons have more than 50% of the beneficial interest, a foundation in
+which these Persons (or the Participant) control the management of assets, and
+any other entity in which these Persons (or the Participant) own more than 50%
+of the voting interests; and (b) such other transferees as may be permitted by
+the Committee in its sole discretion.
+
+ 
+
+“Person” means an individual, entity or group (within the meaning of Section
+13(d)(3) of the Exchange Act).
+
+ 
+
+“Plan” means this Utz Brands, Inc. 2020 Omnibus Equity Incentive Plan, as
+amended and/or amended and restated from time to time.
+
+ 
+
+“Predecessor Plan” means any of the plans maintained by the Company or any of
+its Affiliates under which equity or equity-based awards were granted, including
+the LTIP.
+
+ 
+
+“Related Rights” has the meaning set forth in Section 7.
+
+ 
+
+“Restricted Award” means any Award granted pursuant to Section 8.
+
+ 
+
+“Restricted Period” has the meaning set forth in Section 8.
+
+ 
+
+“Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any
+successor to Rule 16b-3, as in effect from time to time.
+
+ 
+
+“Securities Act” means the Securities Act of 1933, as amended.
+
+ 
+
+“Sponsor” means Collier Creek Partners, LLC, a Delaware limited liability
+company.
+
+ 
+
+“Stock Appreciation Right” means the right pursuant to an Award granted under
+Section 7 to receive, upon exercise, an amount payable in cash or shares equal
+to the number of shares subject to the Stock Appreciation Right that is being
+exercised multiplied by the excess of (a) the Fair Market Value of a share of
+Common Stock on the date the Award is exercised, over (b) the exercise price
+specified in the Stock Appreciation Right Award Agreement.
+
+ 
+
+“Stock for Stock Exchange” has the meaning set forth in Section 6.4.
+
+ 
+
+“Substitute Award” has the meaning set forth in Section 4.6.
+
+ 
+
+“Ten Percent Stockholder” means a Person who owns (or is deemed to own pursuant
+to Section 424(d) of the Code) stock possessing more than 10% of the total
+combined voting power of all classes of stock of the Company or of any of its
+Affiliates.
+
+ 
+
+“Total Share Reserve” has the meaning set forth in Section 4.1.
+
+ 
+
+
+
+8
+
+ 
+
+ 
+
+3.                  Administration.
+
+ 
+
+3.1              Authority of Committee. The Plan shall be administered by the
+Committee, or in the Board’s sole discretion, by the Board. The Board may revoke
+such delegation to the Committee at any time and revest in the Board the
+administration of the Plan. Subject to the terms of the Plan, the Committee’s
+charter and Applicable Laws, and in addition to other express powers and
+authorization conferred by the Plan, the Committee shall have the authority:
+
+ 
+
+(a)               to construe and interpret the Plan and apply its provisions;
+
+ 
+
+(b)               to promulgate, amend, and rescind rules and regulations
+relating to the administration of the Plan;
+
+ 
+
+(c)               to authorize any Person to execute, on behalf of the Company,
+any instrument required to carry out the purposes of the Plan;
+
+ 
+
+(d)               to delegate its authority to one or more Officers of the
+Company with respect to Awards that do not involve “insiders” within the meaning
+of Section 16 of the Exchange Act;
+
+ 
+
+(e)               to determine when Awards are to be granted under the Plan and
+the applicable Grant Date;
+
+ 
+
+(f)                from time to time to select, subject to the limitations set
+forth in the Plan, those eligible Award recipients to whom Awards shall be
+granted;
+
+ 
+
+(g)               to determine the number of shares of Common Stock to be made
+subject to each Award;
+
+ 
+
+(h)               to determine whether each Option is to be an Incentive Stock
+Option or a Non-qualified Stock Option;
+
+ 
+
+(i)                 to prescribe the terms and conditions of each Award,
+including, without limitation, the exercise price and medium of payment and
+vesting provisions, and to specify the provisions of the Award Agreement
+relating to such grant;
+
+ 
+
+(j)                 to determine the target number of Performance Shares to be
+granted pursuant to a Performance Share Award, the performance measures that
+will be used to establish the Performance Goals, the Performance Period(s) and
+the number of Performance Shares earned by a Participant;
+
+ 
+
+
+
+9
+
+ 
+
+ 
+
+(k)               to amend any outstanding Awards, including for the purpose of
+modifying the time or manner of vesting or the term of any outstanding Award;
+provided, however, that if any such amendment impairs a Participant’s rights or
+increases a Participant’s obligations under his or her Award or creates or
+increases a Participant’s federal income tax liability with respect to an Award,
+such amendment shall also be subject to the Participant’s consent;
+
+ 
+
+(l)                 to determine the duration and purpose of leaves of absences
+which may be granted to a Participant without constituting termination of their
+employment for purposes of the Plan, which periods shall be no shorter than the
+periods generally applicable to Employees under the Company’s employment
+policies;
+
+ 
+
+(m)             to make decisions with respect to outstanding Awards that may
+become necessary upon a change in corporate control or an event that triggers
+anti-dilution adjustments;
+
+ 
+
+(n)               to interpret, administer, reconcile any inconsistency in,
+correct any defect in and/or supply any omission in the Plan and any instrument
+or agreement relating to, or Award granted under, the Plan;
+
+ 
+
+(o)               to exercise discretion to make any and all other
+determinations which it determines to be necessary or advisable for the
+administration of the Plan; and
+
+ 
+
+(p)               to impose a “blackout” or other periods during which Awards
+may not be exercised or settled.
+
+ 
+
+The Committee also may modify the purchase price or the exercise price of any
+outstanding Award, provided that if the modification effects a repricing or a
+cash buyout of underwater Options or Stock Appreciation Rights, stockholder
+approval shall be required before the repricing is effective.
+
+ 
+
+3.2              Committee Decisions Final. All decisions made by the Committee
+pursuant to the provisions of the Plan shall be final, conclusive, and binding
+on the Company and the Participants, unless such decisions are determined by a
+court having jurisdiction to be arbitrary and capricious.
+
+ 
+
+3.3              Delegation. The Committee may delegate administration of the
+Plan to a subcommittee or subcommittees of one or more members of the Board, and
+the term “Committee” shall apply to any Person or Persons to whom such authority
+has been delegated, subject, however, to Applicable Law and to such resolutions,
+not inconsistent with the provisions of the Plan, as may be adopted from time to
+time by the Board. Any such delegation may be revoked by the Committee at any
+time.
+
+ 
+
+3.4              Committee Composition. To the extent the Board desires to
+comply with the exemption requirements of Rule 16b-3 (if the Board is not acting
+as the Committee under the Plan), with respect to any insider subject to Section
+16 of the Exchange Act, the Committee shall be a compensation committee of the
+Board that at all times consists solely of two or more Non-Employee Directors.
+Within the scope of such authority, the Board or the Committee may delegate to a
+committee of one or more members of the Board who are not Non-Employee
+Directors, or one or more officers of the Company or any of its subsidiaries,
+the authority to grant Awards to eligible Persons who are not then subject to
+Section 16 of the Exchange Act. Nothing herein shall create an inference that an
+Award is not validly granted under the Plan in the event Awards are granted
+under the Plan by a Committee that does not at all times consist solely of two
+or more Non-Employee Directors.
+
+ 
+
+
+
+10
+
+ 
+
+ 
+
+3.5              Indemnification. In addition to such other rights of
+indemnification as they may have as Directors or members of the Committee, and
+to the extent allowed by Applicable Laws, the Committee shall be indemnified by
+the Company against the reasonable expenses, including attorney’s fees, actually
+incurred in connection with any action, suit or proceeding or in connection with
+any appeal therein, to which the Committee may be party by reason of any action
+taken or failure to act under or in connection with the Plan or any Award
+granted under the Plan, and against all amounts paid by the Committee in
+settlement thereof (provided, however, that the settlement has been approved by
+the Company, which approval shall not be unreasonably withheld) or paid by the
+Committee in satisfaction of a judgment in any such action, suit or proceeding,
+except in relation to matters as to which it shall be adjudged in such action,
+suit or proceeding that such Committee did not act in good faith and in a manner
+which such Person reasonably believed to be in the best interests of the
+Company, or in the case of a criminal proceeding, had no reason to believe that
+the conduct complained of was unlawful; provided, however, that within 60 days
+after the institution of any such action, suit or proceeding, such Committee
+shall, in writing, offer the Company the opportunity at its own expense to
+handle and defend such action, suit or proceeding.
+
+ 
+
+4.                  Shares Subject to the Plan.
+
+ 
+
+4.1              Subject to adjustment in accordance with Section 14, no more
+than 9,500,000 shares of Common Stock shall be available for the grant of Awards
+under the Plan (the “Total Share Reserve”). During the terms of the Awards, the
+Company shall keep available at all times the number of shares of Common Stock
+required to satisfy such Awards.
+
+ 
+
+4.2              Shares of Common Stock available for distribution under the
+Plan may consist, in whole or in part, of authorized and unissued shares,
+treasury shares or shares reacquired by the Company in any manner.
+
+ 
+
+4.3              Subject to adjustment in accordance with Section 14, no more
+than 9,500,000 shares of Common Stock may be issued in the aggregate pursuant to
+the exercise of Incentive Stock Options (the “ISO Limit”).
+
+ 
+
+4.4              The maximum number of shares of Common Stock subject to Awards
+granted during a single Fiscal Year to any Director, together with any cash fees
+paid to such Director during the Fiscal Year shall not exceed a total value of
+$500,000 (calculating the value of any Awards based on the grant date fair value
+for financial reporting purposes). Notwithstanding the foregoing, the Board may
+provide, in its discretion, for exceptions to this limit for a Non-Employee
+Director, provided that the Non-Employee Director receiving such additional
+compensation may not participate in the decision to award such compensation.
+
+ 
+
+
+
+11
+
+ 
+
+ 
+
+4.5              Any shares of Common Stock subject to an Award that expires or
+is canceled, forfeited, cash-settled or terminated without issuance of the full
+number of shares of Common Stock to which the Award related will again be
+available for issuance under the Plan. Shares subject to an Award under the Plan
+shall be deemed to constitute shares not issued to the Participant and shall be
+deemed to again be made available for issuance or delivery under the Plan if
+such shares are (a) shares tendered in payment of an Option, (b) shares
+delivered or withheld by the Company to satisfy any tax withholding obligation,
+or (c) shares covered by a stock-settled Stock Appreciation Right or other
+Awards that were not issued upon the settlement of the Award.
+
+ 
+
+4.6              Awards: (i) may, in the sole discretion of the Committee, be
+granted under the Plan in assumption of, or in substitution for, outstanding
+awards previously granted by an entity acquired by the Company or with which the
+Company combines, and (ii) shall be granted in the form of restricted stock
+units under the LTIP for all LTIP participants who elect to convert their LTIP
+benefit into Restricted Stock Units (collectively, the “Substitute Awards”).
+Substitute Awards shall not be counted against the Total Share Reserve;
+provided, that, Substitute Awards issued in connection with the assumption of,
+or in substitution for, outstanding options intended to qualify as Incentive
+Stock Options shall be counted against the ISO limit. Subject to applicable
+stock exchange requirements, converted awards of Restricted Stock Units under
+the LTIP and available shares under a stockholder-approved plan of an entity
+directly or indirectly acquired by the Company or with which the Company
+combines (as appropriately adjusted to reflect such acquisition or transaction)
+may be used for Awards under the Plan and shall not count toward the Total Share
+Reserve.
+
+ 
+
+4.7              Notwithstanding any other provision of the Plan to the
+contrary, with respect to any Award that provides for or includes a right to
+dividends or dividend equivalents, if dividends are declared during the period
+that an equity Award is outstanding, such dividends (or dividend equivalents)
+shall either (i) not be paid or credited with respect to such Award or (ii) be
+accumulated but remain subject to vesting requirement(s) to the same extent as
+the applicable Award and shall only be paid at the time or times such vesting
+requirement(s) are satisfied. In no event shall dividends or dividend
+equivalents be paid with respect to Options or Stock Appreciation Rights.
+
+ 
+
+5.                  Eligibility.
+
+ 
+
+5.1              Eligibility for Specific Awards. Incentive Stock Options may be
+granted only to Employees. Awards other than Incentive Stock Options may be
+granted to Employees, Consultants and Independent Directors and those
+individuals whom the Committee determines are reasonably expected to become
+Employees, Consultants and Independent Directors following the Grant Date.
+
+ 
+
+5.2              Ten Percent Stockholders. A Ten Percent Stockholder shall not
+be granted an Incentive Stock Option unless the Option Exercise Price is at
+least 110% of the Fair Market Value of the Common Stock on the Grant Date and
+the Option is not exercisable after the expiration of five years from the Grant
+Date.
+
+ 
+
+
+
+12
+
+ 
+
+ 
+
+6.                  Option Provisions. Each Option granted under the Plan shall
+be evidenced by an Award Agreement. Each Option so granted shall be subject to
+the conditions set forth in Section 5 and this Section 6, and to such other
+conditions not inconsistent with the Plan as may be set forth in the applicable
+Award Agreement. All Options shall be separately designated Incentive Stock
+Options or Non-qualified Stock Options at the time of grant, and, if
+certificates are issued, a separate certificate or certificates will be issued
+for shares of Common Stock purchased on exercise of each type of Option.
+Notwithstanding the foregoing, the Company shall have no liability to any
+Participant or any other Person if an Option designated as an Incentive Stock
+Option fails to qualify as such at any time or if an Option is determined to
+constitute “nonqualified deferred compensation” within the meaning of Section
+409A of the Code and the terms of such Option do not satisfy the requirements of
+Section 409A of the Code. The provisions of separate Options need not be
+identical, but each Option shall include (through incorporation of provisions
+hereof by reference in the Option or otherwise) the substance of each of the
+following provisions:
+
+ 
+
+6.1              Term. Subject to the provisions of Section 5.2 regarding Ten
+Percent Stockholders, no Incentive Stock Option shall be exercisable after the
+expiration of 10 years from the Grant Date. The term of a Non-qualified Stock
+Option granted under the Plan shall be determined by the Committee; provided,
+however, no Non-qualified Stock Option shall be exercisable after the expiration
+of 10 years from the Grant Date.
+
+ 
+
+6.2              Exercise Price of an Incentive Stock Option. Subject to the
+provisions of Section 5.2 regarding Ten Percent Stockholders, the Option
+Exercise Price of each Incentive Stock Option shall be not less than 100% of the
+Fair Market Value of the Common Stock subject to the Option on the Grant Date.
+Notwithstanding the foregoing, an Incentive Stock Option may be granted with an
+Option Exercise Price lower than that set forth in the preceding sentence if
+such Option is granted pursuant to an assumption or substitution for another
+option in a manner satisfying the provisions of Section 424(a) of the Code.
+
+ 
+
+6.3              Exercise Price of a Non-qualified Stock Option. The Option
+Exercise Price of each Non-qualified Stock Option shall be not less than 100% of
+the Fair Market Value of the Common Stock subject to the Option, as determined
+by the Committee using one of the methods permitted by Treasury Regulation
+Section 1.409A-1(b)(5)(iv)(A). Notwithstanding the foregoing, a Non-qualified
+Stock Option may be granted with an Option Exercise Price lower than that set
+forth in the preceding sentence if such Option is granted pursuant to an
+assumption or substitution for another option in a manner satisfying the
+provisions of Section 409A of the Code.
+
+ 
+
+6.4              Consideration. The Option Exercise Price of Common Stock
+acquired pursuant to an Option shall be paid, to the extent permitted by
+Applicable Laws, either (a) in cash or by certified or bank check at the time
+the Option is exercised or (b) in the discretion of the Committee, upon such
+terms as the Committee shall approve: (i) by delivery to the Company of other
+Common Stock, duly endorsed for transfer to the Company, with a Fair Market
+Value on the date of delivery equal to the Option Exercise Price (or portion
+thereof) due for the number of shares being acquired, or by means of attestation
+whereby the Participant identifies for delivery specific shares of Common Stock
+that have an aggregate Fair Market Value on the date of attestation equal to the
+Option Exercise Price (or portion thereof) and receives a number of shares of
+Common Stock equal to the difference between the number of shares thereby
+purchased and the number of identified attestation shares of Common Stock (a
+“Stock for Stock Exchange”); (ii) a “cashless” exercise program established with
+a broker; (iii) by reduction in the number of shares of Common Stock otherwise
+deliverable upon exercise of such Option with a Fair Market Value equal to the
+aggregate Option Exercise Price at the time of exercise; (iv) by any combination
+of the foregoing methods; or (v) in any other form of legal consideration that
+may be acceptable to the Committee. Unless otherwise specifically provided in
+the Option, the exercise price of Common Stock acquired pursuant to an Option
+that is paid by delivery (or attestation) to the Company of other Common Stock
+acquired, directly or indirectly from the Company, shall be paid only by shares
+of the Common Stock of the Company that have been held for more than six months
+(or such longer or shorter period of time required to avoid a charge to earnings
+for financial accounting purposes). Notwithstanding the foregoing, during any
+period for which the Common Stock is publicly traded (i.e., the Common Stock is
+listed on any established stock exchange or a national market system) an
+exercise by a Director who is not an Independent Director or by an Officer that
+involves or may involve a direct or indirect extension of credit or arrangement
+of an extension of credit by the Company, directly or indirectly, in violation
+of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited with
+respect to any Award under the Plan.
+
+ 
+
+
+
+13
+
+ 
+
+ 
+
+6.5              Transferability of an Incentive Stock Option. An Incentive
+Stock Option shall not be transferable except by will or by the laws of descent
+and distribution and shall be exercisable during the lifetime of the
+Optionholder only by the Optionholder. Notwithstanding the foregoing, the
+Optionholder may, by delivering written notice to the Company, in a form
+satisfactory to the Company, designate a third party who, in the event of the
+death of the Optionholder, shall thereafter be entitled to exercise the Option.
+
+ 
+
+6.6              Vesting of Options. Stock Options granted under the Plan shall
+be subject to such restrictions and limitations described in the Award Agreement
+as the Committee may impose in its discretion, including vesting conditions,
+restrictions on exercise, and forfeiture provisions. In its discretion, the
+Committee may provide in the Award Agreement that some or all of such
+restrictions shall lapse upon (a) the Participant’s continued employment with
+the Company or an Affiliate for a specified period of time, (b) the occurrence
+of any one or more other events or the satisfaction of any one or more other
+conditions, as specified by the Committee, including satisfaction of performance
+criteria, a termination of Continuous Services under certain circumstances (such
+as death or Disability), or a Change in Control, or (c) a combination of any of
+the foregoing. In its discretion, the Committee shall have the authority to
+accelerate the vesting of a Stock Option at any time, in whole or in part, or
+otherwise waive or modify any such restrictions.
+
+ 
+
+6.7              Termination of Continuous Service. Unless otherwise provided in
+an Award Agreement or in an employment agreement the terms of which have been
+approved by the Committee, in the event an Optionholder’s Continuous Service
+terminates (other than upon the Optionholder’s death or Disability), the
+Optionholder may exercise his or her Option (to the extent that the Optionholder
+was entitled to exercise such Option as of the date of termination) but only
+within such period of time ending on the earlier of (a) the date three months
+following the termination of the Optionholder’s Continuous Service or (b) the
+expiration of the term of the Option as set forth in the Award Agreement;
+provided that, if the termination of Continuous Service is by the Company for
+Cause, all outstanding Options (whether or not vested) shall immediately
+terminate and cease to be exercisable. If, after termination, the Optionholder
+does not exercise his or her Option within the time specified in the Award
+Agreement, the Option shall terminate.
+
+ 
+
+
+
+14
+
+ 
+
+ 
+
+6.8              Extension of Termination Date. An Optionholder’s Award
+Agreement may also provide that if the exercise of the Option following the
+termination of the Optionholder’s Continuous Service for any reason would be
+prohibited at any time because the issuance of shares of Common Stock would
+violate the registration requirements under the Securities Act or any other
+state or federal securities law or the rules of any securities exchange or
+interdealer quotation system, then the Option shall terminate on the earlier of
+(a) the expiration of the term of the Option in accordance with Section 6.1 or
+(b) the expiration of a period after termination of the Participant’s Continuous
+Service that is three months after the end of the period during which the
+exercise of the Option would be in violation of such registration or other
+securities law requirements.
+
+ 
+
+6.9              Disability of Optionholder. Unless otherwise provided in an
+Award Agreement, in the event that an Optionholder’s Continuous Service
+terminates as a result of the Optionholder’s Disability, the Optionholder may
+exercise his or her Option (to the extent that the Optionholder was entitled to
+exercise such Option as of the date of termination), but only within the period
+of time ending on the earlier of (a) the date 12 months following such
+termination or (b) the expiration of the term of the Option as set forth in the
+Award Agreement. If, after termination, the Optionholder does not exercise his
+or her Option within the time specified herein or in the Award Agreement, the
+Option shall terminate.
+
+ 
+
+6.10          Death of Optionholder. Unless otherwise provided in an Award
+Agreement, in the event an Optionholder’s Continuous Service terminates as a
+result of the Optionholder’s death, then the Option may be exercised (to the
+extent that the Optionholder was entitled to exercise such Option as of the date
+of death) by the Optionholder’s estate, by a Person who acquired the right to
+exercise the Option by bequest or inheritance or by a Person designated to
+exercise the Option upon the Optionholder’s death, but only within the period
+ending on the earlier of (a) the date 12 months following the date of death or
+(b) the expiration of the term of such Option as set forth in the Award
+Agreement. If, after the Optionholder’s death, the Option is not exercised
+within the time specified herein or in the Award Agreement, the Option shall
+terminate.
+
+ 
+
+6.11          Incentive Stock Option $100,000 Limitation. To the extent that the
+aggregate Fair Market Value (determined at the time of grant) of Common Stock
+with respect to which Incentive Stock Options are exercisable for the first time
+by any Optionholder during any calendar year (under all plans of the Company and
+its Affiliates) exceeds $100,000, the Options or portions thereof which exceed
+such limit (according to the order in which they were granted) shall be treated
+as Non-qualified Stock Options.
+
+ 
+
+7.                  Stock Appreciation Rights. Each Stock Appreciation Right
+granted under the Plan shall be evidenced by an Award Agreement. Each Stock
+Appreciation Right so granted shall be subject to the conditions set forth in
+this Section 7, and to such other conditions not inconsistent with the Plan as
+may be reflected in the applicable Award Agreement. Stock Appreciation Rights
+may be granted alone (“Free Standing Rights”) or in tandem with an Option
+granted under the Plan (“Related Rights”).
+
+ 
+
+7.1              Grant Requirements for Related Rights.  Any Related Right that
+relates to a Non-qualified Stock Option may be granted at the same time the
+Option is granted or at any time thereafter but before the exercise or
+expiration of the Option. Any Related Right that relates to an Incentive Stock
+Option must be granted at the same time the Incentive Stock Option is granted.
+
+ 
+
+
+
+15
+
+ 
+
+ 
+
+7.2              Term. The term of a Stock Appreciation Right granted under the
+Plan shall be determined by the Committee; provided, however, no Stock
+Appreciation Right shall be exercisable later than the tenth anniversary of the
+Grant Date.
+
+ 
+
+7.3              Vesting. Stock Appreciation Rights under the Plan shall be
+subject to such restrictions and limitations set forth in the Award Agreement as
+the Committee may impose in its discretion, including vesting conditions and
+forfeiture provisions. In its discretion, the Committee may provide in the Award
+Agreement that some or all of such restrictions shall lapse upon (a) the
+Participant’s continued employment with the Company or an Affiliate for a
+specified period of time, (b) the occurrence of any one or more other events or
+the satisfaction of any one or more other conditions, as specified by the
+Committee, including satisfaction of performance criteria, a termination of
+Continuous Services under certain circumstances (such as death or Disability),
+or a Change in Control, or (c) a combination of any of the foregoing. In its
+discretion, the Committee shall have the authority to accelerate the vesting of
+a Stock Appreciation Right at any time, in whole or in part, or otherwise waive
+or modify any such restrictions.
+
+ 
+
+7.4              Exercise and Payment. Upon exercise of a Stock Appreciation
+Right, the holder shall be entitled to receive from the Company an amount equal
+to the number of shares of Common Stock subject to the Stock Appreciation Right
+that is being exercised multiplied by the excess of (i) the Fair Market Value of
+a share of Common Stock on the date the Award is exercised, over (ii) the
+exercise price specified in the Stock Appreciation Right or related Option.
+Payment with respect to the exercise of a Stock Appreciation Right shall be made
+on the date of exercise. Payment shall be made in the form of shares of Common
+Stock (with or without restrictions as to substantial risk of forfeiture and
+transferability, as determined by the Committee in its sole discretion), cash or
+a combination thereof, as determined by the Committee.
+
+ 
+
+7.5              Exercise Price. The exercise price of a Free Standing Right
+shall be determined by the Committee, but shall not be less than 100% of the
+Fair Market Value of one share of Common Stock on the Grant Date of such Stock
+Appreciation Right. A Related Right granted simultaneously with or subsequent to
+the grant of an Option and in conjunction therewith or in the alternative
+thereto shall have the same exercise price as the related Option, shall be
+transferable only upon the same terms and conditions as the related Option, and
+shall be exercisable only to the same extent as the related Option; provided,
+however, that a Stock Appreciation Right, by its terms, shall be exercisable
+only when the Fair Market Value per share of Common Stock subject to the Stock
+Appreciation Right and related Option exceeds the exercise price per share
+thereof and no Stock Appreciation Rights may be granted in tandem with an Option
+unless the Committee determines that the requirements of Section 7.1 are
+satisfied.
+
+ 
+
+7.6              Reduction in the Underlying Option Shares. Upon any exercise of
+a Related Right, the number of shares of Common Stock for which any related
+Option shall be exercisable shall be reduced by the number of shares for which
+the Stock Appreciation Right has been exercised. The number of shares of Common
+Stock for which a Related Right shall be exercisable shall be reduced upon any
+exercise of any related Option by the number of shares of Common Stock for which
+such Option has been exercised.
+
+ 
+
+
+
+16
+
+ 
+
+ 
+
+8.                  Restricted Awards. A Restricted Award is an Award of actual
+shares of Common Stock (“Restricted Stock”) or hypothetical Common Stock units
+(“Restricted Stock Units”) having a value equal to the Fair Market Value of an
+identical number of shares of Common Stock, which may, but need not, provide
+that such Restricted Award may not be sold, assigned, transferred or otherwise
+disposed of, pledged or hypothecated as collateral for a loan or as security for
+the performance of any obligation or for any other purpose for such period (the
+“Restricted Period”) as the Committee shall determine. Each Restricted Award
+granted under the Plan shall be evidenced by an Award Agreement. Each Restricted
+Award so granted shall be subject to the conditions set forth in this Section 8,
+and to such other conditions not inconsistent with the Plan as may be set forth
+in the applicable Award Agreement.
+
+ 
+
+8.1              Restricted Stock and Restricted Stock Units.
+
+ 
+
+(a)               Each Participant granted Restricted Stock shall execute and
+deliver to the Company an Award Agreement with respect to the Restricted Stock
+setting forth the restrictions and other terms and conditions applicable to such
+Restricted Stock. If the Committee determines that the Restricted Stock shall be
+held by the Company or in escrow rather than delivered to the Participant
+pending the release of the applicable restrictions, the Committee may require
+the Participant to additionally execute and deliver to the Company (A) an escrow
+agreement satisfactory to the Committee, if applicable and (B) the appropriate
+blank stock power with respect to the Restricted Stock covered by such
+agreement. If a Participant fails to execute an agreement evidencing an Award of
+Restricted Stock and, if applicable, an escrow agreement and stock power, the
+Award shall be null and void. Subject to the restrictions set forth in the
+Award, the Participant generally shall have the rights and privileges of a
+stockholder as to such Restricted Stock, including the right to vote such
+Restricted Stock and the right to receive dividends; provided that, any cash
+dividends and stock dividends with respect to the Restricted Stock shall be
+withheld by the Company for the Participant’s account, and interest may be
+credited on the amount of the cash dividends withheld at a rate and subject to
+such terms as determined by the Committee. The cash dividends or stock dividends
+so withheld by the Committee and attributable to any particular share of
+Restricted Stock (and earnings thereon, if applicable) shall be distributed to
+the Participant in cash or, at the discretion of the Committee, in shares of
+Common Stock having a Fair Market Value equal to the amount of such dividends,
+if applicable, upon the release of restrictions on such share and, if such share
+is forfeited, the Participant shall have no right to such dividends.
+
+ 
+
+(b)               The terms and conditions of a grant of Restricted Stock Units
+shall be reflected in an Award Agreement. No shares of Common Stock shall be
+issued at the time a Restricted Stock Unit is granted, and the Company will not
+be required to set aside funds for the payment of any such Award. A Participant
+shall have no voting rights with respect to any Restricted Stock Units granted
+hereunder. The Committee may also grant Restricted Stock Units with a deferral
+feature, whereby settlement is deferred beyond the vesting date until the
+occurrence of a future payment date or event set forth in an Award Agreement
+(“Deferred Stock Units”). At the discretion of the Committee, each Restricted
+Stock Unit or Deferred Stock Unit (representing one share of Common Stock) may
+be credited with an amount equal to the cash and stock dividends paid by the
+Company in respect of one share of Common Stock (“Dividend Equivalents”).
+
+ 
+
+
+
+17
+
+ 
+
+ 
+
+(c)               Dividend Equivalents shall be withheld by the Company and
+credited to the Participant’s account, and interest may be credited on the
+amount of cash Dividend Equivalents credited to the Participant’s account at a
+rate and subject to such terms as determined by the Committee. Dividend
+Equivalents credited to a Participant’s account and attributable to any
+particular Restricted Stock Unit or Deferred Stock Unit (and earnings thereon,
+if applicable) shall be distributed in cash or, at the discretion of the
+Committee, in shares of Common Stock having a Fair Market Value equal to the
+amount of such Dividend Equivalents and earnings, if applicable, to the
+Participant upon settlement of such Restricted Stock Unit or Deferred Stock Unit
+and, if such Restricted Stock Unit or Deferred Stock Unit is forfeited, the
+Participant shall have no right to such Dividend Equivalents.
+
+ 
+
+8.2              Restrictions.
+
+ 
+
+(a)               Restricted Stock awarded to a Participant shall be subject to
+the following restrictions until the expiration of the Restricted Period, and to
+such other terms and conditions as may be set forth in the applicable Award
+Agreement: (A) if an escrow arrangement is used, the Participant shall not be
+entitled to delivery of the stock certificate; (B) the shares shall be subject
+to the restrictions on transferability set forth in the Award Agreement; (C) the
+shares shall be subject to forfeiture to the extent provided in the applicable
+Award Agreement; and (D) to the extent such shares are forfeited, the stock
+certificates shall be returned to the Company, and all rights of the Participant
+to such shares and as a stockholder with respect to such shares shall terminate
+without further obligation on the part of the Company.
+
+ 
+
+(b)               Restricted Stock Units and Deferred Stock Units awarded to any
+Participant shall be subject to (A) forfeiture until the expiration of the
+Restricted Period, and satisfaction of any applicable Performance Goals during
+such period, to the extent provided in the applicable Award Agreement, and to
+the extent such Restricted Stock Units or Deferred Stock Units are forfeited,
+all rights of the Participant to such Restricted Stock Units or Deferred Stock
+Units shall terminate without further obligation on the part of the Company and
+(B) such other terms and conditions as may be set forth in the applicable Award
+Agreement.
+
+ 
+
+(c)               The Committee shall have the authority to remove any or all of
+the restrictions on the Restricted Stock, Restricted Stock Units and Deferred
+Stock Units whenever it may determine that, by reason of changes in Applicable
+Laws or other changes in circumstances arising after the date the Restricted
+Stock or Restricted Stock Units or Deferred Stock Units are granted, such action
+is appropriate.
+
+ 
+
+8.3              Restricted Period. With respect to Restricted Awards, the
+Restricted Period shall commence on the Grant Date and end at the time or times
+set forth on a schedule established by the Committee in the applicable Award
+Agreement.
+
+ 
+
+8.4              Delivery of Restricted Stock and Settlement of Restricted Stock
+Units. Upon the expiration of the Restricted Period with respect to any shares
+of Restricted Stock, the restrictions set forth in Section 8.2 and the
+applicable Award Agreement shall be of no further force or effect with respect
+to such shares, except as set forth in the applicable Award Agreement. If an
+escrow arrangement is used, upon such expiration, the Company shall deliver to
+the Participant, or his or her beneficiary, without charge, the stock
+certificate evidencing the shares of Restricted Stock which have not then been
+forfeited and with respect to which the Restricted Period has expired (to the
+nearest full share) and any cash dividends or stock dividends credited to the
+Participant’s account with respect to such Restricted Stock and the interest
+thereon, if any. Upon the expiration of the Restricted Period with respect to
+any outstanding Restricted Stock Units, or at the expiration of the deferral
+period with respect to any outstanding Deferred Stock Units, the Company shall
+deliver to the Participant, or his or her beneficiary, without charge, one share
+of Common Stock for each such outstanding vested Restricted Stock Unit or
+Deferred Stock Unit (“Vested Unit”) and cash equal to any Dividend Equivalents
+credited with respect to each such Vested Unit in accordance with Section 8.1(c)
+hereof and the interest thereon or, at the discretion of the Committee, in
+shares of Common Stock having a Fair Market Value equal to such Dividend
+Equivalents and the interest thereon, if any; provided, however, that, if
+explicitly provided in the applicable Award Agreement, the Committee may, in its
+sole discretion, elect to pay cash or part cash and part Common Stock in lieu of
+delivering only shares of Common Stock for Vested Units. If a cash payment is
+made in lieu of delivering shares of Common Stock, the amount of such payment
+shall be equal to the Fair Market Value of the Common Stock as of the date on
+which the Restricted Period lapsed in the case of Restricted Stock Units, or the
+delivery date in the case of Deferred Stock Units, with respect to each Vested
+Unit.
+
+ 
+
+8.5              Stock Restrictions. Each certificate representing Restricted
+Stock awarded under the Plan shall bear a legend in such form as the Company
+deems appropriate.
+
+ 
+
+
+
+18
+
+ 
+
+ 
+
+9.                  Performance Share Awards. Each Performance Share Award
+granted under the Plan shall be evidenced by an Award Agreement. Each
+Performance Share Award so granted shall be subject to the conditions set forth
+in this Section 9, and to such other conditions not inconsistent with the Plan
+as may be set forth in the applicable Award Agreement. The Committee shall have
+the discretion to determine: (i) the number of shares of Common Stock or
+stock-denominated units subject to a Performance Share Award granted to any
+Participant; (ii) the Performance Period applicable to any Award; (iii) the
+conditions that must be satisfied for a Participant to earn an Award; and (iv)
+the other terms, conditions and restrictions of the Award.
+
+ 
+
+9.1              Earning Performance Share Awards. The number of Performance
+Shares earned by a Participant will depend on the extent to which the
+Performance Goals established by the Committee are attained within the
+applicable Performance Period, as determined by the Committee.
+
+ 
+
+10.              Other Equity-Based Awards and Cash Awards. The Committee may
+grant Other Equity-Based Awards, either alone or in tandem with other Awards, in
+such amounts and subject to such conditions as the Committee shall determine in
+its sole discretion. Each Other Equity-Based Award shall be evidenced by an
+Award Agreement and shall be subject to such conditions, not inconsistent with
+the Plan, as may be set forth in the applicable Award Agreement. The Committee
+may grant Cash Awards in such amounts and subject to such Performance Goals,
+other vesting conditions, and such other terms as the Committee determines in
+its discretion. Cash Awards shall be evidenced in such form as the Committee may
+determine.
+
+ 
+
+
+
+19
+
+ 
+
+ 
+
+11.              Securities Law Compliance. Each Award Agreement shall provide
+that no shares of Common Stock shall be purchased or sold thereunder unless and
+until (a) any then applicable requirements of state and federal laws and
+regulatory agencies have been fully complied with to the satisfaction of the
+Company and its counsel and (b) if required to do so by the Company, the
+Participant has executed and delivered to the Company a letter of investment
+intent in such form and containing such provisions as the Committee may require.
+The Company shall use reasonable efforts to seek to obtain from each regulatory
+commission or agency having jurisdiction over the Plan such authority as may be
+required to grant Awards and to issue and sell shares of Common Stock upon
+exercise of the Awards; provided, however, that this undertaking shall not
+require the Company to register under the Securities Act the Plan, any Award or
+any Common Stock issued or issuable pursuant to any such Award. If, after
+reasonable efforts, the Company is unable to obtain from any such regulatory
+commission or agency the authority which counsel for the Company deems necessary
+for the lawful issuance and sale of Common Stock under the Plan, the Company
+shall be relieved from any liability for failure to issue and sell Common Stock
+upon exercise of such Awards unless and until such authority is obtained.
+
+ 
+
+12.              Use of Proceeds from Stock. Proceeds from the sale of Common
+Stock pursuant to Awards, or upon exercise thereof, shall constitute general
+funds of the Company.
+
+ 
+
+13.              Miscellaneous.
+
+ 
+
+13.1          Acceleration of Exercisability and Vesting. The Committee shall
+have the power to accelerate the time at which an Award may first be exercised
+or the time during which an Award or any part thereof will vest in accordance
+with the Plan, notwithstanding the provisions in the Award stating the time at
+which it may first be exercised or the time during which it will vest.
+
+ 
+
+13.2          Stockholder Rights. Except as provided in the Plan or an Award
+Agreement, no Participant shall be deemed to be the holder of, or to have any of
+the rights of a holder with respect to, any shares of Common Stock subject to
+such Award unless and until such Participant has satisfied all requirements for
+exercise of the Award pursuant to its terms and no adjustment shall be made for
+dividends (ordinary or extraordinary, whether in cash, securities or other
+property) or distributions of other rights for which the record date is prior to
+the date such Common Stock certificate is issued, except as provided in Section
+14 hereof.
+
+ 
+
+13.3          No Employment or Other Service Rights. Nothing in the Plan or any
+instrument executed or Award granted pursuant thereto shall confer upon any
+Participant any right to continue to serve the Company or an Affiliate in the
+capacity in effect at the time the Award was granted or shall affect the right
+of the Company or an Affiliate to terminate (a) the employment of an Employee
+with or without notice and with or without Cause or (b) the service of a
+Director pursuant to the By-laws of the Company or an Affiliate, and any
+applicable provisions of the corporate law of the state in which the Company or
+the Affiliate is incorporated, as the case may be.
+
+ 
+
+13.4          Transfer; Approved Leave of Absence. For purposes of the Plan, no
+termination of employment by an Employee shall be deemed to result from either
+(a) a transfer of employment to the Company from an Affiliate or from the
+Company to an Affiliate, or from one Affiliate to another, or (b) an approved
+leave of absence for military service or sickness, or for any other purpose
+approved by the Company, if the Employee’s right to reemployment is guaranteed
+either by a statute or by contract or under the policy pursuant to which the
+leave of absence was granted or if the Committee otherwise so provides in
+writing, in either case, except to the extent inconsistent with Section 409A of
+the Code if the applicable Award is subject thereto.
+
+ 
+
+
+
+20
+
+ 
+
+ 
+
+13.5          Withholding Obligations. To the extent provided by the terms of an
+Award Agreement and subject to the discretion of the Committee, the Participant
+may satisfy any federal, state or local tax withholding obligation relating to
+the exercise or acquisition of Common Stock under an Award by any of the
+following means (in addition to the Company’s right to withhold from any
+compensation paid to the Participant by the Company) or by a combination of such
+means: (a) tendering a cash payment; (b) authorizing the Company to withhold
+shares of Common Stock from the shares of Common Stock otherwise issuable to the
+Participant as a result of the exercise or acquisition of Common Stock under the
+Award, provided, however, that no shares of Common Stock are withheld with a
+value exceeding the maximum amount of tax required to be withheld by law; or (c)
+delivering to the Company previously owned and unencumbered shares of Common
+Stock of the Company.
+
+ 
+
+13.6          Permitted Transfers. Awards (other than Incentive Stock Options)
+may, in the sole discretion of the Committee, be transferable to a Permitted
+Transferee upon written approval by the Committee. Any such permitted transfer
+of Awards shall be for zero consideration.
+
+ 
+
+14.              Adjustments.
+
+ 
+
+14.1          Adjustments Upon Changes in Stock. In the event of any changes in
+the outstanding Common Stock or in the capital structure of the Company by
+reason of any dividend (other than regular cash dividends) or other distribution
+(whether in the form of cash, shares of Common Stock, other securities, or other
+property), recapitalization, stock split, reverse stock split, reorganization,
+merger, consolidation, split-up, split-off, spin-off, combination, repurchase,
+or exchange of shares of Common Stock or other securities of the Company,
+issuance of warrants or other rights to acquire shares of Common Stock or other
+securities of the Company or other relevant change in capitalization (any of the
+foregoing, an “Adjustment Event”), the Committee shall, in respect of any such
+Adjustment Event, make such proportionate substitution or adjustment, if any, as
+it deems equitable, to any or all of: (i) the Total Share Reserve, or any other
+limit applicable under the Plan with respect to the number of Awards which may
+be granted hereunder; (ii) the number of shares of Common Stock or other
+securities of the Company (or number and kind of other securities or other
+property) which may be issued in respect of Awards or with respect to which
+Awards may be granted under the Plan; and (iii) the terms of any outstanding
+Award, including, without limitation, (A) the number of shares of Common Stock
+or other securities of the Company (or number and kind of other securities or
+other property) subject to outstanding Awards or to which outstanding Awards
+relate; (B) the exercise price with respect to any Award; or (C) any applicable
+performance measures; provided, that in the case of any “equity restructuring”
+(within the meaning of the Financial Accounting Standards Board Accounting
+Standards Codification Topic 718 (or any successor pronouncement thereto)), the
+Committee shall make an equitable or proportionate adjustment to outstanding
+Awards to reflect such equity restructuring. In the case of adjustments made
+pursuant to this Section 14, unless the Committee specifically determines that
+such adjustment is in the best interests of the Company or its Affiliates, the
+Committee shall, in the case of Incentive Stock Options, ensure that any
+adjustments under this Section 14 will not constitute a modification, extension
+or renewal of the Incentive Stock Options within the meaning of Section
+424(h)(3) of the Code and in the case of Non-qualified Stock Options, ensure
+that any adjustments under this Section 14 will not constitute a modification of
+such Non-qualified Stock Options within the meaning of Section 409A of the Code.
+Any adjustments made under this Section 14 shall be made in a manner which does
+not adversely affect the exemption provided pursuant to Rule 16b-3 under the
+Exchange Act. The Company shall give each Participant notice of an adjustment
+hereunder and, upon notice, such adjustment shall be final, conclusive and
+binding for all purposes.
+
+ 
+
+
+
+21
+
+ 
+
+ 
+
+14.2          Adjustment Upon a Change in Control. Except as may otherwise be
+provided in an Award Agreement, in connection with any Change in Control, the
+Committee may, in its sole discretion, provide for any one or more of the
+following:
+
+ 
+
+(a)               substitution or assumption of Awards (or awards of an
+acquiring company);
+
+ 
+
+(b)               acceleration of the exercisability of an Award, lapse of
+restrictions on an Award, or alteration of the period of time for Participants
+to exercise outstanding Awards prior to the occurrence of a Change in Control
+(which shall be a period of at least ten days); and
+
+ 
+
+(c)               subject to any limitations or reductions as may be necessary
+to comply with Section 409A of the Code, cancellation of any one or more
+outstanding Awards and payment to the holders of such Awards of the value of
+such Awards, if any, as shall be determined by the Committee as follows:
+
+ 
+
+(i)                 in the case of an outstanding Option or Stock Appreciation
+Right, a cash payment in an amount equal to the excess, if any, of the Fair
+Market Value (as of a date specified by the Committee) of the shares of Common
+Stock subject to such Option or Stock Appreciation Right over the aggregate
+exercise price of such Option or Stock Appreciation Right (it being understood
+that, in such event, any Option or Stock Appreciation Right having a per share
+exercise price specified in the Award Agreement that is equal to, or in excess
+of the Fair Market Value of a share of Common Stock subject thereto may be
+canceled and terminated without any payment or consideration therefor), or
+
+ 
+
+(ii)              in the case of Restricted Stock, Restricted Stock Units,
+Performance Share Awards, Cash Awards or Other Equity-Based Awards that are not
+vested as of such cancellation, a cash payment or equity subject to deferred
+vesting and delivery consistent with the same vesting restrictions applicable to
+such Restricted Stock, Restricted Stock Units, Performance Share Awards, Cash
+Awards or Other Equity-Based Awards prior to cancellation, or the underlying
+shares in respect thereof, with Performance Goals with respect to each
+outstanding Performance Period, if any, that are applicable to such Awards
+deemed to be achieved at the greater of 100% of the applicable “target”
+performance levels and the performance levels actually achieved as of the date
+of such event, as determined by the Committee.
+
+ 
+
+
+
+22
+
+ 
+
+ 
+
+Payments to holders pursuant to clause (c) above shall be made in cash or, in
+the sole discretion of the Committee, in the form of shares of Common Stock, or
+such other consideration necessary for a Participant to receive property, cash,
+or securities (or combination thereof) as such Participant would have been
+entitled to receive upon the occurrence of the Change in Control if the
+Participant had been, immediately prior to such Change in Control, the holder of
+the number of shares of Common Stock covered by the Award at such time (less any
+applicable exercise price).
+
+ 
+
+14.3          Other Requirements. Prior to any payment or adjustment
+contemplated under this Section 14, the Committee may require a Participant to
+(a) represent and warrant as to the unencumbered title to the Participant’s
+Awards; (b) bear such Participant’s pro rata share of any post-closing indemnity
+obligations, and be subject to the same post-closing purchase price adjustments,
+escrow terms, offset rights, holdback terms, and similar conditions as the other
+holders of Common Stock, subject to any limitations or reductions as may be
+necessary to comply with Section 409A of the Code; and (iii) deliver customary
+transfer documentation as reasonably determined by the Committee.
+
+ 
+
+14.4          Binding Effect. Any adjustment, substitution, determination of
+value or other action taken by the Committee under this Section 14 shall be
+final, conclusive and binding for all purposes.
+
+ 
+
+15.              Amendment of the Plan and Awards.
+
+ 
+
+15.1          Amendment of Plan. The Board at any time, and from time to time,
+may amend or terminate the Plan. However, except as provided in Section 14
+relating to adjustments upon changes in Common Stock and Section 15.3, no
+amendment shall be effective unless approved by the stockholders of the Company
+to the extent stockholder approval is necessary to satisfy any Applicable Laws.
+At the time of such amendment, the Board shall determine, upon advice from
+counsel, whether such amendment will be contingent on stockholder approval.
+
+ 
+
+15.2          Stockholder Approval. The Board may, in its sole discretion,
+submit any other amendment to the Plan for stockholder approval.
+
+ 
+
+15.3          Contemplated Amendments. It is expressly contemplated that the
+Board may amend the Plan in any respect the Board deems necessary or advisable
+to provide eligible Employees, Consultants and Independent Directors with the
+maximum benefits provided or to be provided under the provisions of the Code and
+the regulations promulgated thereunder relating to Incentive Stock Options or to
+the nonqualified deferred compensation provisions of Section 409A of the Code
+and/or to bring the Plan and/or Awards granted under it into compliance
+therewith.
+
+ 
+
+15.4          No Impairment of Rights. Rights under any Award granted before
+amendment of the Plan shall not be materially impaired by any amendment of the
+Plan unless (a) the Company requests the consent of the Participant and (b) the
+Participant consents in writing.
+
+ 
+
+15.5          Amendment of Awards. The Committee at any time, and from time to
+time, may amend the terms of any one or more Awards; provided, however, that the
+Committee may not affect any amendment which would otherwise constitute an
+impairment of the rights under any Award unless (a) the Company requests the
+consent of the Participant and (b) the Participant consents in writing.
+
+ 
+
+
+
+23
+
+ 
+
+ 
+
+16.              General Provisions.
+
+ 
+
+16.1          Forfeiture Events. The Committee may specify in an Award Agreement
+that the Participant’s rights, payments and benefits with respect to an Award
+shall be subject to reduction, cancellation, forfeiture or recoupment upon the
+occurrence of certain events, in addition to applicable vesting conditions of an
+Award. Such events may include, without limitation, breach of non-competition,
+non-solicitation, confidentiality, or other restrictive covenants that are
+contained in the Award Agreement or otherwise applicable to the Participant, a
+termination of the Participant’s Continuous Service for Cause, or other conduct
+by the Participant that is detrimental to the business or reputation of the
+Company and/or its Affiliates.
+
+ 
+
+16.2          Clawback. Notwithstanding any other provisions in this Plan, the
+Company may cancel any Award, require reimbursement of any Award by a
+Participant, and effect any other right of recoupment of equity or other
+compensation provided under the Plan in connection with the following: (a) any
+material noncompliance with any financial reporting requirement under the
+securities Laws that requires the Company to file a restatement of its financial
+statements; (b) any action by a Participant that constitutes Cause; and (c) any
+Company policies that may be adopted and/or modified from time to time. In
+addition, a Participant may be required to repay to the Company previously paid
+compensation, whether provided pursuant to the Plan or an Award Agreement, in
+accordance with the Plan. By accepting an Award, the Participant is agreeing to
+be bound by this Section 16.2, as in effect or as may be adopted and/or modified
+from time to time by the Company in its discretion (including, without
+limitation, to comply with Applicable Law).
+
+ 
+
+16.3          Other Compensation Arrangements. Nothing contained in the Plan
+shall prevent the Board from adopting other or additional compensation
+arrangements, subject to stockholder approval if such approval is required; and
+such arrangements may be either generally applicable or applicable only in
+specific cases.
+
+ 
+
+16.4          Sub-Plans. The Committee may from time to time establish sub-plans
+under the Plan for purposes of satisfying securities, tax or other laws of
+various jurisdictions in which the Company intends to grant Awards. Any
+sub-plans shall contain such limitations and other terms and conditions as the
+Committee determines are necessary or desirable. All sub-plans shall be deemed a
+part of the Plan, but each sub-plan shall apply only to the Participants in the
+jurisdiction for which the sub-plan was designed.
+
+ 
+
+16.5          Deferral of Awards. The Committee may establish one or more
+programs under the Plan to permit selected Participants the opportunity to elect
+to defer receipt of consideration upon exercise of an Award, satisfaction of
+performance criteria, or other event that absent the election would entitle the
+Participant to payment or receipt of shares of Common Stock or other
+consideration under an Award. The Committee may establish the election
+procedures, the timing of such elections, the mechanisms for payments of, and
+accrual of interest or other earnings, if any, on amounts, shares or other
+consideration so deferred, and such other terms, conditions, rules and
+procedures that the Committee deems advisable for the administration of any such
+deferral program.
+
+ 
+
+16.6          Unfunded Plan. The Plan shall be unfunded. Neither the Company,
+the Board nor the Committee shall be required to establish any special or
+separate fund or to segregate any assets to assure the performance of its
+obligations under the Plan.
+
+ 
+
+
+
+24
+
+ 
+
+ 
+
+16.7          Delivery. Upon exercise of a right granted under the Plan, the
+Company shall issue Common Stock or pay any amounts due within a reasonable
+period of time thereafter. Subject to any statutory or regulatory obligations
+the Company may otherwise have, for purposes of the Plan, 30 days shall be
+considered a reasonable period of time.
+
+ 
+
+16.8          No Fractional Shares. No fractional shares of Common Stock shall
+be issued or delivered pursuant to the Plan, including pursuant to any
+adjustment under Section 14. The Committee shall determine whether cash,
+additional Awards or other securities or property shall be issued or paid in
+lieu of fractional shares of Common Stock or whether any fractional shares
+should be rounded, forfeited or otherwise eliminated.
+
+ 
+
+16.9          Other Provisions. The Award Agreements authorized under the Plan
+may contain such other provisions not inconsistent with the Plan, including,
+without limitation, restrictions upon the exercise of Awards, as the Committee
+may deem advisable.
+
+ 
+
+16.10      Section 409A. The Plan is intended to comply with Section 409A of the
+Code to the extent subject thereto, and, accordingly, to the maximum extent
+permitted, the Plan shall be interpreted and administered to be in compliance
+therewith. Any payments described in the Plan that are due within the
+“short-term deferral period” as defined in Section 409A of the Code shall not be
+treated as deferred compensation unless Applicable Laws require otherwise.
+Notwithstanding anything to the contrary in the Plan, to the extent required to
+avoid accelerated taxation and tax penalties under Section 409A of the Code,
+amounts that would otherwise be payable and benefits that would otherwise be
+provided pursuant to the Plan during the six (6) month period immediately
+following the Participant’s termination of Continuous Service shall instead be
+paid on the first payroll date after the six-month anniversary of the
+Participant’s separation from service (or the Participant’s death, if earlier).
+Notwithstanding the foregoing, neither the Company nor the Committee shall have
+any obligation to take any action to prevent the assessment of any additional
+tax or penalty on any Participant under Section 409A of the Code and neither the
+Company nor the Committee will have any liability to any Participant for such
+tax or penalty.
+
+ 
+
+16.11      Disqualifying Dispositions. Any Participant who shall make a
+“disposition” (as defined in Section 424 of the Code) of all or any portion of
+shares of Common Stock acquired upon exercise of an Incentive Stock Option
+within two years from the Grant Date of such Incentive Stock Option or within
+one year after the issuance of the shares of Common Stock acquired upon exercise
+of such Incentive Stock Option (a “Disqualifying Disposition”) shall be required
+to immediately advise the Company in writing as to the occurrence of the sale
+and the price realized upon the sale of such shares of Common Stock.
+
+ 
+
+16.12      Section 16. It is the intent of the Company that the Plan satisfy,
+and be interpreted in a manner that satisfies, the applicable requirements of
+Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that
+Participants will be entitled to the benefit of Rule 16b-3, or any other rule
+promulgated under Section 16 of the Exchange Act, and will not be subject to
+short-swing liability under Section 16 of the Exchange Act. Accordingly, if the
+operation of any provision of the Plan would conflict with the intent expressed
+in this Section 16.12, such provision to the extent possible shall be
+interpreted and/or deemed amended so as to avoid such conflict.
+
+ 
+
+
+
+25
+
+ 
+
+ 
+
+16.13      Beneficiary Designation. Each Participant under the Plan may from
+time to time name any beneficiary or beneficiaries by whom any right under the
+Plan is to be exercised in case of such Participant’s death. Each designation
+will revoke all prior designations by the same Participant, shall be in a form
+reasonably prescribed by the Committee and shall be effective only when filed by
+the Participant in writing with the Company during the Participant’s lifetime.
+
+ 
+
+16.14      Expenses. The costs of administering the Plan shall be paid by the
+Company.
+
+ 
+
+16.15      Severability. If any of the provisions of the Plan or any Award
+Agreement is held to be invalid, illegal or unenforceable, whether in whole or
+in part, such provision shall be deemed modified to the extent, but only to the
+extent, of such invalidity, illegality or unenforceability and the remaining
+provisions shall not be affected thereby.
+
+ 
+
+16.16      Plan Headings. The headings in the Plan are for purposes of
+convenience only and are not intended to define or limit the construction of the
+provisions hereof.
+
+ 
+
+16.17      Non-Uniform Treatment. The Committee’s determinations under the Plan
+need not be uniform and may be made by it selectively among Persons who are
+eligible to receive, or actually receive, Awards. Without limiting the
+generality of the foregoing, the Committee shall be entitled to make non-uniform
+and selective determinations, amendments and adjustments, and to enter into
+non-uniform and selective Award Agreements.
+
+ 
+
+17.              Effective Date of Plan. The Plan shall become effective as of
+the Effective Date.
+
+ 
+
+18.              Termination or Suspension of the Plan. The Plan shall terminate
+automatically on August 28, 2030. No Award shall be granted pursuant to the Plan
+after such date, but Awards theretofore granted may extend beyond that date. The
+Board may suspend or terminate the Plan at any earlier date pursuant to Section
+15.1 hereof. No Awards may be granted under the Plan while the Plan is suspended
+or after it is terminated.
+
+ 
+
+19.              Choice of Law. The law of the State of Delaware shall govern
+(a) all claims or matters related to or arising from the Plan (including any
+tort or non-contractual claims) and (b) any questions concerning the
+construction, interpretation, validity and enforcement of the Plan, without
+giving effect to any choice-of-law or conflict-of-law rules or provisions
+(whether of the State of Delaware or any other jurisdiction) that would cause
+the application of the Law of any jurisdiction other than the State of Delaware.
+
+ 
+
+As adopted by the Board of Directors of Utz Brands, Inc. on June 4, 2020.
+
+ 
+
+As approved by the stockholders of Utz Brands, Inc. on August 27, 2020.
+
+ 
+
+
+
+26
+
+ 
+
+
+
+ 
+
+Exhibit C
+
+Form of Initial Option Grant
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Exhibit C
+
+ 
+
+Stock Option Agreement
+
+ 
+
+This Stock Option Agreement (this “Agreement”) is made and entered into as of
+August 29, 2020 by and between Utz Brands, Inc., a Delaware corporation (the
+“Company”) and Dylan B. Lissette (the “Participant”).
+
+ 
+
+Grant Date:
+
+ 
+
+Exercise Price per Share:
+
+ 
+
+Number of Option Shares:
+
+ 
+
+Expiration Date:
+
+ 
+
+1.             Grant of Option.
+
+ 
+
+1.1              Grant; Type of Option. The Company hereby grants to the
+Participant an option (the “Option”) to purchase the total number of shares of
+Common Stock of the Company equal to the number of Option Shares set forth
+above, at the Exercise Price set forth above. The Option is being granted
+pursuant to the terms of the Utz Brands, Inc. 2020 Omnibus Equity Incentive
+Plan, as then amended (the “Plan”). The Option is not intended to be an
+“incentive stock option” within the meaning of Section 422 of the Code.
+
+ 
+
+1.2              Consideration; Subject to Plan. The grant of the Option is made
+in consideration of the services to be rendered by the Participant to the
+Company and is subject to the terms and conditions of the Plan. Capitalized
+terms used but not defined herein have the meanings ascribed to them in the
+Plan.
+
+ 
+
+2.             Exercise Period; Vesting.
+
+ 
+
+2.1              Vesting Schedule. The Option will become vested and exercisable
+with respect to 50% of the total number of Option Shares on December 31, 2022,
+and with respect to an additional 50% of the total number of Option Shares on
+December 31, 2023. The unvested portion of the Option will not be exercisable
+after the Participant’s termination of Continuous Service.
+
+ 
+
+2.2              Expiration. The Option will expire on the Expiration Date set
+forth above, or earlier as provided in this Agreement or the Plan.
+
+ 
+
+3.             Termination of Continuous Service.
+
+ 
+
+3.1              Termination for Reasons Other Than Cause, Death, Disability. If
+the Participant’s Continuous Service is terminated for any reason other than
+Cause, death or Disability, the Participant may exercise the vested portion of
+the Option, but only within such period of time ending on the earlier of: (a)
+the date three months following the termination of the Participant’s Continuous
+Service or (b) the Expiration Date.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+3.2              Termination for Cause. If the Participant’s Continuous Service
+is terminated for Cause, the Option (whether vested or unvested) shall
+immediately terminate and cease to be exercisable.
+
+ 
+
+3.3              Termination due to Disability. If the Participant’s Continuous
+Service terminates as a result of the Participant’s Disability, the Participant
+may exercise the vested portion of the Option, but only within such period of
+time ending on the earlier of: (a) the date 12 months following the
+Participant’s termination of Continuous Service or (b) the Expiration Date.
+
+ 
+
+3.4              Termination due to Death. If the Participant’s Continuous
+Service terminates as a result of the Participant’s death, the vested portion of
+the Option may be exercised by the Participant’s estate, by a Person who
+acquired the right to exercise the Option by bequest or inheritance or by the
+Person designated to exercise the Option upon the Participant’s death, but only
+within the time period ending on the earlier of: (a) the date 12 months
+following the Participant’s termination of Continuous Service or (b) the
+Expiration Date.
+
+ 
+
+3.5              Extension of Termination Date. If following the Participant’s
+termination of Continuous Service for any reason the exercise of the Option is
+prohibited because the exercise of the Option would violate the registration
+requirements under the Securities Act or any other state or federal securities
+law or the rules of any securities exchange or interdealer quotation system,
+then the expiration of the Option shall be tolled until the date that is thirty
+(30) days after the end of the period during which the exercise of the Option
+would be in violation of such registration or other securities requirements.
+
+ 
+
+4.             Manner of Exercise.
+
+ 
+
+4.1              Election to Exercise. To exercise the portion of the Option
+which is vested and exercisable, the Participant (or in the case of exercise
+after the Participant’s death or incapacity, the Participant’s executor,
+administrator, heir or legatee, as the case may be) must deliver written notice
+of exercise in a form and in accordance with procedures approved by the
+Committee or the Board in accordance with Section 3 of the Plan, and the notice
+of exercise shall be accompanied by payment of the Exercise Price.
+
+ 
+
+4.2              Payment of Exercise Price. The entire Exercise Price of the
+Option shall be payable, to the extent permitted by Applicable Laws, as follows:
+(a) in cash (including check, bank draft, money order or wire transfer of
+immediately available funds), (b) by delivery of outstanding shares of Common
+Stock, duly endorsed for transfer to the Company, with a Fair Market Value on
+the date of delivery equal to the aggregate Exercise Price payable with respect
+to the Option’s exercise, (c) by means of any cashless exercise procedures
+established with a broker and approved by the Committee and as may be in effect
+on the date of exercise, (d) by any combination of the foregoing, in each case
+in accordance with the terms and conditions of the Plan or (e) in any other form
+of legal consideration that may be acceptable to the Committee or the Board as
+the administrator of the Plan in accordance with Section 3 thereof.
+
+ 
+
+
+
+2
+
+ 
+
+ 
+
+4.3        ��     Withholding. If the Company, in its discretion, determines that
+it is obligated to withhold any tax in connection with the exercise of the
+Option, the Participant must make arrangements satisfactory to the Company to
+pay or provide for any applicable federal, state and local withholding
+obligations of the Company. The Committee may permit the Participant to satisfy
+any federal, state or local tax withholding obligation relating to the exercise
+of the Option by any of the following means, or by a combination of such means,
+to the extent permitted by Applicable Laws:
+
+ 
+
+(a)                 tendering a cash payment;
+
+ 
+
+(b)               authorizing the Company to withhold shares of Common Stock
+from the shares of Common Stock otherwise issuable to the Participant as a
+result of the exercise of the Option; provided, however, that no shares of
+Common Stock shall be withheld with a value exceeding the maximum amount of tax
+required to be withheld by law;
+
+ 
+
+(c)               delivery of a properly executed notice of exercise together
+with irrevocable instructions to a broker registered under the Exchange Act to
+promptly deliver to the Company the amount of proceeds required to pay the
+Exercise Price; or
+
+ 
+
+(d)               delivering to the Company previously owned and unencumbered
+shares of Common Stock.
+
+ 
+
+The Company has the right to withhold from any compensation paid to a
+Participant.
+
+ 
+
+4.4              Issuance of Shares. Provided that the notice of exercise and
+payment are in form and substance satisfactory to the Committee or the Board in
+accordance with Section 3 of the Plan, the Company shall issue the shares of
+Common Stock registered in the name of the Participant, the Participant’s
+authorized assignee, or the Participant’s legal representative which shall be
+evidenced by stock certificates representing the shares with the appropriate
+legends affixed thereto, appropriate entry on the books of the Company or of a
+duly authorized transfer agent, or other appropriate means as determined by the
+Company.
+
+ 
+
+5.             No Right to Continued Service; No Rights as Stockholder. Neither
+the Plan nor this Agreement shall confer upon the Participant any right to be
+retained in any position, as an Employee, Consultant or Director of the Company.
+Further, nothing in the Plan or this Agreement shall be construed to limit the
+discretion of the Company to terminate the Participant’s Continuous Service at
+any time, with or without Cause. The Participant shall not have any rights as a
+stockholder with respect to any shares of Common Stock subject to the Option
+unless and until certificates representing the shares have been issued by the
+Company to the holder of such shares, or the shares have otherwise been recorded
+on the books of the Company or of a duly authorized transfer agent as owned by
+such holder.
+
+ 
+
+6.             Transferability. The Option may be transferred to a Permitted
+Transferee upon written approval by the Committee.
+
+ 
+
+
+
+3
+
+ 
+
+ 
+
+7.             Change in Control.
+
+ 
+
+7.1              Acceleration of Vesting. In the event the Participant’s
+Continuous Service is terminated by the Company without Cause (other than due to
+the Participant’s death or Disability) or by the Participant for Good Reason (as
+defined in the Utz Brands, Inc. Executive Change in Control Severance Plan), in
+each case within two (2) years following a Change in Control, then,
+notwithstanding any provision of the Plan or this Agreement to the contrary, the
+Option shall become immediately vested and exercisable with respect to 100% of
+the shares subject to the Option. To the extent practicable, such acceleration
+of vesting and exercisability shall occur in a manner and at a time which allows
+the Participant the ability to participate in the Change in Control with respect
+to the shares of Common Stock received.
+
+ 
+
+7.2              Cash-out. In the event of a Change in Control, the Committee
+may, in its discretion and upon at least ten (10) days’ advance notice to the
+Participant, cancel the Option and pay to the Participant the value of the
+Option in accordance with the Plan. Notwithstanding the foregoing, if at the
+time of a Change in Control the Exercise Price of the Option equals or exceeds
+the price paid for a share of Common Stock in connection with the Change in
+Control, the Committee may cancel the Option without the payment of
+consideration therefor.
+
+ 
+
+8.             Adjustments. The shares of Common Stock subject to the Option may
+be adjusted or terminated in any manner as contemplated by Section 14 of the
+Plan.
+
+ 
+
+9.             Tax Liability and Withholding. Notwithstanding any action the
+Company takes with respect to any or all income tax, social insurance, payroll
+tax, or other tax-related withholding (“Tax-Related Items”), the ultimate
+liability for all Tax-Related Items is and remains the Participant’s
+responsibility and the Company (a) makes no representation or undertakings
+regarding the treatment of any Tax-Related Items in connection with the grant,
+vesting, or exercise of the Option or the subsequent sale of any shares acquired
+on exercise; and (b) does not commit to structure the Option to reduce or
+eliminate the Participant’s liability for Tax-Related Items.
+
+ 
+
+10.         Restrictive Covenants.
+
+ 
+
+10.1          Non-Disclosure of Confidential Information.
+
+ 
+
+(a)               The term “Confidential Information,” as used in this
+Agreement, shall mean any and all information (in whatever form and whether or
+not expressly designated as confidential) relating directly or indirectly to the
+respective businesses, operations, financial affairs, assets or technology of
+the Company and any of its subsidiaries (collectively, the “Companies”)
+including, but not limited to, marketing and financial information, personnel,
+sales and statistical data, plans for future development, computer programs,
+information and knowledge pertaining to the products and services offered,
+inventions, innovations, designs, ideas, recipes, formulas, manufacturing
+processes, trade secrets, technical data, computer source codes, software,
+proprietary information, construction, advertising, manufacturing, distribution
+and sales methods and systems, pricing, sales and profit figures, customer and
+client lists, and relationships with customers, clients, suppliers, distributors
+and others who have business dealings with any of the Companies and information
+with respect to various ingredients, formulas, manufacturing processes,
+techniques, procedures, processes and methods. Confidential Information also
+includes information received by the Participant from third parties in
+connection with the Participant’s employment by any of the Companies subject to
+an obligation to maintain the confidentiality of such information. Confidential
+Information does not include information which (a) becomes generally known to
+and available for use by the public other than as a result of Participant’s
+violation of this Agreement; (b) is or becomes generally available within the
+relevant business or industry other than as a result of Participant’s violation
+of this Agreement; or (c) is or becomes available to Participant on a
+non-confidential basis from a source other than the Companies, which source is
+not known by Participant, after reasonable inquiry, to be subject to a
+contractual or fiduciary obligation of secrecy to the Companies.
+
+ 
+
+
+
+4
+
+ 
+
+ 
+
+(b)               The Participant acknowledges and agrees that all Confidential
+Information known or obtained by the Participant, whether before or after the
+Grant Date and regardless of whether the Participant participated in the
+discovery or development of such Confidential Information, is the property of
+the Company. Except as expressly authorized in writing by the Company or as
+necessary to perform the Participant’s services while an employee of the
+Company, the Participant agrees that the Participant will not, during or after
+the Participant’s employment with any of the Companies, for any reason, directly
+or indirectly, duplicate, use, make available, sell, misappropriate, exploit,
+remove, copy or disclose to any Person Confidential Information, unless such
+information is required to be produced by the Participant under order of a court
+of competent jurisdiction or a valid administrative or congressional subpoena;
+provided, however, that upon receipt of any such order or subpoena, the
+Participant shall promptly notify the Company and shall provide the Company with
+an opportunity at its cost and expense to contest the propriety of such order or
+subpoena or restrict or condition the disclosure of such Confidential
+Information or to arrange for appropriate safeguards against any further
+disclosure by the court or administrative or other body seeking to compel
+disclosure of such Confidential Information.
+
+ 
+
+10.2          Assignment of Inventions.
+
+ 
+
+(a)               The Participant acknowledges and agrees that all ideas,
+methods, inventions, discoveries, improvements, work products, developments,
+software, know-how, processes, techniques, works of authorship and other work
+product, whether patentable or unpatentable, (i) that are reduced to practice,
+created, invented, designed, developed, contributed to, or improved with the use
+of any of the Companies’ resources and/or within the scope of the Participant’s
+duties to the Companies or that relate to the business, operations or actual or
+demonstrably anticipated research or development of the Companies, and that are
+made or conceived by the Participant, solely or jointly with others, during the
+Participant’s employment by any of the Companies; or (ii) suggested by any work
+that the Participant performs in connection with any of the Companies, either
+while performing the Participant’s duties to the Companies or on the
+Participant’s own time, will belong exclusively to the Companies (or their
+designees), whether or not patent or other applications for intellectual
+property protection are filed thereon (the “Inventions”). The Participant will
+keep full and complete written records (the “Records”), in the manner prescribed
+by the Companies, of all Inventions, and will promptly disclose all Inventions
+completely and in writing to the Companies. The Records are the sole and
+exclusive property of the Companies, and the Participant will surrender them
+upon termination of employment, or upon any of the Companies’ request. The
+Participant irrevocably conveys, transfers and assigns to the Companies the
+Inventions and all patents or other intellectual property rights that may issue
+thereon in any and all countries, whether during or subsequent to the
+Participant’s employment by any of the Companies, together with the right to
+file, in the Participant’s name or in the name of any of the Companies (or their
+designees), applications for patents and equivalent rights (the “Applications”).
+The Participant will, at any time during and subsequent to employment by or
+service to any of the Companies, make such applications, sign such papers, take
+all rightful oaths, and perform all other acts as may be requested from time to
+time by any of the Companies to perfect, record, enforce, protect, patent or
+register the Companies’ rights in the Inventions, all without additional
+compensation to the Participant from the Companies. The Participant will also
+execute assignments to the Companies (or their designees) of the Applications,
+and give the Companies and their attorneys all reasonable assistance (including
+the giving of testimony) to obtain the Inventions for the Companies’ benefit.
+
+ 
+
+
+
+5
+
+ 
+
+ 
+
+(b)               In addition, the Inventions are deemed Work for Hire, as such
+term is defined under the copyright laws of the United States, on behalf of the
+Companies, and the Participant agrees that the Companies are the sole owners of
+the Inventions and all underlying rights therein, in all media now known or
+hereinafter devised, throughout the universe and in perpetuity without any
+further obligations to the Participant. If the Inventions, or any portion
+thereof, are deemed not to be Work for Hire, or the rights in such Inventions do
+not otherwise automatically vest in the Companies, the Participant hereby
+irrevocably conveys, transfers and assigns to the Companies all rights, in all
+media now known or hereinafter devised, throughout the universe and in
+perpetuity, in and to the Inventions, including, without limitation, all of the
+Participant’s right, title and interest in the copyrights (and all renewals,
+revivals and extensions thereof) to the Inventions, including, without
+limitation, all rights of any kind or any nature now or hereafter recognized,
+including, without limitation, the unrestricted right to make modifications,
+adaptations and revisions to the Inventions, to exploit and allow others to
+exploit the Inventions and all rights to sue at law or in equity for any
+infringement, or other unauthorized use or conduct in derogation of the
+Inventions, known or unknown, before the date hereof, including, without
+limitation, the right to receive all proceeds and damages therefrom. In
+addition, the Participant hereby waives any so-called “moral rights” with
+respect to the Inventions. To the extent that the Participant has any rights in
+the results and proceeds of the Participant’s service to the Companies that
+cannot be assigned in the manner described herein, the Participant agrees to
+unconditionally waive the enforcement of such rights. The Participant hereby
+waives any and all currently existing and future monetary rights in and to the
+Inventions and all patents and other registrations for intellectual property
+that may issue thereon, including, without limitation, any rights that would
+otherwise accrue to the Participant’s benefit by virtue of the Participant being
+an employee of or other service provider to any of the Companies.
+
+ 
+
+
+
+6
+
+ 
+
+ 
+
+10.3          Return of Companies’ Property and Companies’ Information. The
+Participant agrees to return, promptly following the termination of the
+Participant’s employment with any of the Companies, or earlier if directed by
+any of the Companies, any and all of the Companies’ property in the
+Participant’s possession, as well as any and all records, files, correspondence,
+reports and computer disks relating to any of the Companies’ operations,
+products and potential products, marketing, research and development, production
+and general business plans, customer information, accounting and financial
+information, distribution, sales, and confidential cost and price
+characteristics and policies in the Participant’s possession (including on any
+personal computer).
+
+ 
+
+10.4          Nothing in this Agreement is intended to conflict with the
+whistleblower provisions of any United States federal, state or local law or
+regulation, including but not limited to Rule 21F-17 of the Securities Exchange
+Act of 1934 or § 1833(b) of the Defend Trade Secrets Act of 2016. Accordingly,
+notwithstanding anything to the contrary herein, nothing in this Agreement shall
+prohibit the Participant from reporting possible violations of United States
+federal, state or local law or regulation to any United States federal, state or
+local governmental agency or entity, including but not limited to the Department
+of Justice, the Securities and Exchange Commission, the Congress, and any agency
+Inspector General, or to an attorney, or from making other disclosures that are
+protected under the whistleblower provisions of federal law or regulation, or
+from disclosing trade secrets and other confidential information in the course
+of such reporting; provided, that the Participant uses the Participant’s
+reasonable best efforts to (a) disclose only information that is reasonably
+related to such possible violations or that is requested by such agency or
+entity and (b) requests that such agency or entity treat such information as
+confidential. The Participant does not need the prior authorization from the
+Company to make any such reports or disclosures and is not required to notify
+the Company that it has made such reports or disclosures. In addition, the
+Participant has the right to disclose trade secrets and other confidential
+information in a document filed in a lawsuit or other proceeding; provided, that
+the filing is made under seal and protected from public disclosure.
+
+ 
+
+10.5          In consideration of the Option, the Participant agrees and
+covenants not to:
+
+ 
+
+(a)               During the entire period of the Participant’s employment with
+any of the Companies and for the longer of (A) the Restriction Period (as
+defined in the Utz Brands, Inc. Executive Change in Control Severance Plan)
+applicable to the Participant, if any, and (B) a period of six (6) months
+following the termination of the Participant’s employment for any reason, the
+Participant shall not, directly or indirectly, for the Participant’s own
+account, or on behalf of, or together with, any other Person (other than on
+behalf of the Companies) anywhere in any state of the United States or the
+District of Columbia:
+
+ 
+
+(i)                 own, manage, operate, control, finance or participate in the
+ownership, management, operation, control or financing of, render financial
+assistance to, be connected as an officer, director, stockholder, employee,
+partner, member, manager, principal, agent, representative, consultant or
+otherwise with, use or permit the Participant’s name to be used in connection
+with, or develop products or services for, any Competing Business. “Competing
+Business” means any business which is engaged in the development, manufacture,
+distribution, marketing or sale of snack foods; notwithstanding the foregoing,
+it shall not be a breach of this Section 10.5(a)(i) for the Participant to own a
+passive investment of less than one percent (1%) of a class of stock of a
+publicly held company that is traded on a national securities exchange or in the
+over the counter market;
+
+ 
+
+
+
+7
+
+ 
+
+ 
+
+(ii)              contact, solicit, induce or attempt to contact, solicit or
+induce any Person who is or was, within the one-year period prior to termination
+of the Participant’s employment with the Companies, a customer, supplier or
+agent of any of the Companies or with which any of the Companies or the
+Participant had contact during the Participant’s employment with any of the
+Companies, to terminate their relationship with any of the Companies, or do any
+act which may interfere with or result in the impairment of the relationship,
+including any reduction in sales or purchases, between any of the Companies and
+such customers, suppliers or agents; or
+
+ 
+
+(iii)            hire any Person who is or was, within the one-year period prior
+to termination of the Participant’s employment with any of the Companies, an
+employee of any of the Companies; or contact, solicit, induce or attempt to
+contact, solicit or induce any Person who is or was, within the one-year period
+prior to termination of the Participant’s employment with the Companies, an
+employee of any of the Companies for the purpose of seeking to have such Person
+terminate his or her employment or engagement with any of the Companies.
+
+ 
+
+(b)               The Participant will not, at any time, make any statement that
+is intended to disparage (i) any of the Companies or any of their businesses,
+products, services, directors or officers or (ii) Michael Rice, the spouse and
+lineal descendants (whether natural or adopted) of Michael Rice or any spouse of
+any lineal descendants of Michael Rice.
+
+ 
+
+10.6          Acknowledgments by the Participant. The Participant acknowledges
+and agrees that: (a) the Participant has occupied or will occupy a position of
+trust and confidence with the Companies and has or will become familiar with
+Confidential Information; (b) the Confidential Information is of unique, very
+substantial and immeasurable value to the Companies; (c) the Company has
+required that the Participant make the covenants set forth in this Section 10 as
+a condition to the execution by the Company of this Agreement; (d) the
+provisions of this Section 10 are reasonable with respect to duration,
+geographic area and scope and necessary to protect and preserve the goodwill and
+ongoing business value of the Companies, and will not, individually or in the
+aggregate, prevent the Participant from obtaining other suitable employment
+during the period in which the Participant is bound by such provisions; (e) the
+scope of the business of the Companies is independent of location (such that it
+is not practical to limit the restrictions contained in this Section 10 to a
+specified county, city or part thereof); (f) the Companies would be irreparably
+damaged if the Participant were to breach the covenants set forth in this
+Section 10; and (g) the potential benefits to the Participant available under
+this Agreement are sufficient to compensate the Participant fully and adequately
+for agreeing to the terms and restrictions of this Agreement.
+
+ 
+
+
+
+8
+
+ 
+
+ 
+
+10.7          If a court holds that the duration, scope, or area restrictions
+stated herein are unreasonable, the parties agree that the court shall be
+allowed and directed to revise the restrictions to cover the maximum reasonable
+period, scope and area permitted by law.
+
+ 
+
+10.8          If the Committee determines in good faith that the Participant has
+breached or threatened to breach any of the covenants contained in this Section
+10:
+
+ 
+
+(a)               any unvested or vested but unexercised portion of the Option
+shall be immediately forfeited effective as of the date of such breach, unless
+sooner terminated by operation of another term or condition of this Agreement or
+the Plan, and the Participant shall deliver to the Company (or take all steps
+necessary to effectuate the delivery of), no later than five (5) days following
+such determination, any shares of Common Stock issued upon the exercise of the
+Participant’s Option and any proceeds resulting from the sale or other
+disposition (including to the Company) of shares of Common Stock issued upon
+exercise of the Participant’s Option; and
+
+ 
+
+(b)               the Participant hereby consents and agrees that the Company
+shall be entitled to seek, in addition to other available remedies, a temporary
+or permanent injunction or other equitable relief against such breach or
+threatened breach from any court of competent jurisdiction, without the
+necessity of showing any actual damages or that money damages would not afford
+an adequate remedy, and without the necessity of posting any bond or other
+security. The aforementioned equitable relief shall be in addition to, not in
+lieu of, legal remedies, monetary damages or other available forms of relief.
+Each of the Companies not party to this Agreement is intended to be third-party
+beneficiaries of the provisions of this Section 10, and such provisions may be
+enforced by each of them in accordance with the terms hereof in respect of the
+rights granted to each such entity hereunder.
+
+ 
+
+11.         Compliance with Law. The exercise of the Option and the issuance and
+transfer of shares of Common Stock shall be subject to compliance by the Company
+and the Participant with all applicable requirements of federal and state
+securities laws and with all applicable requirements of any stock exchange on
+which the Company’s shares of Common Stock may be listed. No shares of Common
+Stock shall be issued or transferred pursuant to this Option unless and until
+any then applicable requirements of state and federal laws and regulatory
+agencies have been fully complied with to the satisfaction of the Company and
+its counsel.
+
+ 
+
+12.         Notices. All notices, demands and other communications to be given
+or delivered under this Agreement shall be in writing and shall be deemed to
+have been given (a) when personally delivered (or, if delivery is refused, upon
+presentment) or received by email (with confirmation of transmission) prior to
+5:00 p.m. eastern time on a business day and, if otherwise, on the next business
+day, (b) one (1) business day following sending by reputable overnight express
+courier (charges prepaid), or (c) three (3) days following mailing by certified
+or registered mail, postage prepaid and return receipt requested. Unless another
+address is specified in writing pursuant to the provisions of this Section 12,
+notices, demands and other communications shall be sent to the addresses
+indicated below:
+
+ 
+
+
+
+9
+
+ 
+
+ 
+
+If to the Company:
+
+ 
+
+If to the Participant:
+
+ 
+
+13.         Governing Law Jurisdiction; Costs. The law of the State of Delaware
+shall govern (a) all claims or matters related to or arising from this Agreement
+(including any tort or non-contractual claims) and (b) any questions concerning
+the construction, interpretation, validity and enforcement of this Agreement,
+without giving effect to any choice-of-law or conflict-of-law rules or
+provisions (whether of the State of Delaware or any other jurisdiction) that
+would cause the application of the Law of any jurisdiction other than the State
+of Delaware. The Participant hereby agrees to submit to personal jurisdiction of
+said courts, and waives any right to challenge venue or claim that it is an
+inconvenient forum. The Participant will reimburse the Company for all court
+costs and reasonable attorneys’ fees incurred in connection with any action the
+Company brings for a breach or threatened breach by the Participant of any
+covenants contained in this Agreement if (i) the Participant challenges the
+reasonableness or enforceability of such covenants or (ii) the Company is the
+prevailing party in such action.
+
+ 
+
+14.         Interpretation. Any dispute regarding the interpretation of this
+Agreement shall be submitted by the Participant or the Company to the Committee
+for review. The resolution of such dispute by the Committee shall be final and
+binding on the Participant and the Company.
+
+ 
+
+15.         Options Subject to Plan. This Agreement is subject to the Plan as
+approved by the Company’s stockholders. The terms and provisions of the Plan as
+it may be amended from time to time are hereby incorporated herein by reference.
+In the event of a conflict between any term or provision contained herein and a
+term or provision of the Plan, the applicable terms and provisions of the Plan
+will govern and prevail.
+
+ 
+
+16.         Successors and Assigns. The Company may assign any of its rights
+under this Agreement. This Agreement and all of the provisions hereof shall be
+binding upon and inure to the benefit of the Company and its successors and
+assigns. Subject to the restrictions on transfer set forth herein, this
+Agreement will be binding upon the Participant and the Participant’s
+beneficiaries, executors, administrators and the Person(s) to whom the Option
+may be transferred by will or the laws of descent or distribution.
+
+ 
+
+17.         Severability. Whenever possible, each provision of this Agreement
+shall be interpreted in such manner as to be effective and valid under
+applicable Law, but if any provision of this Agreement or the application of any
+such provision to any Person or circumstance shall be held to be prohibited by
+or invalid, illegal or unenforceable under applicable Law in any respect by a
+court of competent jurisdiction, such provision shall be ineffective only to the
+extent of such prohibition or invalidity, illegality or unenforceability,
+without invalidating the remainder of such provision or the remaining provisions
+of this Agreement. Furthermore, in lieu of such illegal, invalid or
+unenforceable provision, there shall be added automatically as a part of this
+Agreement a legal, valid and enforceable provision as similar in terms to such
+illegal, invalid, or unenforceable provision as may be possible.
+
+ 
+
+
+
+10
+
+ 
+
+ 
+
+18.         Discretionary Nature of Plan. The Plan is discretionary and may be
+amended, cancelled or terminated by the Company at any time, in its discretion.
+The grant of the Option in this Agreement does not create any contractual right
+or other right to receive any Options or other Awards in the future. Future
+Awards, if any, will be at the sole discretion of the Company. Any amendment,
+modification, or termination of the Plan shall not constitute a change or
+impairment of the terms and conditions of the Participant's employment with the
+Company.
+
+ 
+
+19.         Amendment. The Committee has the right to amend, alter, suspend,
+discontinue or cancel the Option, prospectively or retroactively; provided,
+that, no such amendment shall adversely affect the Participant’s material rights
+under this Agreement without the Participant’s consent. The failure of the
+Company or Committee to enforce at any time any provision of this Agreement will
+in no way be construed to be a waiver of such provision or of any other
+provision hereof.
+
+ 
+
+20.         Section 409A. This Agreement is intended to comply with Section 409A
+of the Code or an exemption thereunder and shall be construed and interpreted in
+a manner that is consistent with the requirements for avoiding additional taxes
+or penalties under Section 409A of the Code. Notwithstanding the foregoing, the
+Company makes no representations that the payments and benefits provided under
+this Agreement comply with Section 409A of the Code and in no event shall the
+Company be liable for all or any portion of any taxes, penalties, interest or
+other expenses that may be incurred by the Participant on account of
+non-compliance with Section 409A of the Code.
+
+ 
+
+21.         No Impact on Other Benefits. The value of the Participant’s Option
+is not part of his or her normal or expected compensation for purposes of
+calculating any severance, retirement, welfare, insurance or similar employee
+benefit.
+
+ 
+
+22.         Data Privacy. The Participant expressly authorizes and consents to
+the collection, possession, use, retention and transfer of personal data of the
+Participant, whether in electronic or other form, by and among Company, its
+Affiliates, third-party administrator(s) and other possible recipients, in each
+case for the exclusive purpose of implementing, administering, facilitating
+and/or managing the Participant’s Awards under, and participation in, the Plan.
+Such personal data may include, without limitation, the Participant’s name, home
+address and telephone number, date of birth, Social Security Number, social
+insurance number or other identification number, salary, job title and other
+job-related information, tax information, the number of Company shares held or
+sold by the Participant, and the details of all Awards (including any
+information contained in this Award and all Award-related materials) granted to
+the Participant, whether exercised, unexercised, vested, unvested, cancelled or
+outstanding (“Data”). The Participant acknowledges, understands and agrees that
+Data may be transferred to third parties, which will assist the Company with the
+implementation, administration and management of the Plan.
+
+ 
+
+23.         Counterparts. This Agreement may be executed and delivered in one or
+more counterparts and by fax, email or other electronic transmission, each of
+which shall be deemed an original and all of which shall be considered one and
+the same agreement. No party shall raise the use of a fax machine or email to
+deliver a signature or the fact that any signature or agreement or instrument
+was transmitted or communicated through the use of a fax machine or email as a
+defense to the formation or enforceability of this Agreement and each party
+forever waives any such defense.
+
+ 
+
+
+
+11
+
+ 
+
+ 
+
+24.         Acceptance. The Participant hereby acknowledges receipt of a copy of
+the Plan and this Agreement. The Participant has read and understands the terms
+and provisions thereof, and accepts the Option subject to all of the terms and
+conditions of the Plan and this Agreement. The Participant acknowledges that
+there may be adverse tax consequences upon exercise of the Option or disposition
+of the underlying shares and that the Participant has been advised to consult a
+tax advisor prior to such exercise or disposition.
+
+ 
+
+25.         Complete Agreement. This Agreement and the Plan and the other
+documents referred to herein and therein embody the complete agreement and
+understanding among the parties and supersede and preempt any prior
+understandings, agreements or representations by or among the parties, written
+or oral, which may have related to the subject matter hereof in any way.
+
+ 
+
+26.         No Strict Construction. The language used in this Agreement shall be
+deemed to be the language chosen by the parties hereto to express their mutual
+intent, and no rule of strict construction shall be applied against any party.
+
+ 
+
+* * * * *
+
+ 
+
+
+
+12
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
+as of the date first above written.
+
+ 
+
+  UTZ BRANDS, INC.       By:           Name: Roger Deromedi   Title: Chairman  
+          DYLAN B. LISSETTE
+
+ 
+
+
+
+13
+
+ 
+
+ 
+
+ 
+
+Exhibit D
+
+Form of Initial PSU Grant
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Exhibit D
+
+ 
+
+Performance Share Unit Agreement
+
+ 
+
+This Performance Share Unit Award Agreement (this “Agreement”) is made and
+entered into as of (the “Grant Date”) by and between Utz Brands, Inc., a
+Delaware corporation (the “Company”) and Dylan B. Lissette (the “Participant”).
+
+ 
+
+1.          Grant of Performance Share Units.
+
+ 
+
+1.1           Grant. The Company hereby grants to the Participant an Award for a
+target number of Performance Share Units (“PSUs”, and such award, the “Target
+Award”). The PSUs are being granted pursuant to the terms of the Utz Brands,
+Inc. 2020 Omnibus Equity Incentive Plan, as then amended (the “Plan”). Each PSU
+represents the right to receive one share of Common Stock, subject to the terms
+and conditions set forth in this Agreement and the Plan. The number of PSUs that
+the Participant actually earns for the applicable Performance Period (up to a
+maximum of                     1 in aggregate) will be determined by the level
+of achievement of the Performance Goal(s) in accordance with Exhibit A attached
+hereto.
+
+ 
+
+1.2           Consideration; Subject to Plan. The grant of the PSUs is made in
+consideration of the services to be rendered by the Participant to the Company
+and is subject to the terms and conditions of the Plan. Capitalized terms used
+but not defined herein have the meanings ascribed to them in the Plan.
+
+ 
+
+2.          Performance Period. For purposes of this Agreement, the term
+“Performance Period” shall be the period commencing on the Grant Date, and (a)
+ending on December 31, 2022 for 50% of the PSUs and (b) ending on December 31,
+2023 for the remaining 50% of the PSUs, as applicable.
+
+ 
+
+3.          Performance Goals.
+
+ 
+
+3.1           The number of PSUs earned by the Participant for a Performance
+Period will be determined at the end of the Performance Period based on the
+level of achievement of the Performance Goal(s) in accordance with Exhibit A.
+All determinations of whether Performance Goal(s) have been achieved, the number
+of PSUs earned by the Participant, and all other matters related to this Section
+3 shall be made by the Committee in its sole discretion.
+
+ 
+
+3.2           Promptly following completion of a Performance Period (and no
+later than thirty (30) days following the end of the Performance Period), the
+Committee will review and certify in writing (a) whether, and to what extent,
+the Performance Goal(s) for the Performance Period have been achieved, and (b)
+the number of PSUs that the Participant shall earn, if any, subject to
+compliance with the requirements of Section 4. Such certification shall be
+final, conclusive and binding on the Participant, and on all other Persons, to
+the maximum extent permitted by law.
+
+ 
+
+
+
+ 
+
+ 
+
+1 NTD: To be 200% of Target Award.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+4.          Vesting of PSUs. The PSUs are subject to forfeiture until they vest.
+Except as otherwise provided herein, the PSUs will vest and become
+nonforfeitable on the last day of the applicable Performance Period subject to
+(a) the achievement of the minimum threshold Performance Goal(s) for payout set
+forth in Exhibit A attached hereto, and (b) the Participant’s Continuous Service
+from the Grant Date through the last day of the applicable Performance Period.
+The number of PSUs that vest and become payable under this Agreement shall be
+determined by the Committee based on the level of achievement of the Performance
+Goal(s) set forth in Exhibit A attached hereto and shall be rounded to the
+nearest whole PSU.
+
+ 
+
+5.          Termination of Continuous Service.
+
+ 
+
+5.1          Except as otherwise expressly provided in this Agreement, if the
+Participant’s Continuous Service terminates for any reason at any time before
+all of his or her PSUs have vested, the Participant’s unvested PSUs shall be
+automatically forfeited upon such termination of Continuous Service and neither
+the Company nor any Affiliate shall have any further obligations to the
+Participant under this Agreement.
+
+ 
+
+5.2           Notwithstanding Section 5.1, if the Participant’s Continuous
+Service terminates during a Performance Period as a result of the Participant’s
+death, Disability or termination by the Company without Cause, the target number
+of PSUs granted hereunder shall be prorated and then remain eligible to vest in
+accordance with Section 4 subject to achievement of the Performance Goal(s) as
+if the Participant’s Continuous Service had not terminated, with such pro ration
+based on the number of days in the Performance Period prior to the Termination
+Date relative to the number of the days in the full Performance Period.
+
+ 
+
+6.          Effect of a Change in Control. Notwithstanding anything to the
+contrary, if there is a Change in Control during a Performance Period, then on
+the effective date of the Change in Control, the applicable Performance Period
+shall be deemed to have ended as of such date and the Committee shall determine
+the number of PSUs that performance vest as of such date based on the level of
+achievement of the Performance Goal(s) as of such date, with the price paid per
+share of Common Stock in connection with such Change in Control deemed to be the
+Ending Price. Following the Change in Control, the PSUs will continue to time
+vest and become nonforfeitable on the last day of the original Performance
+Period subject only to the Participant’s Continuous Service through the last day
+of such original Performance Period; provided that, the PSUs shall immediately
+vest in the event the Participant’s Continuous Service is terminated by the
+Company without Cause (other than due to the Participant’s death or Disability)
+or by the Participant for Good Reason (as defined in the Utz Brands, Inc.
+Executive Change in Control Severance Plan), in each case, within two (2) years
+following a Change in Control.
+
+ 
+
+7.          Payment of PSUs. Payment in respect of the PSUs earned for a
+Performance Period shall be made in shares of Common Stock and shall be issued
+to the Participant as soon as practicable following the vesting date and in any
+event within sixty (60) days following the vesting date. The Company shall (a)
+issue and deliver to the Participant the number of shares of Common Stock equal
+to the number of vested PSUs, and (b) enter the Participant’s name on the books
+of the Company as the stockholder of record with respect to the shares of Common
+Stock delivered to the Participant.
+
+ 
+
+
+
+2
+
+ 
+
+ 
+
+8.          Transferability. Subject to any exceptions set forth in this
+Agreement or the Plan, the PSUs or the rights relating thereto may not be
+assigned, alienated, pledged, attached, sold or otherwise transferred or
+encumbered by the Participant, except by will or the laws of descent and
+distribution, and upon any such transfer by will or the laws of descent and
+distribution, the transferee shall hold such PSUs subject to all of the terms
+and conditions that were applicable to the Participant immediately prior to such
+transfer.
+
+ 
+
+9.          Rights as Stockholder; Dividend Equivalents.
+
+ 
+
+9.1           The Participant shall not have any rights of a stockholder with
+respect to the shares of Common Stock underlying the PSUs, including, but not
+limited to, voting rights.
+
+ 
+
+9.2           As of any date that the Company pays an ordinary cash dividend on
+its shares of Common Stock, the Participant will be credited by the Company with
+a Dividend Equivalent, which entitles the Participant to a dividend equivalent
+payment equal to the amount of such dividends per share of Common Stock subject
+to the number of PSUs held by Participant under this Agreement, which Dividend
+Equivalent shall be paid in cash (or if elected by the Committee in its sole
+discretion, in shares of Common Stock having a Fair Market Value as of the
+settlement date equal to the amount of such dividends), at the same time as the
+underlying PSUs are settled following vesting of such PSUs. Any such Dividend
+Equivalents shall be subject to the same vesting, forfeiture, payment,
+termination and other terms, conditions and restrictions as the PSUs to which
+they relate; provided that, the Dividend Equivalents will vest at the same
+percentage (not to exceed 100%) that the related PSUs vest. For the sake of
+clarity, if the related PSUs vest (A) at 50% of target, 50% of the Dividend
+Equivalents credited with respect to such PSUs will vest, or (B) at 200% of
+target, 100% of the Dividend Equivalents credited with respect to such PSUs will
+vest. No Dividend Equivalents shall be granted with respect to any PSUs which,
+as of the record date, have either been paid or terminated.
+
+ 
+
+9.3           Upon and following the vesting of the PSUs and the issuance of
+shares, the Participant shall be the record owner of the shares of Common Stock
+underlying the PSUs unless and until such shares are sold or otherwise disposed
+of, and as record owner shall be entitled to all rights of a stockholder of the
+Company (including voting and dividend rights).
+
+ 
+
+10.        No Right to Continued Service. Neither the Plan nor this Agreement
+shall confer upon the Participant any right to be retained in any position, as
+an Employee, Consultant or Director of the Company. Further, nothing in the Plan
+or this Agreement shall be construed to limit the discretion of the Company to
+terminate the Participant’s Continuous Service at any time, with or without
+Cause.
+
+ 
+
+11.        Adjustments. The PSUs shall be adjusted or terminated in any manner
+as contemplated by Section 14 of the Plan.
+
+ 
+
+
+
+3
+
+ 
+
+ 
+
+12.        Tax Liability and Withholding.
+
+ 
+
+12.1         The Participant shall be required to pay to the Company, and the
+Company shall have the right to deduct from any compensation paid to the
+Participant pursuant to the Plan, the amount of any required withholding taxes
+in respect of the PSUs and to take all such other action as the Committee deems
+necessary to satisfy all obligations for the payment of such withholding taxes.
+The Committee may permit the Participant to satisfy any federal, state or local
+tax withholding obligation by any of the following means, or by a combination of
+such means, to the extent permitted by Applicable Laws:
+
+ 
+
+(a)             tendering a cash payment;
+
+ 
+
+(b)            authorizing the Company to withhold shares of Common Stock from
+the shares of Common Stock otherwise issuable or deliverable to the Participant
+as a result of the settlement of the PSUs; provided, however, that no shares of
+Common Stock shall be withheld with a value exceeding the maximum amount of tax
+required to be withheld by law;
+
+ 
+
+(c)             delivery of a properly executed notice of settlement together
+with irrevocable instructions to a broker registered under the Exchange Act to
+promptly deliver to the Company the required tax withholding amount; or
+
+ 
+
+(d)            delivering to the Company previously owned and unencumbered
+shares of Common Stock.
+
+ 
+
+The Company has the right to withhold from any compensation paid to a
+Participant.
+
+ 
+
+12.2         Notwithstanding any action the Company takes with respect to any or
+all income tax, social insurance, payroll tax, or other tax-related withholding
+(“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and
+remains the Participant’s responsibility and the Company (a) makes no
+representation or undertakings regarding the treatment of any Tax-Related Items
+in connection with the grant, vesting, or settlement of the PSUs or the
+subsequent sale of any shares; and (b) does not commit to structure the PSUs to
+reduce or eliminate the Participant’s liability for Tax-Related Items.
+
+ 
+
+13.        Restrictive Covenants.
+
+ 
+
+13.1         Non-Disclosure of Confidential Information.
+
+ 
+
+(a)            The term “Confidential Information,” as used in this Agreement,
+shall mean any and all information (in whatever form and whether or not
+expressly designated as confidential) relating directly or indirectly to the
+respective businesses, operations, financial affairs, assets or technology of
+the Company and any of its subsidiaries (collectively, the “Companies”)
+including, but not limited to, marketing and financial information, personnel,
+sales and statistical data, plans for future development, computer programs,
+information and knowledge pertaining to the products and services offered,
+inventions, innovations, designs, ideas, recipes, formulas, manufacturing
+processes, trade secrets, technical data, computer source codes, software,
+proprietary information, construction, advertising, manufacturing, distribution
+and sales methods and systems, pricing, sales and profit figures, customer and
+client lists, and relationships with customers, clients, suppliers, distributors
+and others who have business dealings with any of the Companies and information
+with respect to various ingredients, formulas, manufacturing processes,
+techniques, procedures, processes and methods. Confidential Information also
+includes information received by the Participant from third parties in
+connection with the Participant’s employment by any of the Companies subject to
+an obligation to maintain the confidentiality of such information. Confidential
+Information does not include information which (a) becomes generally known to
+and available for use by the public other than as a result of the Participant’s
+violation of this Agreement; (b) is or becomes generally available within the
+relevant business or industry other than as a result of the Participant’s
+violation of this Agreement; or (c) is or becomes available to the Participant
+on a non-confidential basis from a source other than the Companies, which source
+is not known by the Participant, after reasonable inquiry, to be subject to a
+contractual or fiduciary obligation of secrecy to the Companies.
+
+ 
+
+
+
+4
+
+ 
+
+ 
+
+(b)            The Participant acknowledges and agrees that all Confidential
+Information known or obtained by the Participant, whether before or after the
+Grant Date and regardless of whether the Participant participated in the
+discovery or development of such Confidential Information, is the property of
+the Company. Except as expressly authorized in writing by the Company or as
+necessary to perform the Participant’s services while an employee of the
+Company, the Participant agrees that the Participant will not, during or after
+the Participant’s employment with any of the Companies, for any reason, directly
+or indirectly, duplicate, use, make available, sell, misappropriate, exploit,
+remove, copy or disclose to any Person Confidential Information, unless such
+information is required to be produced by the Participant under order of a court
+of competent jurisdiction or a valid administrative or congressional subpoena;
+provided, however, that upon receipt of any such order or subpoena, the
+Participant shall promptly notify the Company and shall provide the Company with
+an opportunity at its cost and expense to contest the propriety of such order or
+subpoena or restrict or condition the disclosure of such Confidential
+Information or to arrange for appropriate safeguards against any further
+disclosure by the court or administrative or other body seeking to compel
+disclosure of such Confidential Information.
+
+ 
+
+13.2             Assignment of Inventions.
+
+ 
+
+(a)             The Participant acknowledges and agrees that all ideas, methods,
+inventions, discoveries, improvements, work products, developments, software,
+know-how, processes, techniques, works of authorship and other work product,
+whether patentable or unpatentable, (i) that are reduced to practice, created,
+invented, designed, developed, contributed to, or improved with the use of any
+of the Companies’ resources and/or within the scope of the Participant’s duties
+to the Companies or that relate to the business, operations or actual or
+demonstrably anticipated research or development of the Companies, and that are
+made or conceived by the Participant, solely or jointly with others, during the
+Participant’s employment by any of the Companies; or (ii) suggested by any work
+that the Participant performs in connection with any of the Companies, either
+while performing the Participant’s duties to the Companies or on the
+Participant’s own time, will belong exclusively to the Companies (or their
+designees), whether or not patent or other applications for intellectual
+property protection are filed thereon (the “Inventions”). The Participant will
+keep full and complete written records (the “Records”), in the manner prescribed
+by the Companies, of all Inventions, and will promptly disclose all Inventions
+completely and in writing to the Companies. The Records are the sole and
+exclusive property of the Companies, and the Participant will surrender them
+upon termination of employment, or upon any of the Companies’ request. The
+Participant irrevocably conveys, transfers and assigns to the Companies the
+Inventions and all patents or other intellectual property rights that may issue
+thereon in any and all countries, whether during or subsequent to the
+Participant’s employment by any of the Companies, together with the right to
+file, in the Participant’s name or in the name of any of the Companies (or their
+designees), applications for patents and equivalent rights (the “Applications”).
+The Participant will, at any time during and subsequent to employment by or
+service to any of the Companies, make such applications, sign such papers, take
+all rightful oaths, and perform all other acts as may be requested from time to
+time by any of the Companies to perfect, record, enforce, protect, patent or
+register the Companies’ rights in the Inventions, all without additional
+compensation to the Participant from the Companies. The Participant will also
+execute assignments to the Companies (or their designees) of the Applications,
+and give the Companies and their attorneys all reasonable assistance (including
+the giving of testimony) to obtain the Inventions for the Companies’ benefit.
+
+ 
+
+
+
+5
+
+ 
+
+ 
+
+(b)            In addition, the Inventions are deemed Work for Hire, as such
+term is defined under the copyright laws of the United States, on behalf of the
+Companies, and the Participant agrees that the Companies are the sole owners of
+the Inventions and all underlying rights therein, in all media now known or
+hereinafter devised, throughout the universe and in perpetuity without any
+further obligations to the Participant. If the Inventions, or any portion
+thereof, are deemed not to be Work for Hire, or the rights in such Inventions do
+not otherwise automatically vest in the Companies, the Participant hereby
+irrevocably conveys, transfers and assigns to the Companies all rights, in all
+media now known or hereinafter devised, throughout the universe and in
+perpetuity, in and to the Inventions, including, without limitation, all of the
+Participant’s right, title and interest in the copyrights (and all renewals,
+revivals and extensions thereof) to the Inventions, including, without
+limitation, all rights of any kind or any nature now or hereafter recognized,
+including, without limitation, the unrestricted right to make modifications,
+adaptations and revisions to the Inventions, to exploit and allow others to
+exploit the Inventions and all rights to sue at law or in equity for any
+infringement, or other unauthorized use or conduct in derogation of the
+Inventions, known or unknown, before the date hereof, including, without
+limitation, the right to receive all proceeds and damages therefrom. In
+addition, the Participant hereby waives any so-called “moral rights” with
+respect to the Inventions. To the extent that the Participant has any rights in
+the results and proceeds of the Participant’s service to the Companies that
+cannot be assigned in the manner described herein, the Participant agrees to
+unconditionally waive the enforcement of such rights. The Participant hereby
+waives any and all currently existing and future monetary rights in and to the
+Inventions and all patents and other registrations for intellectual property
+that may issue thereon, including, without limitation, any rights that would
+otherwise accrue to the Participant’s benefit by virtue of the Participant being
+an employee of or other service provider to any of the Companies.
+
+ 
+
+13.3         Return of Companies’ Property and Companies’ Information. The
+Participant agrees to return, promptly following the termination of the
+Participant’s employment with any of the Companies, or earlier if directed by
+any of the Companies, any and all of the Companies’ property in the
+Participant’s possession, as well as any and all records, files, correspondence,
+reports and computer disks relating to any of the Companies’ operations,
+products and potential products, marketing, research and development, production
+and general business plans, customer information, accounting and financial
+information, distribution, sales, and confidential cost and price
+characteristics and policies in the Participant’s possession (including on any
+personal computer).
+
+ 
+
+
+
+6
+
+ 
+
+ 
+
+13.4         Nothing in this Agreement is intended to conflict with the
+whistleblower provisions of any United States federal, state or local law or
+regulation, including but not limited to Rule 21F-17 of the Securities Exchange
+Act of 1934 or § 1833(b) of the Defend Trade Secrets Act of 2016. Accordingly,
+notwithstanding anything to the contrary herein, nothing in this Agreement shall
+prohibit the Participant from reporting possible violations of United States
+federal, state or local law or regulation to any United States federal, state or
+local governmental agency or entity, including but not limited to the Department
+of Justice, the Securities and Exchange Commission, the Congress, and any agency
+Inspector General, or to an attorney, or from making other disclosures that are
+protected under the whistleblower provisions of federal law or regulation, or
+from disclosing trade secrets and other confidential information in the course
+of such reporting; provided, that the Participant uses the Participant’s
+reasonable best efforts to (a) disclose only information that is reasonably
+related to such possible violations or that is requested by such agency or
+entity and (b) requests that such agency or entity treat such information as
+confidential. The Participant does not need the prior authorization from the
+Company to make any such reports or disclosures and is not required to notify
+the Company that it has made such reports or disclosures. In addition, the
+Participant has the right to disclose trade secrets and other confidential
+information in a document filed in a lawsuit or other proceeding; provided, that
+the filing is made under seal and protected from public disclosure.
+
+ 
+
+13.5         In consideration of the PSUs, the Participant agrees and covenants
+not to:
+
+ 
+
+(a)             During the entire period of the Participant’s employment with
+any of the Companies and for the longer of (A) the Restriction Period (as
+defined in the Utz Brands, Inc. Executive Change in Control Severance Plan)
+applicable to the Participant, if any, and (B) a period of six (6) months
+following the termination of the Participant’s employment for any reason, the
+Participant shall not, directly or indirectly, for the Participant’s own
+account, or on behalf of, or together with, any other Person (other than on
+behalf of the Companies) anywhere in any state of the United States or the
+District of Columbia:
+
+ 
+
+
+
+7
+
+ 
+
+ 
+
+(i)            own, manage, operate, control, finance or participate in the
+ownership, management, operation, control or financing of, render financial
+assistance to, be connected as an officer, director, stockholder, employee,
+partner, member, manager, principal, agent, representative, consultant or
+otherwise with, use or permit the Participant’s name to be used in connection
+with, or develop products or services for, any Competing Business. “Competing
+Business” means any business which is engaged in the development, manufacture,
+distribution, marketing or sale of snack foods; notwithstanding the foregoing,
+it shall not be a breach of this Section 13.5(a)(i) for the Participant to own a
+passive investment of less than one percent (1%) of a class of stock of a
+publicly held company that is traded on a national securities exchange or in the
+over the counter market;
+
+ 
+
+(ii)           contact, solicit, induce or attempt to contact, solicit or induce
+any Person who is or was, within the one-year period prior to termination of the
+Participant’s employment with the Companies, a customer, supplier or agent of
+any of the Companies or with which any of the Companies or the Participant had
+contact during the Participant’s employment with any of the Companies, to
+terminate their relationship with any of the Companies, or do any act which may
+interfere with or result in the impairment of the relationship, including any
+reduction in sales or purchases, between any of the Companies and such
+customers, suppliers or agents; or
+
+ 
+
+(iii)          hire any Person who is or was, within the one-year period prior
+to termination of the Participant’s employment with any of the Companies, an
+employee of any of the Companies; or contact, solicit, induce or attempt to
+contact, solicit or induce any Person who is or was, within the one-year period
+prior to termination of the Participant’s employment with the Companies, an
+employee of any of the Companies for the purpose of seeking to have such Person
+terminate his or her employment or engagement with any of the Companies.
+
+ 
+
+(b)            The Participant will not, at any time, make any statement that is
+intended to disparage (i) any of the Companies or any of their respective
+businesses, products, services, directors or officers or (ii) Michael Rice, the
+spouse and lineal descendants (whether natural or adopted) of Michael Rice or
+any spouse of any lineal descendants of Michael Rice.
+
+ 
+
+13.6         Acknowledgments by the Participant. The Participant acknowledges
+and agrees that: (a) the Participant has occupied or will occupy a position of
+trust and confidence with the Companies and has or will become familiar with
+Confidential Information (b) the Confidential Information is of unique, very
+substantial and immeasurable value to the Companies; (c) the Company has
+required that the Participant make the covenants set forth in this Section 13 as
+a condition to the execution by the Company of this Agreement; (d) the
+provisions of this Section 13 are reasonable with respect to duration,
+geographic area and scope and necessary to protect and preserve the goodwill and
+ongoing business value of the Companies, and will not, individually or in the
+aggregate, prevent the Participant from obtaining other suitable employment
+during the period in which the Participant is bound by such provisions; (e) the
+scope of the business of the Companies is independent of location (such that it
+is not practical to limit the restrictions contained in this Section 13 to a
+specified county, city or part thereof); (f) the Companies would be irreparably
+damaged if the Participant were to breach the covenants set forth in this
+Section 13; and (g) the potential benefits to the Participant available under
+this Agreement are sufficient to compensate the Participant fully and adequately
+for agreeing to the terms and restrictions of this Agreement.
+
+ 
+
+
+
+8
+
+ 
+
+ 
+
+13.7         If a court holds that the duration, scope, or area restrictions
+stated herein are unreasonable, the parties agree that the court shall be
+allowed and directed to revise the restrictions to cover the maximum reasonable
+period, scope and area permitted by law.
+
+ 
+
+13.8         If the Committee determines in good faith that the Participant has
+breached or threatened to breach any of the covenants contained in this Section
+13:
+
+ 
+
+(a)            any unvested or vested but unsettled PSUs shall be immediately
+forfeited effective as of the date of such breach, unless sooner terminated by
+operation of another term or condition of this Agreement or the Plan, and the
+Participant shall deliver to the Company (or take all steps necessary to
+effectuate the delivery of), no later than five (5) days following such
+determination, any shares of Common Stock issued upon the settlement of the
+Participant’s PSUs and any proceeds resulting from the sale or other disposition
+(including to the Company) of shares of Common Stock issued upon settlement of
+the Participant’s PSUs; and
+
+ 
+
+(b)            the Participant hereby consents and agrees that the Company shall
+be entitled to seek, in addition to other available remedies, a temporary or
+permanent injunction or other equitable relief against such breach or threatened
+breach from any court of competent jurisdiction, without the necessity of
+showing any actual damages or that money damages would not afford an adequate
+remedy, and without the necessity of posting any bond or other security. The
+aforementioned equitable relief shall be in addition to, not in lieu of, legal
+remedies, monetary damages or other available forms of relief. Each of the
+Companies not party to this Agreement is intended to be third-party
+beneficiaries of the provisions of this Section 13, and such provisions may be
+enforced by each of them in accordance with the terms hereof in respect of the
+rights granted to each such entity hereunder.
+
+ 
+
+14.        Compliance with Law. The issuance and transfer of shares of Common
+Stock in connection with the PSUs shall be subject to compliance by the Company
+and the Participant with all applicable requirements of federal and state
+securities laws and with all applicable requirements of any stock exchange on
+which the Company’s shares of Common Stock may be listed. No shares of Common
+Stock shall be issued or transferred unless and until any then applicable
+requirements of state and federal laws and regulatory agencies have been fully
+complied with to the satisfaction of the Company and its counsel.
+
+ 
+
+15.        Notices. All notices, demands and other communications to be given or
+delivered under this Agreement shall be in writing and shall be deemed to have
+been given (a) when personally delivered (or, if delivery is refused, upon
+presentment) or received by email (with confirmation of transmission) prior to
+5:00 p.m. eastern time on a business day and, if otherwise, on the next business
+day, (b) one (1) business day following sending by reputable overnight express
+courier (charges prepaid), or (c) three (3) days following mailing by certified
+or registered mail, postage prepaid and return receipt requested. Unless another
+address is specified in writing pursuant to the provisions of this Section 15,
+notices, demands and other communications shall be sent to the addresses
+indicated below:
+
+ 
+
+
+
+9
+
+ 
+
+ 
+
+If to the Company:
+
+ 
+
+If to the Participant:
+
+ 
+
+16.        Governing Law; Jurisdiction; Costs. The law of the State of Delaware
+shall govern (a) all claims or matters related to or arising from this Agreement
+(including any tort or non-contractual claims) and (b) any questions concerning
+the construction, interpretation, validity and enforcement of this Agreement,
+without giving effect to any choice-of-law or conflict-of-law rules or
+provisions (whether of the State of Delaware or any other jurisdiction) that
+would cause the application of the Law of any jurisdiction other than the State
+of Delaware. The Participant hereby agrees to submit to personal jurisdiction of
+said courts, and waives any right to challenge venue or claim that it is an
+inconvenient forum. The Participant will reimburse the Company for all court
+costs and reasonable attorneys’ fees incurred in connection with any action the
+Company brings for a breach or threatened breach by the Participant of any
+covenants contained in this Agreement if (i) the Participant challenges the
+reasonableness or enforceability of such covenants or (ii) the Company is the
+prevailing party in such action.
+
+ 
+
+17.        Interpretation. Any dispute regarding the interpretation of this
+Agreement shall be submitted by the Participant or the Company to the Committee
+for review. The resolution of such dispute by the Committee shall be final and
+binding on the Participant and the Company.
+
+ 
+
+18.        PSUs Subject to Plan. This Agreement is subject to the Plan as
+approved by the Company’s stockholders. The terms and provisions of the Plan as
+it may be amended from time to time are hereby incorporated herein by reference.
+In the event of a conflict between any term or provision contained herein and a
+term or provision of the Plan, the applicable terms and provisions of the Plan
+will govern and prevail.
+
+ 
+
+19.        Successors and Assigns. The Company may assign any of its rights
+under this Agreement. This Agreement and all of the provisions hereof shall be
+binding upon and inure to the benefit of the Company and its successors and
+assigns. Subject to the restrictions on transfer set forth herein, this
+Agreement will be binding upon the Participant and the Participant’s
+beneficiaries, executors, administrators and the Person(s) to whom the PSUs may
+be transferred by will or the laws of descent or distribution.
+
+ 
+
+20.        Severability. Whenever possible, each provision of this Agreement
+shall be interpreted in such manner as to be effective and valid under
+applicable Law, but if any provision of this Agreement or the application of any
+such provision to any Person or circumstance shall be held to be prohibited by
+or invalid, illegal or unenforceable under applicable Law in any respect by a
+court of competent jurisdiction, such provision shall be ineffective only to the
+extent of such prohibition or invalidity, illegality or unenforceability,
+without invalidating the remainder of such provision or the remaining provisions
+of this Agreement. Furthermore, in lieu of such illegal, invalid or
+unenforceable provision, there shall be added automatically as a part of this
+Agreement a legal, valid and enforceable provision as similar in terms to such
+illegal, invalid, or unenforceable provision as may be possible.
+
+ 
+
+
+
+10
+
+ 
+
+ 
+
+21.        Discretionary Nature of Plan. The Plan is discretionary and may be
+amended, cancelled or terminated by the Company at any time, in its discretion.
+The grant of the PSUs in this Agreement does not create any contractual right or
+other right to receive any PSUs or other Awards in the future. Future Awards, if
+any, will be at the sole discretion of the Company. Any amendment, modification,
+or termination of the Plan shall not constitute a change or impairment of the
+terms and conditions of the Participant’s employment with the Company.
+
+ 
+
+22.        Amendment. The Committee has the right to amend, alter, suspend,
+discontinue or cancel the PSUs, prospectively or retroactively; provided, that,
+no such amendment shall adversely affect the Participant’s material rights under
+this Agreement without the Participant’s consent. The failure of the Company or
+Committee to enforce at any time any provision of this Agreement will in no way
+be construed to be a waiver of such provision or of any other provision hereof.
+
+ 
+
+23.        Section 409A. This Agreement is intended to comply with Section 409A
+of the Code or an exemption thereunder and shall be construed and interpreted in
+a manner that is consistent with the requirements for avoiding additional taxes
+or penalties under Section 409A of the Code. Notwithstanding the foregoing, the
+Company makes no representations that the payments and benefits provided under
+this Agreement comply with Section 409A of the Code and in no event shall the
+Company be liable for all or any portion of any taxes, penalties, interest or
+other expenses that may be incurred by the Participant on account of
+non-compliance with Section 409A of the Code.
+
+ 
+
+24.        No Impact on Other Benefits. The value of the Participant’s PSUs is
+not part of his or her normal or expected compensation for purposes of
+calculating any severance, retirement, welfare, insurance or similar employee
+benefit.
+
+ 
+
+25.        Data Privacy. The Participant expressly authorizes and consents to
+the collection, possession, use, retention and transfer of personal data of the
+Participant, whether in electronic or other form, by and among Company, its
+Affiliates, third-party administrator(s) and other possible recipients, in each
+case for the exclusive purpose of implementing, administering, facilitating
+and/or managing the Participant’s Awards under, and participation in, the Plan.
+Such personal data may include, without limitation, the Participant’s name, home
+address and telephone number, date of birth, Social Security Number, social
+insurance number or other identification number, salary, job title and other
+job-related information, tax information, the number of Company shares held or
+sold by the Participant, and the details of all Awards (including any
+information contained in this Award and all Award-related materials) granted to
+the Participant, whether exercised, unexercised, vested, unvested, cancelled or
+outstanding (“Data”). The Participant acknowledges, understands and agrees that
+Data may be transferred to third parties, which will assist the Company with the
+implementation, administration and management of the Plan.
+
+ 
+
+
+
+11
+
+ 
+
+ 
+
+26.        Counterparts. This Agreement may be executed and delivered in one or
+more counterparts and by fax, email or other electronic transmission, each of
+which shall be deemed an original and all of which shall be considered one and
+the same agreement. No party shall raise the use of a fax machine or email to
+deliver a signature or the fact that any signature or agreement or instrument
+was transmitted or communicated through the use of a fax machine or email as a
+defense to the formation or enforceability of this Agreement and each party
+forever waives any such defense.
+
+ 
+
+27.        Acceptance. The Participant hereby acknowledges receipt of a copy of
+the Plan and this Agreement. The Participant has read and understands the terms
+and provisions thereof, and accepts the PSUs subject to all of the terms and
+conditions of the Plan and this Agreement. The Participant acknowledges that
+there may be adverse tax consequences upon the vesting or settlement of the PSUs
+or disposition of the underlying shares and that the Participant has been
+advised to consult a tax advisor prior to such vesting, settlement or
+disposition.
+
+ 
+
+28.        Complete Agreement. This Agreement and the Plan and the other
+documents referred to herein and therein embody the complete agreement and
+understanding among the parties and supersede and preempt any prior
+understandings, agreements or representations by or among the parties, written
+or oral, which may have related to the subject matter hereof in any way.
+
+ 
+
+29.        No Strict Construction. The language used in this Agreement shall be
+deemed to be the language chosen by the parties hereto to express their mutual
+intent, and no rule of strict construction shall be applied against any party.
+
+ 
+
+* * * * *
+
+ 
+
+
+
+12
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
+as of the date first above written.
+
+ 
+
+  UTZ BRANDS, INC.       By:                   Name: Roger Deromedi   Title:
+Chairman of the Board          
+
+
+
+DYLAN B. LISSETTE
+
+ 
+
+
+
+13
+
+ 
+
+ 
+
+Exhibit E
+
+Form of Converted RSU Grant
+
+ 
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Utz Quality Foods, LLC
+
+Restricted Stock Unit Award Agreement
+
+ 
+
+This Restricted Stock Unit Award Agreement (this “Agreement”) is made and
+entered into by and between Utz Brands, Inc., a Delaware corporation (the
+“Company”), and Dylan B. Lissette (the “Participant”).
+
+ 
+
+WHEREAS, Utz Quality Foods, LLC, an indirect wholly owned subsidiary of the
+Company (“Utz”), previously issued 37.50 Phantom Units to Participant under the
+Utz Quality Foods, LLC 2018 Long-Term Incentive Plan (the “2018 LTIP”) pursuant
+to one or more Phantom Unit Award Agreements (the “Prior Agreement”);
+
+ 
+
+WHEREAS, in connection with and contingent upon the occurrence of the closing
+under the Business Combination Agreement by and among the Company (formerly
+known as Collier Creek Holdings), Utz Brands Holdings, LLC (the parent company
+of Utz), Series U of UM Partners, LLC and Series R of UM Partners, LLC (the
+“Business Combination”), Utz amended and restated the 2018 LTIP into the Utz
+Quality Foods, LLC 2020 Long-Term Incentive Plan (the “Plan”) which constitutes
+a sub-plan under the Utz Brands, Inc. 2020 Omnibus Equity Incentive Plan and
+provided each participant in the 2018 LTIP the opportunity to elect to convert
+his or her Phantom Units into Restricted Stock Units under the terms of the
+Plan;
+
+ 
+
+WHEREAS, the Participant previously elected, contingent on the closing of the
+Business Combination, to convert his or her Phantom Units into Restricted Stock
+Units, and pursuant to that election has agreed to sign an award agreement with
+similar provisions to the Prior Agreement;
+
+ 
+
+WHEREAS, a copy of the Plan has been furnished to the Participant and shall be
+deemed a part of this Agreement, as if fully set forth herein, and the terms
+capitalized but not defined herein shall have the meanings set forth in the
+Plan;
+
+ 
+
+WHEREAS, the Participant and the Company desire to formally document in this
+Agreement the Restricted Stock Units issued upon the conversion of the Phantom
+Units and to terminate the Prior Agreement.
+
+ 
+
+NOW, THEREFORE, in consideration of the mutual covenants set forth herein and
+for other valuable consideration hereinafter set forth, the parties, intending
+to be legally bound agree as follows:
+
+ 
+
+1.            Number of Restricted Stock Units. Subject to the conditions set
+forth below and in the Plan, the Company hereby awards to the Participant, as a
+matter of separate inducement but not in lieu of any salary or other
+compensation for the Participant’s services for the Company, 119,454 Restricted
+Stock Unit(s) (the “Award”) representing the number of Restricted Stock Units to
+which the Participant’s Phantom Units converted. The Participant agrees that the
+Prior Agreement is hereby terminated and of no further force or effect.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+2.             Vesting.
+
+ 
+
+2.1           Vesting Schedule. Except as otherwise provided in this Section 2,
+the Award is credited to the Participant’s Account and is 100% vested under the
+terms of the Plan.
+
+ 
+
+2.2           Forfeitures. Notwithstanding any other provision contained herein,
+the Participant’s Account shall be forfeited (including any amount that is or
+otherwise would be vested) upon the earliest to occur of (i) the Participant’s
+employment is terminated by the Company for Cause or voluntarily by the
+Participant without the Company’s written consent other than for Good Reason;
+(ii) the Participant violates any of the provisions of Section 5.1 or
+Section 5.2; (iii) the Participant would be in violation of any of the
+provisions of Section 5.2(a) if such provisions terminated thirty-six (36)
+months (rather than twelve (12) months) following the termination of the
+Participant’s employment for any reason; or (iv) as otherwise provided in the
+Plan with respect to the forfeiture of Restricted Stock Units.
+
+ 
+
+3.                  Payment of Account.
+
+ 
+
+3.1           Payment of Vested Account. The Company shall pay the value of the
+Participant’s Account by the issuance of an equal number of shares of Class A
+common stock of Utz Brands, Inc. in one lump sum payment on the Payment Date.
+All payments shall be made in the form of Class A common stock of Utz Brands,
+Inc. In addition to payment of the value of the Participant’s Account (the
+“Account Value”), the Company shall pay the Participant on the Payment Date an
+additional amount, either in the form of cash or additional shares of Class A
+common stock, as elected by the Company, as a tax “gross-up” (the “Gross-Up
+Payment”) such that the amount that the Participant retains after receipt of the
+Account Value and the Gross-Up Payment and payment of all local, state and
+federal taxes owed with respect to the receipt thereof (taking into account
+income and payroll taxes) is equal to the amount that the Participant would
+retain if the Participant receives the Account Value (but not the Gross-Up
+Payment) and the receipt of the Account Value is treated as long-term capital
+gain for income tax purposes. For purposes of the preceding calculation, the
+Participant shall be presumed to be subject to income tax at the highest
+marginal income tax bracket to which individuals are subject.
+
+ 
+
+3.2           Payment Delay. Notwithstanding Section 3.1, to the extent
+permitted by Section 409A of the Code, payments will be delayed if making the
+payment on the Payment Date would jeopardize the ability of the Company to
+continue as a going concern. If payment is delayed, payment will be made during
+the first taxable year in which making the payment would not so jeopardize the
+Company, together with simple interest computed on the deferred amount at the
+applicable LIBOR rate of interest (or successor rate of interest if LIBOR is no
+longer reported) set forth in The Wall Street Journal plus five percent for the
+period of time from the date of the Distribution Event until the date of actual
+payment.
+
+ 
+
+4.             Payment of Taxes. If the Company, in its discretion, determines
+that it is obligated to withhold any tax in connection with the payment of the
+Participant’s Account, the Participant must make arrangements satisfactory to
+the Company to pay or provide for any applicable federal, state and local
+withholding obligations of the Company. The Committee may permit the Participant
+to satisfy any federal, state or local tax withholding obligation relating to
+the payment of the Participant’s Account by any of the following means, or by a
+combination of such means, to the extent permitted by applicable laws:
+
+ 
+
+
+
+2
+
+ 
+
+ 
+
+(a)           tendering to the Company a certified or official bank check or a
+wire transfer;
+
+ 
+
+(b)          authorizing the Company to withhold shares of Class A common stock
+from the shares of Class A common stock otherwise issuable to the Participant as
+a result of the payment of the Participant’s Account; or
+
+ 
+
+(c)           delivery of properly executed irrevocable instructions to a broker
+registered under the Exchange Act to promptly deliver to the Company the amount
+of proceeds required to satisfy the tax withholding obligations.
+
+ 
+
+5.             Restrictive Covenants.
+
+ 
+
+5.1           Non-Disclosure of Confidential Information.
+
+ 
+
+(a)             The term “Confidential Information,” as used in this Agreement,
+shall mean all confidential and proprietary technical, business and financial
+information relating to the respective businesses of the Company and any of its
+affiliates (collectively, the “Companies”) including, but not limited to,
+marketing and financial information, personnel, sales and statistical data,
+plans for future development, computer programs, information and knowledge
+pertaining to the products and services offered, inventions, innovations,
+designs, ideas, recipes, formulas, manufacturing processes, trade secrets,
+technical data, computer source codes, software, proprietary information,
+construction, advertising, manufacturing, distribution and sales methods and
+systems, pricing, sales and profit figures, customer and client lists, and
+relationships with customers, clients, suppliers, distributors and others who
+have business dealings with any of the Companies and information with respect to
+various ingredients, formulas, manufacturing processes, techniques, procedures,
+processes and methods. Confidential Information also includes confidential or
+proprietary information received by the Participant from third parties in
+connection with the Participant’s employment by any of the Companies subject to
+an obligation to maintain the confidentiality of such information. Confidential
+Information does not include any information that is in the public domain other
+than as a result of breach by the Participant of this Agreement.
+
+ 
+
+(b)             The Participant acknowledges and agrees that all Confidential
+Information known or obtained by the Participant, whether before or after the
+date hereof and regardless of whether the Participant participated in the
+discovery or development of such Confidential Information, is the property of
+one of the Companies. Except as expressly authorized in writing by the Company
+or as necessary to perform the Participant’s services while an employee of the
+Companies, the Participant agrees that the Participant will not, during or after
+the Participant’s employment with the Company or any affiliate of the Company,
+for any reason, directly or indirectly, duplicate, use, misappropriate, exploit,
+remove, copy or disclose to any person Confidential Information, unless such
+information is required to be produced by the Participant under order of a court
+of competent jurisdiction or a valid administrative or congressional subpoena;
+provided, however, that upon receipt of any such order or subpoena, the
+Participant shall promptly notify the Company and shall provide the Company with
+an opportunity at its cost and expense to contest the propriety of such order or
+subpoena or restrict or condition the disclosure of such Confidential
+Information or to arrange for appropriate safeguards against any further
+disclosure by the court or administrative or other body seeking to compel
+disclosure of such Confidential Information.
+
+ 
+
+
+
+3
+
+ 
+
+ 
+
+5.2          Noncompetition; Nonsolicitation; Nondisparagement. As an inducement
+for the Company to enter into this Agreement and provide the potential benefits
+to the Participant available under this Agreement, the Participant agrees that:
+
+ 
+
+(a)             During the entire period of the Participant’s employment with
+any of the Companies and for a period of twelve (12) months following the
+termination of the Participant’s employment for any reason, the Participant
+shall not, directly or indirectly, for the Participant’s own account, or on
+behalf of, or together with, any other person (other than on behalf of the
+Companies) anywhere in any state of the United States or the District of
+Columbia:
+
+ 
+
+(i)              own, manage, operate, control, finance or participate in the
+ownership, management, operation, control or financing of, render financial
+assistance to, be connected as an officer, director, stockholder, employee,
+partner, member, manager, principal, agent, representative, consultant or
+otherwise with, use or permit the Participant’s name to be used in connection
+with, or develop products or services for, any Competing Business. “Competing
+Business” means any business which is engaged in the development, manufacture,
+distribution, marketing or sale of snack foods; notwithstanding the foregoing,
+it shall not be a breach of this Section 5.2(a)(i) for the Participant to own a
+passive investment of less than one percent (1%) of a class of stock of a
+publicly held company that is traded on a national securities exchange or in the
+over the counter market;
+
+ 
+
+(ii)             contact, solicit, induce or attempt to induce any person who is
+or was, within the one-year period prior to termination of the Participant’s
+employment with any of the Companies, a customer, supplier or agent of any of
+the Companies or with which any of the Companies or the Participant had contact
+during the Participant’s employment with any of the Companies, to terminate
+their relationship with any of the Companies, or do any act which may interfere
+with or result in the impairment of the relationship, including any reduction in
+sales or purchases, between any of the Companies and such customers, suppliers
+or agents; or
+
+ 
+
+(iii)            hire any person who is or was, within the one-year period prior
+to termination of the Participant’s employment with any of the Companies, an
+employee of any of the Companies; or contact, solicit, induce or attempt to
+induce any employee who is an employee of any of the Companies for the purpose
+of seeking to have such employee terminate his or her employment with any of the
+Companies.
+
+ 
+
+
+
+4
+
+ 
+
+ 
+
+(b)             The Participant will not, at any time during the entire period
+of the Participant’s employment with any of the Companies and for a period of
+twelve (12) months following the termination of the Participant’s employment for
+any reason, intentionally disparage any of the Companies or any of their
+respective directors, officers, managers, owners or employees.
+
+ 
+
+5.3           Extension of Restrictions. To the fullest extent permitted by law,
+in the event of a breach by the Participant of any covenant set forth in Section
+5.2, the term of such covenant will be extended by the period of the duration of
+such breach.
+
+ 
+
+5.4           Acknowledgments by the Participant. The Participant acknowledges
+and agrees that: (a) the Participant has occupied or will occupy a position of
+trust and confidence with the Companies and has or will become familiar with
+Confidential Information; (b) the Confidential Information is of great value to
+the Companies; (c) the Company has required that the Participant make the
+covenants set forth in Section 5.1 and Section 5.2 as a condition to the
+execution by the Company of this Agreement; (d) the provisions of Section 5.1
+and Section 5.2 are reasonable with respect to duration, geographic area and
+scope and necessary to protect and preserve the goodwill and ongoing business
+value of the Companies; (e) the scope of the business of the Companies is
+independent of location (such that it is not practical to limit the restrictions
+contained in Section 5.2 to a specified county, city or part thereof); (f) the
+Companies would be irreparably damaged if the Participant were to breach the
+covenants set forth in Section 5.1 and Section 5.2; and (g) the potential
+benefits to the Participant available under this Agreement are sufficient to
+compensate the Participant fully and adequately for agreeing to the terms and
+restrictions of this Agreement.
+
+ 
+
+5.5           Specific Performance. The Participant acknowledges and agrees that
+irreparable injury to the Companies will result in the event the Participant
+breaches any covenant or agreement contained in Section 5.1 or Section 5.2 and
+that any remedy at law for the breach of any such covenant will be inadequate.
+Therefore, if the Participant engages in any act in violation of any of the
+provisions of Section 5.1 or Section 5.2, the Participant agrees that the
+Companies shall be entitled, in addition to such other remedies and damages as
+may be available to them at law or under this Agreement, to temporary and
+permanent injunctive relief, without the necessity of proving actual damages,
+and without the necessity of posting a bond, and to an equitable accounting of
+all earnings, profits and other benefits arising from any such breach, which
+rights shall be cumulative and in addition to any other rights or remedies to
+which the Companies may be entitled. If the Participant violates Section 5.1 or
+Section 5.2, the Participant shall be liable to the Companies for any attorneys’
+fees it incurs to enforce this Agreement, in addition to any other remedies that
+the Companies may have.
+
+ 
+
+5.6           Assignment. Neither party may assign its rights or obligations
+under this Agreement except that the Participant agrees that the Company shall
+have the right to assign its rights under this Agreement to any one or more of
+its affiliates, to any entity that acquires a substantial part of the assets of
+the Company or one or more of its affiliates or to a successor by merger,
+consolidation or other corporate restructuring. The obligations of the
+Participant may not be delegated or assigned. Any attempted assignment in
+violation of this Section 5.6 shall be null and void.
+
+ 
+
+
+
+5
+
+ 
+
+ 
+
+5.7           Severability. Whenever possible each provision and term of this
+Agreement will be interpreted in a manner to be effective and valid, but if any
+provision or term of this Agreement is held to be prohibited by law or invalid,
+then such provision or term will be ineffective only to the extent of such
+prohibition or invalidity, without invalidating or affecting in any manner
+whatsoever the remainder of such provision or term or the remaining provisions
+or terms of this Agreement. If the final judgment of a court of competent
+jurisdiction declares that any term or provision of Section 5.2(a) is invalid or
+unenforceable, the parties agree that this Agreement shall be automatically
+modified to reduce the scope, duration, or area of the term or provision to its
+maximum allowable extent, to delete specific words or phrases, or to replace any
+invalid or unenforceable term or provision with a term or provision that is
+valid and enforceable and that comes closest to expressing the intention of the
+invalid or unenforceable term or provision, and this Agreement shall be
+enforceable as so modified. If any of the covenants set forth in Section 5.1 or
+Section 5.2 are held to be unreasonable, arbitrary or against public policy,
+such covenants will be considered divisible with respect to scope, time and
+geographic area, and in such lesser scope, time and geographic area, will be
+effective, binding and enforceable against the Participant.
+
+ 
+
+6.             Right of the Companies to Terminate Services. Nothing in this
+Agreement confers upon the Participant the right to continue in the employ or
+service of the Companies, or interfere in any way with the rights of the
+Companies to terminate the Participant’s employment or service relationship at
+any time.
+
+ 
+
+7.             Remedies. The parties to this Agreement shall be entitled to
+recover from each other reasonable attorneys’ fees incurred in connection with
+the successful enforcement of the terms and provisions of this Agreement,
+whether by an action to enforce specific performance or for damages for its
+breach or otherwise.
+
+ 
+
+8.             No Liability for Good Faith Determinations. The Company and the
+members of the Committee or the Board shall not be liable for any act, omission
+or determination taken or made in good faith with respect to this Agreement or
+the Award granted hereunder.
+
+ 
+
+9.             No Guarantee of Interests. The Board and the Company do not
+guarantee the Account from loss or depreciation.
+
+ 
+
+10.           Information Confidential. As partial consideration for the
+granting of the Award hereunder, the Participant hereby agrees to keep
+confidential all information and knowledge, except that which has been disclosed
+in any public filings required by law, that the Participant has relating to the
+terms and conditions of this Agreement; provided, however, that such information
+may be disclosed as required by law and may be given in confidence to the
+Participant’s spouse and tax and financial advisors. The Company may disclose
+information regarding the Award as the Company deems necessary and proper.
+
+ 
+
+
+
+6
+
+ 
+
+ 
+
+11.           Successors. This Agreement shall be binding upon the Participant,
+the Participant’s legal representatives, heirs, legatees, and distributees, and
+upon the Company, its successors, and assigns.
+
+ 
+
+12.           Severability. If any provision of this Agreement is held to be
+illegal or invalid for any reason, the illegality or invalidity shall not affect
+the remaining provisions hereof, but such provision shall be fully severable and
+this Agreement shall be construed and enforced as if the illegal or invalid
+provision had never been included herein.
+
+ 
+
+13.           Headings; Recitals. The titles and headings of Sections are
+included for convenience of reference only and are not to be considered in
+construction of the provisions hereof. The recitals set forth above hereby are
+incorporated by reference and made a part hereof as if fully rewritten herein.
+
+ 
+
+14.           Governing Law. All questions arising with respect to the
+provisions of this Agreement shall be determined by application of the laws of
+the State of Delaware, without giving any effect to any conflict of law
+provisions thereof, except to the extent preempted by federal law.
+
+ 
+
+15.           Arbitration. Except as provided in Section 5 (relating to
+enforcement of restrictive covenants), any dispute, controversy or claim arising
+out of or related to this Agreement or any breach of this Agreement shall be
+submitted to and decided by binding arbitration. Arbitration shall be
+administered exclusively by the American Arbitration Association in Hanover,
+Pennsylvania (or such other location mutually agreed by the parties) and shall
+be conducted consistent with the rules, regulations, and requirements of the
+courts situated therein as well as any requirements imposed by state law. Any
+arbitral award determination shall be final and binding upon the parties and may
+be enforced in any court of competent jurisdiction.
+
+ 
+
+16.           Amendment and Termination. This Agreement may be amended or
+terminated by the Company at any time; provided, that, no amendment or
+termination that adversely affects the Participant’s rights with respect to the
+value of the Participant’s Account shall be made without the Participant’s
+consent. No payment of benefits shall be made upon termination of the Plan
+unless the requirements of Section 409A of the Code have been met.
+
+ 
+
+17.           No Waiver. The Company’s failure to insist upon strict compliance
+with any provision of, or to assert any right under, this Agreement shall not be
+deemed to be a waiver of such provision or right or of any other provision or
+right under this Agreement.
+
+ 
+
+18.           Section 409A. The Company intends that the Plan and this Agreement
+comply with the requirements of Section 409A of the Code to the extent
+applicable and they shall be operated and interpreted consistent with that
+intent.
+
+ 
+
+19.           Interpretation. Any dispute regarding the interpretation of this
+Agreement shall be submitted to the Committee for review. The resolution of such
+dispute by the Committee shall be final and binding on the parties, unless such
+decisions are determined by a court having jurisdiction to be arbitrary and
+capricious.
+
+ 
+
+20.           Severability. The invalidity or unenforceability of any provision
+of the Plan or this Agreement shall not affect the validity or enforceability of
+any other provision of the Plan or this Agreement, and each provision of the
+Plan and this Agreement shall be severable and enforceable to the extent
+permitted by law.
+
+ 
+
+
+
+7
+
+ 
+
+ 
+
+21.           Counterparts. This Agreement may be executed in counterparts, each
+of which shall be deemed an original but all of which together will constitute
+one and the same instrument. Counterpart signature pages to this Agreement
+transmitted by facsimile transmission, by electronic mail in portable document
+format (.pdf), or by any other electronic means intended to preserve the
+original graphic and pictorial appearance of a document, will have the same
+effect as physical delivery of the paper document bearing an original signature.
+
+ 
+
+22.           Acknowledgement; Release. The Participant acknowledges and agrees
+that: (a) the Participant is not relying upon any determination by the Company,
+its affiliates, or any of their respective employees, directors, officers,
+attorneys or agents (collectively, the “Company Parties”) of the fair market
+value of the Restricted Stock Units or value of the Account; (b) the Participant
+is not relying upon any written or oral statement or representation of the
+Company Parties regarding the tax effects associated with the Participant’s
+execution of this Agreement and the Participant’s receipt, and ultimate
+distribution, of the Award; and (c) in deciding to enter into this Agreement,
+the Participant is relying on the Participant’s own judgment and the judgment of
+the professionals of the Participant’s choice with whom the Participant has
+consulted. The Participant hereby releases, acquits, and forever discharges the
+Company Parties from all actions, causes of actions, suits, debts, obligations,
+liabilities, claims, damages, losses, costs and expenses of any nature
+whatsoever, known or unknown, on account of, arising out of, or in any way
+related to the tax effects associated with the Participant’s execution of this
+Agreement and the Participant’s receipt of, and ultimate distribution with
+respect to, the Award.
+
+ 
+
+[SIGNATURE PAGE FOLLOWS]
+
+ 
+
+
+
+8
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
+date first above written.
+
+ 
+
+  UTZ BRANDS, INC.       By:     Name: Roger Deromedi   Title: Chairman of the
+Board       PARTICIPANT             Name: DYLAN B. LISSETTE
+
+ 
+
+
+
+9
+
+ 
+
+ 
+
+Exhibit F
+
+Form of Executive Change in Control Severance Plan
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Exhibit G
+
+PubCo’s terms of employment
+
+ 
+
+In consideration of your employment with PubCo, you acknowledge that you owe a
+duty of loyalty to PubCo and its subsidiaries (collectively, the “Company”) at
+all times to act in its best interest and to safeguard and protect its trade
+secrets and confidential information. Intending to be legally bound, you hereby
+agree to the following terms (these “Terms of Employment”):
+
+ 
+
+1.             Non-Disclosure of Confidential Information.
+
+ 
+
+(a)             The term “Confidential Information,” as used herein, shall mean
+any and all information (in whatever form and whether or not expressly
+designated as confidential) relating directly or indirectly to the respective
+businesses, operations, financial affairs, assets or technology of the Company,
+including, but not limited to, marketing and financial information, personnel,
+sales and statistical data, plans for future development, computer programs,
+information and knowledge pertaining to the products and services offered,
+inventions, innovations, designs, ideas, recipes, formulas, manufacturing
+processes, trade secrets, technical data, computer source codes, software,
+proprietary information, construction, advertising, manufacturing, distribution
+and sales methods and systems, pricing, sales and profit figures, customer and
+client lists, and relationships with customers, clients, suppliers, distributors
+and others who have business dealings with the Company and information with
+respect to various ingredients, formulas, manufacturing processes, techniques,
+procedures, processes and methods. Confidential Information also includes
+information received by you from third parties in connection with your
+employment by the Company subject to an obligation to maintain the
+confidentiality of such information. Confidential Information does not include
+information which (a) becomes generally known to and available for use by the
+public other than as a result of your violation of the Terms of Employment; (b)
+is or becomes generally available within the relevant business or industry other
+than as a result of your violation of the Terms of Employment; or (c) is or
+becomes available to you on a non-confidential basis from a source other than
+the Company, which source is not known by you, after reasonable inquiry, to be
+subject to a contractual or fiduciary obligation of secrecy to the Company.
+
+ 
+
+(b)             You acknowledge and agree that all Confidential Information
+known or obtained by you, whether before or after the Start Date and regardless
+of whether you participated in the discovery or development of such Confidential
+Information, is the property of the Company. Except as expressly authorized in
+writing by Pubco or as necessary to perform your services while an employee of
+the Company, you agree that you will not, at any time, for any reason, directly
+or indirectly, duplicate, use, make available, sell, misappropriate, exploit,
+remove, copy or disclose to any individual, entity or group (within the meaning
+of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended)
+(“Person”) Confidential Information, unless such information is required to be
+produced by you under order of a court of competent jurisdiction or a valid
+administrative or congressional subpoena; provided, however, that upon receipt
+of any such order or subpoena, you shall promptly notify Pubco and shall provide
+Pubco with an opportunity at its cost and expense to contest the propriety of
+such order or subpoena or restrict or condition the disclosure of such
+Confidential Information or to arrange for appropriate safeguards against any
+further disclosure by the court or administrative or other body seeking to
+compel disclosure of such Confidential Information.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+2.             Whistleblower Protection. Nothing in these Terms of Employment is
+intended to conflict with the whistleblower provisions of any United States
+federal, state or local law or regulation, including but not limited to Rule
+21F-17 of the Securities Exchange Act of 1934 or § 1833(b) of the Defend Trade
+Secrets Act of 2016. Accordingly, notwithstanding anything to the contrary
+herein, nothing in these Terms of Employment shall prohibit you from reporting
+possible violations of United States federal, state or local law or regulation
+to any United States federal, state or local governmental agency or entity,
+including but not limited to the Department of Justice, the Securities and
+Exchange Commission, the Congress, and any agency Inspector General, or to an
+attorney, or from making other disclosures that are protected under the
+whistleblower provisions of federal law or regulation, or from disclosing trade
+secrets and other confidential information in the course of such reporting;
+provided, that you use your reasonable efforts to (a) disclose only information
+that is reasonably related to such possible violations or that is requested by
+such agency or entity and (b) request that such agency or entity treat such
+information as confidential. You do not need the prior authorization from the
+Company to make any such reports or disclosures and you are not required to
+notify the Company that you have made such reports or disclosures. In addition,
+you have the right to disclose trade secrets and other confidential information
+in a document filed in a lawsuit or other proceeding; provided, that the filing
+is made under seal and protected from public disclosure.
+
+ 
+
+3.             Restrictive Covenants. You agree that during your employment, you
+will have access to Confidential Information. Such access and knowledge would
+put the Company at an unfair competitive disadvantage were you to use it on
+behalf of another person or entity. Therefore, during your employment with the
+Company and for a period of two (2) years following the termination of your
+employment with the Company, you agree that you shall not, directly or
+indirectly, for your own account, or on behalf of, or together with, any other
+Person (other than on behalf of the Company) anywhere in any state of the United
+States or the District of Columbia:
+
+ 
+
+(a)             own, manage, operate, control, finance or participate in the
+ownership, management, operation, control or financing of, render financial
+assistance to, be connected as an officer, director, stockholder, employee,
+partner, member, manager, principal, agent, representative, consultant or
+otherwise with, use or permit your name to be used in connection with, or
+develop products or services for, any Competing Business. “Competing Business”
+means any business which is engaged in the development, manufacture,
+distribution, marketing or sale of snack foods; notwithstanding the foregoing,
+it shall not be a breach of this Section 3(a) of these Terms of Employment for
+you to own a passive investment of less than one percent (1%) of a class of
+stock of a publicly held company that is traded on a national securities
+exchange or in the over the counter market;
+
+ 
+
+(b)             contact, solicit, induce or attempt to contact, solicit or
+induce any Person who is or was, within the one-year period prior to the
+termination of your employment with the Company, a customer, supplier or agent
+of the Company or with which the Company or you had contact during your
+employment with the Company, to terminate their relationship with the Company,
+or do any act which may interfere with or result in the impairment of the
+relationship, including any reduction in sales or purchases, between the Company
+and such customers, suppliers or agents; or
+
+ 
+
+
+
+ 2 
+
+ 
+
+ 
+
+(c)             hire any Person who is or was, within the one-year period prior
+to termination of your employment with the Company, an employee of the Company;
+or contact, solicit, induce or attempt to contact, solicit or induce any Person
+who is or was, within the one-year period prior to termination of your
+employment with the Company, an employee of the Company for the purpose of
+seeking to have such employee terminate his or her employment with the Company.
+
+ 
+
+(d)             You will not, at any time, make any statement that is intended
+to disparage: (i) the Company or any of its businesses, products, services,
+directors or officers or (ii) Michael Rice, the spouse and lineal descendants
+(whether natural or adopted) of Michael Rice or any spouse of any lineal
+descendants of Michael Rice.
+
+ 
+
+(e)             In the event of a breach or threatened breach of this Section 3
+of these Terms of Employment, the Company may, in addition to other rights and
+remedies existing in its favor, apply to any court of competent jurisdiction for
+specific performance and/or temporary or permanent injunctive or other equitable
+relief in order to enforce, or prevent any violations of, the provisions hereof
+(without posting a bond or other security), without the necessity of showing any
+actual damages or that money damages would not afford an adequate remedy. The
+aforementioned equitable relief shall be in addition to, not in lieu of, legal
+remedies, monetary damages or other available forms of relief. In addition to
+any other relief, the prevailing party in any such action shall be entitled to
+recover its costs and attorney’s fees. If a court holds that the duration,
+scope, or area restrictions stated herein are unreasonable, the parties agree
+that the court shall be allowed and directed to revise the restrictions to cover
+the maximum reasonable period, scope and area permitted by law.
+
+ 
+
+4.             Employee Invention Assignment.
+
+ 
+
+(a)             You acknowledge and agree that all ideas, methods, inventions,
+discoveries, improvements, work products, developments, software, know-how,
+processes, techniques, works of authorship and other work product, whether
+patentable or unpatentable, (i) that are reduced to practice, created, invented,
+designed, developed, contributed to, or improved with the use of any of the
+Company’s resources and/or within the scope of your duties to the Company or
+that relate to the business, operations or actual or demonstrably anticipated
+research or development of the Company, and that are made or conceived by you,
+solely or jointly with others, during your employment by the Company; or (ii)
+suggested by any work that you perform in connection with the Company, either
+while performing your duties to the Company or on your own time, will belong
+exclusively to the Company (or its designees), whether or not patent or other
+applications for intellectual property protection are filed thereon (the
+“Inventions”). You will keep full and complete written records (the “Records”),
+in the manner prescribed by the Company, of all Inventions, and will promptly
+disclose all Inventions completely and in writing to the Company. The Records
+are the sole and exclusive property of the Company, and you will surrender them
+upon termination of your employment, or upon the Company’s request. You
+irrevocably convey, transfer and assign to the Company the Inventions and all
+patents or other intellectual property rights that may issue thereon in any and
+all countries, whether during or subsequent to your employment by the Company,
+together with the right to file, in your name or in the name of the Company (or
+their designees), applications for patents and equivalent rights (the
+“Applications”). You will, at any time during and subsequent to employment by
+the Company, make such applications, sign such papers, take all rightful oaths,
+and perform all other acts as may be requested from time to time by the Company
+to perfect, record, enforce, protect, patent or register the Company’s rights in
+the Inventions, all without additional compensation to you from the Company. You
+will also execute assignments to the Company (or its designees) of the
+Applications, and give the Company and their attorneys all reasonable assistance
+(including the giving of testimony) to obtain the Inventions for the Company’s
+benefit.
+
+ 
+
+
+
+ 3 
+
+ 
+
+ 
+
+(b)             In addition, the Inventions are deemed Work for Hire, as such
+term is defined under the copyright laws of the United States, on behalf of the
+Company, and you agree that the Company is the sole owner of the Inventions and
+all underlying rights therein, in all media now known or hereinafter devised,
+throughout the universe and in perpetuity without any further obligations to
+you. If the Inventions, or any portion thereof, are deemed not to be Work for
+Hire, or the rights in such Inventions do not otherwise automatically vest in
+the Company, you hereby irrevocably convey, transfer and assign to the Company
+all rights, in all media now known or hereinafter devised, throughout the
+universe and in perpetuity, in and to the Inventions, including, without
+limitation, all of your right, title and interest in the copyrights (and all
+renewals, revivals and extensions thereof) to the Inventions, including, without
+limitation, all rights of any kind or any nature now or hereafter recognized,
+including, without limitation, the unrestricted right to make modifications,
+adaptations and revisions to the Inventions, to exploit and allow others to
+exploit the Inventions and all rights to sue at law or in equity for any
+infringement, or other unauthorized use or conduct in derogation of the
+Inventions, known or unknown, before the date hereof, including, without
+limitation, the right to receive all proceeds and damages therefrom. In
+addition, you hereby waive any so-called “moral rights” with respect to the
+Inventions. To the extent that you have any rights in the results and proceeds
+of your service to the Company that cannot be assigned in the manner described
+herein, you agree to unconditionally waive the enforcement of such rights. You
+hereby waive any and all currently existing and future monetary rights in and to
+the Inventions and all patents and other registrations for intellectual property
+that may issue thereon, including, without limitation, any rights that would
+otherwise accrue to your benefit by virtue of you being an employee of or other
+service provider to the Company.
+
+ 
+
+5.             Return of Company Property and Company Information. You agree to
+return, promptly following the termination of your employment with the Company,
+or earlier if directed by the Company, any and all of Company’s property in your
+possession, as well as any and all records, files, correspondence, reports and
+computer disks relating to the Company’s operations, products and potential
+products, marketing, research and development, production and general business
+plans, customer information, accounting and financial information, distribution,
+sales, and confidential cost and price characteristics and policies in your
+possession (including on any personal computer).
+
+ 
+
+6.             Acknowledgments. You acknowledge and agree that: (a) you will
+occupy a position of trust and confidence with the Company and become familiar
+with Confidential Information; (b) the Confidential Information is of unique,
+very substantial and immeasurable value to the Company; (c) Pubco has required
+that you make the covenants set forth in Sections 1 through 5 of these Terms of
+Employment as a condition to the execution by Pubco of the Offer Letter; (d) the
+provisions of Sections 1 through 5 of these Terms of Employment are reasonable
+with respect to duration, geographic area and scope and necessary to protect and
+preserve the goodwill and ongoing business value of the Company, and will not,
+individually or in the aggregate, prevent you from obtaining other suitable
+employment during the period in which you are bound by such provisions; (e) the
+scope of the business of the Company is independent of location (such that it is
+not practical to limit the restrictions contained in Sections 1 through 5 of
+these Terms of Employment to a specified county, city or part thereof); (f) the
+Company would be irreparably damaged if you were to breach the covenants set
+forth in Sections 1 through 5 of these Terms of Employment; and (g) the
+potential benefits to you available under the Offer Letter are sufficient to
+compensate you fully and adequately for agreeing to the terms and restrictions
+in these Terms of Employment.
+
+ 
+
+
+
+ 4 
+
+ 
+
+ 
+
+7.             Governing Law, Jurisdiction and Costs. The law of the State of
+Delaware shall govern (a) all claims or matters related to or arising from these
+Terms of Employment (including any tort or non-contractual claims) and (b) any
+questions concerning the construction, interpretation, validity and enforcement
+of these Terms of Employment, without giving effect to any choice of law or
+conflict of law rules or provisions (whether of the State of Delaware or any
+other jurisdiction) that would cause the application of the law of any
+jurisdiction other than the State of Delaware. You hereby agree to submit to
+personal jurisdiction of said courts, and waive any right to challenge venue or
+claim that it is an inconvenient forum. You will reimburse the Company for all
+court costs and reasonable attorneys’ fees incurred in connection with any
+action the Company brings for a breach or threatened breach by you of any
+covenants contained in these Terms of Employment if (i) you challenge the
+reasonableness or enforceability of such covenants or (ii) the Company is the
+prevailing party in such action.
+
+ 
+
+8.             Severability. If any term, provision or paragraph of these Terms
+of Employment is determined by a court of competent jurisdiction to be invalid
+or unenforceable for any reason, such determination shall be limited to the
+narrowest possible scope in order to preserve the enforceability of the
+remaining portions of the term, provision or paragraph, and such determination
+shall not affect the remaining terms, provisions or paragraphs of these Terms of
+Employment, which shall continue to be given full force and effect.
+
+ 
+
+
+
+ 5 
+
+
+Exhibit 10.1
+
+COLLABORATIVE DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
+
+between
+
+AMERIMMUNE LLC
+
+and
+
+HISTOGEN, INC.
+
+Dated as of 26 October 2020
+
+ 
+
+
+
+--------------------------------------------------------------------------------
+
+COLLABORATIVE DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
+
+This Collaborative Development and Commercialization Agreement (the “Agreement”)
+is entered into as of 26 October 2020 (the “Effective Date”) by and between
+Amerimmune LLC, a Virginia limited liability company with a place of business at
+11212 Waples Mill Rd, Suite 100, Fairfax, Virginia 22030 (“Amerimmune”), and
+Histogen, Inc., a Delaware corporation with a place of business at 16745 West
+Bernardo Drive, Suite 200, San Diego, California 92127 (“Histogen”). Amerimmune
+and Histogen may each be referred to herein by name or as a “Party”, or,
+collectively, as the “Parties.”
+
+BACKGROUND
+
+Histogen is a clinical-stage regenerative medicine company with a novel
+biological platform that replaces and regenerates tissues in the human body. On
+or about 27 May 2020, Histogen, through a reverse merger with Conatus
+Pharmaceuticals, Inc. (“Conatus”), acquired the assets of Conatus, including
+that certain pan-caspase inhibitor known as Emricasan (as defined below).
+
+Amerimmune is a clinical laboratory engaged in research related to human
+disease. Amerimmune has recently invented technologies for the treatment of
+COVID-19 using caspase inhibitors, including Emricasan.
+
+Amerimmune and Histogen now wish to collaborate to undertake a clinical
+development program using Emricasan to determine if Emricasan is safe and
+efficacious in treating COVID-19.
+
+In view of the foregoing and the following terms and condition set forth below,
+and for other good and valuable consideration, the receipt and sufficiency of
+which the Parties acknowledge, Amerimmune and Histogen agree as follows:
+
+ARTICLE I
+
+DEFINITIONS
+
+1.1 Terms. Capitalized and underlined terms in this Agreement (including its
+Schedules) shall be defined as indicated, including those terms set out below.
+
+1.1.1 “Accounting Standards” means GAAP (United States Generally Accepted
+Accounting Principles), consistently applied.
+
+1.1.2 “Additional Revenue” means the sum of (a) any payments or income (other
+than Net Sales) received by a Party or its Affiliates that are attributable to a
+Product, including any and all payments or income (other than Net Sales)
+received from a Strategic Partner pursuant to a Strategic Partnership, and (b)
+recoveries pursuant to Section 6.4 of this Agreement; provided, however, that
+such amount does not include an amount received from any Third Party (i) for
+issuance of equity securities, (ii) pursuant to a bona fide loan, (iii) for any
+payment made or reimbursement provided for Development, (iv) for any payment
+made or reimbursement provided for Patent Costs, (v) for acquisition of a Party
+or any of its Affiliates, or an assignee or successor of a Party or any of its
+Affiliates, or (vi) for acquisition of any of the assets of a Party or any of
+its Affiliates, or an assignee or successor of a Party or any of its Affiliates.
+
+1.1.3 “Advertising and Market Research Expenses” means, with respect to a
+Product, those expenses incurred related to: (a) conducting and monitoring
+professional and consumer appraisals of any Products in the Territory, such as
+market share services (e.g., IMS data), pricing analysis, special research
+testing and focus groups; and (b) advertising and promotion of such Product in
+the Territory through any means, including (i) television and radio
+advertisements; (ii) advertisements appearing in journals, newspapers, magazines
+or other media; (iii) seminars, symposia and conventions; (iv) packaging design;
+(v) programs for education of health care professionals; (vi) product samples;
+(vii) visual aids and other selling materials; (viii) hospital formulary
+committee presentations; (ix) presentations to state and other governmental
+formulary committees; and (x) all media costs associated with product
+advertising.
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.4 “Affiliate” means, as to any Person, any other Person that, directly or
+indirectly through one or more intermediaries, controls, is controlled by, or is
+under common control with such Person, as the case may be, for so long as such
+control exists. As used in this Section 1.1.2, “control” means: (a) to possess,
+directly or indirectly, the power to direct affirmatively the management and
+policies of such Person, whether through ownership of voting securities or by
+contract relating to voting rights or corporate governance; (b) in the case of a
+corporate entity, direct or indirect ownership of at least fifty percent (50%)
+of the stock or shares having the right to vote for the election of directors;
+or (c) in the case of a non-corporate entity, direct or indirect ownership of at
+least fifty percent (50%) of the equity interest with the power to direct the
+management and policies of such non-corporate entity, or in each case (b) and
+(c) such lesser percentage which is the maximum allowed to be owned by a foreign
+corporation or non-corporate entity in a particular jurisdiction.
+
+1.1.5 “Alliance Manager” has the meaning set forth in Section 3.4.
+
+1.1.6 “Amended and Restated CDA” means that certain “Amended and Restated
+Confidential Disclosure Agreement” entered into by the Parties on 23 July 2020
+and effective as of 5 May 2020.
+
+1.1.7 “Amerimmune Indemnified Party” has the meaning set forth in Section 10.2,
+below.
+
+1.1.8 “Amerimmune Intellectual Property” means Amerimmune Know-How and
+Amerimmune Patents, collectively.
+
+1.1.9 “Amerimmune Know-How” means any Know-How that is (a) Controlled by
+Amerimmune as of the Effective Date or during the Term, and (b) necessary or
+useful for the Development, Manufacture and/or Commercialization of any Product
+in the Field.
+
+1.1.10 “Amerimmune Manufacturing Responsibilities” has the meaning set forth in
+Section 5.4, below.
+
+1.1.11 “Amerimmune Patents” means any and all Patents that (a) are owned or
+controlled by Amerimmune as of the Effective Date or during the Term, and
+(b) concern the Development, Manufacture, and/or Commercialization of any
+Product (including the composition of matter, manufacture, or any use thereof)
+in the Field. The Amerimmune Patents include those Patents listed on attached
+Schedule 1.
+
+1.1.12 “Amerimmune Profit Allocation” means the percentage of Profits to which
+Amerimmune is entitled.
+
+1.1.13 “Bankruptcy Code” has the meaning set forth in Section 5.1.5, below.
+
+1.1.14 “Calendar Quarter” means a calendar quarter ending on the last day of
+March, June, September or December; provided, however, that (a) the first
+Calendar Quarter shall begin on the Effective Date and end on 30 September 2020,
+and (b) the final Calendar Quarter shall end on the last day of the Term.
+
+1.1.15 “Calendar Year” means a period of time commencing on January 1 and ending
+on the following December 31; provided, however, that (a) the first Calendar
+Year shall begin on the Effective Date and end on December 31, 2020, and (b) the
+final Calendar Year shall end on the last day of the Term.
+
+1.1.16 “Change of Control” of a Party means any of the following, in a single
+transaction or a series of related transactions: (a) the sale or disposition of
+all or substantially all of the assets of such Party to a Third Party; (b) the
+direct or indirect acquisition by a Third Party (other than an employee benefit
+plan (or related trust) sponsored or maintained by such Party or any of its
+Affiliates) of beneficial ownership of more than fifty percent (50%) of the
+then-outstanding common shares or voting power of such Party or any direct or
+indirect entity which holds, directly or indirectly, beneficial ownership of
+more than fifty percent (50%) of the then-outstanding common shares or voting
+power of such Party, or (c) the acquisition, merger, or consolidation of such
+Party with or into a Third Party, unless, following such acquisition, merger, or
+consolidation.
+
+ 
+
+-2-
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.17 “Chemistry, Manufacturing and Controls” or “CMC” means the part of
+pharmaceutical development that is directed to the Development and Manufacture
+of products, the specifications therefor, and other parameters which indicate
+that the finished drug or biologic product and the manufacturing process are
+consistent and controlled, in each case, as specified by the FDA or other
+applicable Regulatory Authorities in the chemistry, manufacturing and controls
+section of an IND or other regulatory filing in the United States, or the
+equivalent section of regulatory filings made outside of the United States.
+
+1.1.18 “Claims” means any and all suits, claims, actions, proceedings, or
+demands brought by a Third Party.
+
+1.1.19 “Clinical Trial” means a Phase I Study, a Phase II Study, a Phase III
+Study, a Pivotal Clinical Trial, a Phase IV Study, or a combination of any of
+the foregoing studies.
+
+1.1.20 “Collaboration” has the meaning set forth in Section 2.1, below.
+
+1.1.21 “Committee” means the JDC or JPC, as the context requires.
+
+1.1.22 “Commercialization” or “Commercialize” means any activities directed to
+using, marketing, promoting, distributing, importing, offering to sell, and/or
+selling a Product, after or in expectation of receipt of Regulatory Approval for
+such Product (but excluding Development).
+
+1.1.23 “Commercial Field” means the treatment, prophylaxis, or amelioration of
+any condition, disease, or disorder in humans.
+
+1.1.24 “Competitive Product” means any Product or other compound that has as its
+primary mode of action modulation of one or more caspase enzyme activities.
+
+1.1.25 “Confidential Information” means (a) all confidential or proprietary
+information relating to any Product, including all pre-clinical and clinical
+data, and (b) all other confidential or proprietary documents, technology,
+Know-How, or other information (whether or not patentable) actually disclosed by
+one Party to the other pursuant to this Agreement or Amended and Restated
+Confidentiality Agreement, including information regarding a Party’s technology,
+products, business information or objectives and reports under Section 2.7, and
+all proprietary biological materials of a Party.
+
+1.1.26 “Contingent Payments” mean the consideration received or receivable by
+Amerimmune, its employees, former or current equity holders and/or any other
+parties in the form of deferred performance or retention-based payments,
+earn-outs, or other contingent payments based upon the occurrence of future
+events. Any part of the sales proceeds held pursuant to an escrow account
+established before or in connection with the consummation of a Transaction shall
+be deemed paid or received and not contingent.
+
+1.1.27 “Control” or “Controlled” means, with respect to any (a) Know-How or
+other information or materials, (b) any compounds, or (c) intellectual property
+right, the possession (whether by license (other than a license granted under
+this Agreement) or ownership) by a Party of the ability to grant to the other
+Party access and/or a license, as provided herein, without violating the terms
+of any agreement with any Third Party existing as of the Effective Date or
+thereafter during the Term.
+
+1.1.28 “Cure Period” has the meaning set forth in Section 11.4.1, below.
+
+1.1.29 “Damages” means all claims, threatened claims, damages, losses, suits,
+proceedings, liabilities, costs (including reasonable legal expenses, costs of
+litigation and reasonable attorney’s fees), or judgments, whether for money or
+equitable relief, of any kind and is not limited to matters asserted by Third
+Parties against a Party, but includes claims, threatened claims, damages,
+losses, suits, proceedings, liabilities, costs (including reasonable legal
+expenses, costs of litigation and reasonable attorney’s fees) or judgments
+incurred or sustained by a Party in the absence of Third Party claims; provided,
+that no Party shall be liable to hold harmless or indemnify the Amerimmune
+Indemnified Parties or Histogen Indemnified Parties, as applicable, for any
+claims,
+
+ 
+
+-3-
+
+
+
+--------------------------------------------------------------------------------
+
+threatened claims, damages, losses, suits, proceedings, liabilities, costs or
+judgments for punitive or exemplary damages, except to the extent the Party
+seeking indemnification is actually liable to a Third Party for such punitive or
+exemplary damages in connection with a claim by such Third Party.
+
+1.1.30 “Data” means any and all research data, results, pharmacology data,
+medicinal chemistry data, preclinical data, market research, clinical data
+(including investigator reports (both preliminary and final), results,
+conclusions, statistical analyses, expert opinions and reports, safety and other
+electronic databases), in any and all forms, including files, reports, raw data,
+source data (including patient medical records and original patient report
+forms, but excluding patient-specific data to the extent required by applicable
+Laws), and the like, in each case created, generated, or directed to, or used
+in, the Development, Manufacture or Commercialization of any Product(s).
+
+1.1.31 “Develop” or “Development” means discovery, research, preclinical,
+non-clinical and clinical development activities, including activities relating
+to screening, assays, test method development and stability testing, toxicology,
+pharmacology, formulation, quality assurance/quality control development,
+Clinical Trials, technology transfer, statistical analysis, process development
+and scale-up, pharmacokinetic studies, data collection and management, report
+writing and other pre-Regulatory Approval activities.
+
+1.1.32 “Development Costs” means with respect to a Product, the costs and
+expenses that are actually incurred by or on behalf of a Party and specifically
+and directly attributable to the Development of such Product. “Development
+Costs” of a Party with respect to the Product shall include, without
+duplication:
+
+(a) the FTE Costs of the Party or its Affiliates with respect to such
+Development;
+
+(b) all Out-of-Pocket Costs incurred by the Party or its Affiliates, including
+payments made to Third Parties, with respect to such Development (except to the
+extent that such costs have been included in FTE Costs), including the costs and
+expenses of conducting Clinical Trials;
+
+(c) Regulatory Expenses other than Regulatory Maintenance Costs;
+
+(d) the cost of contract research organizations;
+
+(e) Manufacturing Costs for clinical supply, including:
+
+(i) costs of packaging of drug products and distribution of drug products used
+in Clinical Trials;
+
+(ii) expenses incurred to purchase or package comparator drugs;
+
+(iii) costs and expenses of disposal of clinical samples; and
+
+(iv) costs and expenses incurred in scaling up Manufacturing activities related
+to pre-clinical or clinical supply, including formulation development
+activities;
+
+(f) Manufacturing Scale-Up Costs; and
+
+(g) Third Party License Costs.
+
+Development Costs for a Product shall not include any Damages and other
+liabilities incurred by a Party as a result of such Party’s negligence, gross
+negligence, illegal conduct, willful misconduct, or breach of such Party’s
+representations and warranties made hereunder and any such Damages and other
+liabilities will be treated as the sole and exclusive responsibility of the
+Party whose actions or omissions gave rise to such Damages and other
+liabilities.
+
+All of such costs shall be as determined from the books and records of the
+applicable Party and its Affiliates maintained in accordance with Accounting
+Standards. For purposes of clarity, no general corporate
+
+ 
+
+-4-
+
+
+
+--------------------------------------------------------------------------------
+
+overhead or fixed charges, such as depreciation, shall constitute Development
+Costs (except as otherwise provided under the definition of Manufacturing
+Costs).
+
+1.1.33 “Development Plan” means a development plan outlining the clinical
+program to be pursued in Developing a Product.
+
+1.1.34 “Disclosing Party” has the meaning set forth in Section 7.1, below.
+
+1.1.35 “Dispute” has the meaning set forth in Section 11.1, below.
+
+1.1.36 “Electronic Delivery” has the meaning set forth in Section 12.12, below.
+
+1.1.37 “EMA” means the European Medicines Agency, or any successor agency
+thereof.
+
+1.1.38 “Emricasan” means (a) in the Research Field, an irreversible orally
+active pan-caspase inhibitor formerly known as IDN-6556, PF-03491390; with an
+IUPAC name of
+(3S)-3-{[(2S)-2-{[2-(2-tert-butylanilino)-2-oxoacetyl]amino}propanoyl]amino}-4-oxo-5-(2,3,5,6-tetrafluorophenoxy)pentanoic
+acid; and (b) in the Commercial Field, an irreversible orally active pan-caspase
+inhibitor formerly known as IDN-6556, PF-03491390; with an IUPAC name of
+(3S)-3-{[(2S)-2-{[2-(2-tert-butylanilino)-2-oxoacetyl]amino}propanoyl]amino}-4-oxo-5-(2,3,5,6-tetrafluorophenoxy)pentanoic
+acid, alone or in any dosage form or delivery system, including pro-drugs,
+hydrates, hemihydrates, polymorphs, acids, bases, analogs, homologs,
+derivatives, and isomers, including stereoisomers, structural and geometric
+isomers, diastereomers, enantiomers, racemic mixtures, and chiral versions.
+
+1.1.39 “Existing Third Party Agreement” means a Third Party agreement existing
+as of the Effective Date regarding the acquisition, licensing, or other grant of
+rights to or under any Patent or Know-How owned or controlled by a Third Party
+that are necessary or useful for the Development, Manufacture or
+Commercialization of one or more Products.
+
+1.1.40 “FDA” means the United States Food and Drug Administration, or any
+successor agency thereof.
+
+1.1.41 “FDCA” means the United States Federal Food, Drug, and Cosmetic Act, and
+the regulations promulgated thereunder, each as amended from time to time.
+
+1.1.42 “Field” means the Research Field and/or the Commercial Field, as the
+context requires.
+
+1.1.43 “FTE” means the equivalent of the work of one (1) full-time employee of a
+Party or its Affiliates for one (1) year (consisting of One Thousand Nine
+Hundred Fifty (1,950) hours per year) in directly conducting Development,
+Manufacturing, and/or as Pre-Commercialization Expenses hereunder. For the
+avoidance of doubt, “FTE” shall not include the work of general corporate or
+administrative personnel, except for the portion of such personnel’s work time
+actually spent on conducting scientific, technical or commercial activities
+directly related to the Development, Manufacture, or as Pre-Commercialization
+Expenses related to one or more Products.
+
+1.1.44 “FTE Costs” means, for any period, the FTE Rate multiplied by the number
+of FTEs (including fractions thereof) in such period.
+
+1.1.45 “FTE Rate” means, during the Term, Two Hundred Fifty Thousand dollars
+($250,000) per FTE.
+
+1.1.46 “Good Clinical Practices” or “GCP” means the ethical and scientific
+quality standards for designing, conducting, recording, and reporting trials
+that involve the participation of human subjects as are required by applicable
+Regulatory Authorities or Law in the relevant jurisdiction. In the United
+States, GCP shall be based on Good Clinical Practices established through FDA
+guidances (including Guideline for Good Clinical Practice – ICH Harmonized
+Tripartite Guideline (ICH E6)), and, outside the United States, GCP shall be
+based on Guideline for Good Clinical Practice – ICH Harmonized Tripartite
+Guideline (ICH E6).
+
+ 
+
+-5-
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.47 “Good Laboratory Practices” or “GLP” means the then-current good
+laboratory practice standards promulgated or endorsed by the FDA, as defined in
+U.S. 21 C.F.R. Part 58 (or such other comparable regulatory standards in
+jurisdictions outside the United States, as they may be updated from time to
+time).
+
+1.1.48 “Good Manufacturing Practices” or “GMP” means all applicable standards
+relating to manufacturing practices for fine chemicals, intermediates, bulk
+products and/or finished pharmaceutical products, including (a) all applicable
+requirements detailed in the FDA’s current Good Manufacturing Practices
+regulations, U.S. 21 C.F.R. Parts 210 and 211 and “The Rules Governing Medicinal
+Products in the European Community, Volume IV, Good Manufacturing Practice for
+Medicinal Products”, as each may be amended from time to time, and (b) all
+applicable Laws promulgated by any Governmental Authority having jurisdiction
+over the Manufacture of any Product for the Field.
+
+1.1.49 “Governmental Authority” means any: (a) nation, principality, state,
+commonwealth, province, territory, county, municipality, district or other
+jurisdiction of any nature; (b) federal, state, local, municipal, foreign or
+other government; (c) governmental or quasi-governmental authority of any nature
+(including any governmental division, subdivision, department, agency, bureau,
+branch, office, commission, council, board, instrumentality, officer, official,
+representative, organization, unit, body or entity and any court or other
+tribunal); (d) multinational organization or body; or (e) individual, entity or
+body exercising, or entitled to exercise, any executive, legislative, judicial,
+administrative, regulatory, police, military or taxing authority or power of any
+nature.
+
+1.1.50 “Histogen Collaboration Intellectual Property” means any Patents or
+Know-How, or Histogen’s and/or its Affiliates’ interest therein, that is
+developed or generated by or on behalf of Histogen and/or its Affiliate(s)
+through the use of Amerimmune Know-How, Joint Collaboration Know-How, or
+materials disclosed or transferred by Amerimmune to Histogen in the conduct of
+the Collaboration during the Research Term and is necessary for the Development,
+Manufacture, and/or Commercialization of any Product(s) for the Field.
+
+1.1.51 “Histogen Indemnified Party” has the meaning set forth in Section 9.1.1,
+below.
+
+1.1.52 “Histogen Intellectual Property” means Histogen Know-How, Histogen
+Patents, Histogen Collaboration Intellectual Property, and Histogen’s interest
+in any Joint Collaboration IP, collectively.
+
+1.1.53 “Histogen Know-How” means any Know-How that is (a) Controlled by Histogen
+as of the Effective Date or during the Term, and (b) necessary or useful for the
+Development, Manufacture or Commercialization of any Product in the Field.
+
+1.1.54 “Histogen Patents” means any and all Patents that (a) are owned or
+controlled by Histogen as of the Effective Date or during the Term, and
+(b) concern the Development, Manufacture or Commercialization of any Product
+(including the composition of matter, manufacture, or any use thereof) in the
+Field. The Histogen Patents include those Patents listed on attached Schedule 2.
+
+1.1.55 “Histogen Profit Allocation” means the percentage of Profits to which
+Histogen is entitled.
+
+1.1.56 “IND” means any Investigational New Drug application, filed with the FDA
+pursuant to Part 312 of Title 21 of the U.S. Code of Federal Regulations,
+including any supplements or amendments thereto. Prior to exercise of the
+Option, references herein to “IND” shall mean the Research IND; in the event the
+Option is exercised, “IND” shall include any IND owned or controlled by either
+Party for a Product in the Field, and shall include, to the extent applicable,
+any comparable filing(s) outside the United States (such as a Clinical Trial
+Application (“CTA”) in the countries that are officially recognized as member
+states of the EU).
+
+1.1.57 “Indication” means any human disease, condition or syndrome, or sign or
+symptom of, or associated with, a human disease, condition or syndrome.
+
+1.1.58 “Initial Trial” has the meaning set forth in Section 2.1.1, below.
+
+ 
+
+-6-
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.59 “Initial Trial Report” has the meaning set forth in Section 2.5.2, below.
+
+1.1.60 “Inventions” means all inventions, whether or not patentable, that are
+designed, discovered, generated, invented or conceived by or on behalf of either
+Party or its respective Affiliates or both Parties or their respective
+Affiliates, whether solely or jointly with any Third Party, in the course of
+activities performed under this Agreement in the Field.
+
+1.1.61 “Joint Collaboration IP” means, collectively:
+
+(a) “Joint Collaboration Know-How,” which means all Know-How related to the
+Field, including physical embodiments of a Product, that is jointly created,
+invented, or otherwise made by or on behalf of both Parties or their respective
+Affiliates by at least one employee, consultant, or agent of Amerimmune and at
+least one employee, consultant, or agent of Histogen, whether solely or jointly
+with any Third Party, pursuant to the conduct of activities under the
+Collaboration at any time during the Research Term; and
+
+(b) “Joint Collaboration Patents,” which means Patents that cover any Joint
+Collaboration Know-How.
+
+1.1.62 “Joint Development Committee” or “JDC” has the meaning set forth in
+Section 3.1.1, below.
+
+1.1.63 “Joint Partnering Committee” or “JPC” has the meaning set forth in
+Section 3.3, below.
+
+1.1.64 “Know-How” means any tangible or intangible trade secrets, know-how,
+expertise, discoveries, information, Inventions, data or materials, including
+ideas, concepts, formulas, methods, procedures, designs, technologies,
+compositions, plans, applications, scientific or technical data, assays,
+manufacturing information or data, samples, chemical and biological materials
+and all derivatives, modifications, and improvements of any of the foregoing, as
+well as financial and commercial data, business and commercial information, and
+non-public information about or belonging to a Party’s customers, collaborators,
+suppliers, employees, agents, or other representatives.
+
+1.1.65 “Law” means any law, statute, rule, regulation, ordinance or other
+pronouncement having the effect of law, of any federal, national, multinational,
+state, provincial, county, city or other political subdivision, as from time to
+time enacted, repealed or amended, including Good Clinical Practices and adverse
+event reporting requirements, guidance from the International Conference on
+Harmonization or other generally accepted conventions, the FDCA and similar laws
+and regulations in countries outside the United States, and all other rules,
+regulations and requirements of the FDA and other applicable Regulatory
+Authorities.
+
+1.1.66 “License Effective Date” has the meaning set forth in Section 5.1.1,
+below.
+
+1.1.67 “Manufacture” or “Manufacturing” means, as applicable, all activities
+associated with the production, manufacture, processing, filling, packaging,
+labeling, shipping and storage of a drug product or drug substance in the Field,
+and/or any components thereof, including process and formulation development,
+process validation, stability testing, manufacturing scale-up, preclinical,
+clinical and commercial manufacture and analytical methods development and
+validation, product characterization, quality assurance and quality control
+development, testing and release.
+
+1.1.68 “Manufacturing Costs” means, with respect to a Product, the reasonable
+FTE Costs and Out-of-Pocket Costs of a Party or any of its Affiliates or
+sublicensees incurred in Manufacturing a Product, excluding Manufacturing
+Scale-Up Costs, but including:
+
+(a) to the extent that a Product is manufactured by a Party or any of its
+Affiliates or sublicensees, direct material and direct labor costs, plus
+manufacturing overhead attributable to the Product (including facility start-up
+costs, all directly incurred manufacturing variances, and a reasonable
+allocation
+
+ 
+
+-7-
+
+
+
+--------------------------------------------------------------------------------
+
+of related manufacturing administrative and facilities costs (including
+depreciation) and a reasonable allocation of the costs of failed batches to be
+further described in the applicable supply agreement, to be provided for a
+Product, but excluding costs associated with excess capacity), all determined in
+accordance with the books and records of the applicable Party or its Affiliates
+or sublicensees maintained in accordance with Accounting Standards; and
+
+(b) to the extent that a Product is Manufactured by a Third Party manufacturer,
+the Out-of-Pocket Costs paid by a Party or any of its Affiliates or sublicensees
+to the Third Party for the manufacture, supply, packaging, and labeling of a
+Product, and any reasonable Out-of-Pocket Costs and direct labor costs actually
+incurred by such Party or any of its Affiliates or sublicensees in managing or
+overseeing the Third Party relationship, determined in accordance with the books
+and records of the applicable Party or its Affiliates or sublicensees maintained
+in accordance with Accounting Standards.
+
+1.1.69 “Manufacturing Scale-Up Costs” means, with respect to a Product, the
+reasonable FTE Costs and Out-of-Pocket Costs of a Party or any of its Affiliates
+or sublicensees incurred in scaling up Manufacturing activities related to a
+Product for clinical supply, including (a) costs for process development work,
+analytical method optimization, and process validation, (b) costs for complete
+technology transfer to a commercial site (including costs for Manufacturing of
+demonstration batches on a suitable scale), and (c) Regulatory Expenses
+associated with such Manufacturing activities.
+
+1.1.70 “Marketing Expenses” means, with respect to a Product, the sum of
+Marketing Management Expenses, Advertising and Market Research Expenses, and
+Medical Education Expenses relating to such Product.
+
+1.1.71 “Marketing Management Expenses” means, with respect to a Product, FTE
+Costs arising from the management of marketing activities for such Product,
+including management and administration of managed care and national accounts
+and other activities associated with developing overall sales and marketing
+strategies; Product-related advertising, market research, and public relations;
+relationship maintenance with opinion leaders, professional societies, contract
+pricing administrators, and market information systems; education programs for
+health care professionals; governmental affairs activities for reimbursement;
+formulary acceptance; and other activities directly related to the marketing or
+promotion of such Product anywhere in the Territory.
+
+1.1.72 “Material Breach” has the meaning set forth in Section 11.4.1, below.
+
+1.1.73 “Medical Education Expenses” means, with respect to a Product, all
+Out-of-Pocket Costs specifically incurred to educate health care professionals
+licensed to practice in one or more jurisdictions in the Territory with respect
+to the Product through any means not covered as an Advertising and Marketing
+Research Expense, but including articles appearing in journals, newspapers,
+magazines, or other media; seminars, scientific exhibits, and conventions; and
+symposia, advisory boards, and opinion leader development activities; medical
+science liaison and medical affairs activities, and education grant programs.
+
+1.1.74 “NDA” means an application submitted to a Regulatory Authority for the
+marketing approval of a Product, including (a) a New Drug Application, Product
+License Application or Biologics License Application (as such capitalized terms
+are used in C.F.R. Title 21) filed with FDA or any successor applications or
+procedures, (b) a foreign equivalent of a US New Drug Application, Product
+License Application or Biologics License Application or any successor
+applications or procedures, including a Marketing Authorization Application in
+the European Union, and (c) all supplements and amendments that may be filed
+with respect to the foregoing.
+
+1.1.75“Net Sales” means, with respect to any Product, the gross amounts received
+by the Parties, their respective Affiliates, or Strategic Partners from Third
+Parties (that are not Strategic Partners) for the sale or other commercial
+disposition of such Product anywhere within the Territory (each, a “Selling
+Party”) to Third Party customers for sales of such Product, less the following
+deductions actually incurred, allowed, paid, accrued or specifically allocated
+in its financial statements in accordance with (as applicable to the Selling
+Party) Accounting Standards, for: (i) customary discounts allowed; (ii) sales
+tariffs, duties, taxes (including value added taxes), or the like required to be
+paid; (iii) amounts allowed or credited on returns; (iv) rebates and chargebacks
+or
+
+ 
+
+-8-
+
+
+
+--------------------------------------------------------------------------------
+
+retroactive price reductions actually granted; and (v) freight and insurance, to
+the extent Amerimmune, its Affiliates, or Strategic Partners, or the
+distributors of any of them, bear and specify such costs on the corresponding
+invoice.
+
+If non-monetary consideration is received by a Selling Party for any Product in
+the relevant country, Net Sales will be calculated based on the average price
+charged for such Product, as applicable, during the preceding royalty period, or
+in the absence of such sales, the fair market value of the Product, as
+applicable, as determined by the Parties in good faith. Notwithstanding the
+foregoing, Net Sales shall not be imputed to transfers of Products, as
+applicable, for use in Clinical Trials, non-clinical development activities or
+other development activities with respect to Products by or on behalf of the
+Parties, for bona fide charitable purposes or for compassionate use or for
+Product samples, if no monetary consideration is received for such transfers.
+
+If a Product is sold as part of a Combination Product (as defined below), Net
+Sales will be the product of (i) Net Sales of the Combination Product calculated
+as above (i.e., calculated as for a non-Combination Product) and (ii) the
+fraction (A/(A+B)), where:
+
+“A” is the gross invoice price in such country of the Product comprising a
+Compound as the sole therapeutically active ingredient; and
+
+“B” is the gross invoice price in such country of the other therapeutically
+active ingredients contained in the Combination Product.
+
+If “A” or “B” cannot be determined by reference to non-Combination Product sales
+as described above, then Net Sales will be calculated as above, but the gross
+invoice price in the above equation shall be determined by mutual agreement
+reached in good faith by the Parties prior to the end of the accounting period
+in question based on an equitable method of determining the same that takes into
+account, in the applicable country, variation in dosage units and the relative
+fair market value of each therapeutically active ingredient in the Combination
+Product. As used in this definition of “Net Sales,” “Combination Product” means
+a Product that contains one or more additional active ingredients (whether
+co-formulated or co-packaged) that are neither Compounds nor generic or other
+non-proprietary compositions of matter. Pharmaceutical dosage forms, adjuvants,
+and excipients shall be deemed not to be “active ingredients”.
+
+There shall be no double counting in determining the foregoing deductions from
+gross amounts invoiced to calculate Net Sales. Subject to the foregoing, the
+calculations set forth in this definition of Net Sales shall be determined in
+accordance with Accounting Standards so as to arrive at Net Sales as reported by
+the Selling Party in such Person’s financial statements.
+
+1.1.76 “Option” has the meaning set forth in Section 4.1.1, below.
+
+1.1.77 “Option Exercise Notice” has the meaning set forth in Section 4.1.2,
+below.
+
+1.1.78 “Option Exercise Window” has the meaning set forth in Section 4.1.1,
+below.
+
+1.1.79 “Option Term” means the period commencing on the Effective Date and
+ending on the first to occur of (a) Amerimmune’s exercise of the Option in
+accordance with Section 4.1, below, or (b) the expiration of the Research Term;
+provided, however, the Option Term shall not extend after 31 December 2022.
+
+1.1.80 “Out-of-Pocket Costs” means, with respect to a Product, direct expenses
+paid or payable by either Party or its Affiliates to Third Parties (other than
+employees of such Party or its Affiliates) that are specifically identifiable
+and incurred to conduct such activities for the Collaboration hereunder and have
+been recorded in accordance with the Accounting Standards.
+
+1.1.81 “Partnering” means any activity directed at identifying, negotiating, and
+concluding a commercial relationship with a Third Party to further Develop a
+Product in the Field for the ultimate purpose of Commercializing such Product in
+the Field after or in expectation of receipt of Regulatory Approval for such
+Product.
+
+ 
+
+-9-
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.82 “Patent” means (a) patents and patent applications anywhere in the world,
+(b) all divisionals, continuations, continuations in-part thereof or any other
+patent application claiming priority, or entitled to claim priority, directly or
+indirectly to (i) any such patents or patent applications or (ii) any patent or
+patent application from which such patents or patent applications claim, or is
+entitled to claim, direct or indirect priority, and (c) all patents issuing on
+any of the foregoing anywhere in the world, together with all registrations,
+reissues, re-examinations, patents of addition, renewals, patent term
+extensions, supplemental protection certificates, or extensions of any of the
+foregoing anywhere in the world.
+
+1.1.83 “Patent Costs” means costs incurred by a Party pursuant to Article VI of
+this Agreement.
+
+1.1.84 “Pre-Commercialization Expenses” means, with respect to a Product, those
+expenses incurred by either Party or its Affiliates (as detailed below) for the
+purpose of Developing the Product or reasonable out of pocket expenses directly
+connected to identifying Strategic Partners for a Product, and shall consist of
+the following expenses with respect to such Product: (a) expenses related to
+Development, including any Clinical Trial expenses; (b) Manufacturing Costs for
+supply of the Product; (c) Marketing Expenses; (d) other Pre-Commercialization
+costs; (e) Patent Costs; (f) Regulatory Maintenance Costs; and (g) Third Party
+License Costs.
+
+1.1.85 “Person” means any corporation, limited or general partnership, limited
+liability company, joint venture, trust, unincorporated association,
+governmental body, authority, bureau or agency, any other entity or body, or an
+individual.
+
+1.1.86 “Phase I Study” means a human clinical trial of a product, the principal
+purpose of which is a preliminary determination of safety, tolerability, and
+pharmacokinetics in study subjects where potential pharmacological activity may
+be determined or similar clinical study prescribed by the Regulatory
+Authorities, from time to time, pursuant to applicable Law or otherwise,
+including for example the trials referred to in 21 C.F.R. §312.21(a), as amended
+(or the non-United States equivalent thereof).
+
+1.1.87 “Phase II Study” means a human clinical trial intended to explore a
+variety of doses, dose response, and duration of effect, and to generate
+evidence of clinical safety and effectiveness for a particular Indication or
+Indications in a target patient population, or a similar clinical study
+prescribed by the relevant Regulatory Authorities, from time to time, pursuant
+to applicable Law or otherwise, including for example the trials referred to in
+21 C.F.R. §312.21(b), as amended (or the non-United States equivalent thereof).
+
+1.1.88 “Phase III Study” means a human clinical trial of a product in any
+country that would satisfy the requirements of 21 C.F.R. §312.21(c), as amended
+(or the non-United States equivalent thereof) and is intended to (a) establish
+that the product is safe and efficacious for its intended use, (b) define
+contraindications, warnings, precautions and adverse reactions that are
+associated with the product in the dosage range to be prescribed, and
+(c) support Regulatory Approval for such product.
+
+1.1.89 “Phase IV Study” means a human clinical trial of a product which is
+(a) conducted to satisfy a requirement of a Regulatory Authority in order to
+maintain a Regulatory Approval or (b) conducted voluntarily after Regulatory
+Approval of the product has been obtained from an appropriate Regulatory
+Authority for enhancing marketing or scientific knowledge of an approved
+indication.
+
+1.1.90 “Pivotal Clinical Trial” means a human clinical trial of a Product on a
+sufficient number of subjects that, prior to commencement of the trial,
+satisfies both of the following: such trial (a) is designed to establish that
+such Product has an acceptable safety and efficacy profile for its intended use,
+and to determine warnings, precautions, and adverse reactions that are
+associated with such Product in the dosage range to be prescribed, which trial
+is intended to support Regulatory Approval of such Product by the FDA or EMA,
+and (b) such trial is a registration trial designed to be sufficient to support
+the filing of an application for a Regulatory Approval for such Product in the
+U.S. or another country or some or all of an extra-national territory, as
+evidenced by (i) an agreement with or statement from the FDA or the EMA on a
+special protocol assessment or equivalent, or (ii) other guidance or minutes
+issued by the FDA or EMA, for such registration trial.
+
+ 
+
+-10-
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.91 “Press Release” has the meaning set forth in Section 8.5.1, below, a
+mutually agreed form of which is attached hereto as Exhibit A.
+
+1.1.92 “Product” means any pharmaceutical preparation, dosage form, or delivery
+system containing as an active pharmaceutical ingredient (i) Emricasan or
+(ii) any other caspase modulator owned or controlled by Histogen as of the
+Effective Date or at any time during the Term, in each case alone or in
+combination with another active pharmaceutical ingredient except as identified
+on Schedule 1.172, as it may be amended by Histogen from time to time to reflect
+caspase modulators first owned or controlled by Histogen after the Effective
+Date.
+
+1.1.93 “Profits” means, with respect to any Calendar Quarter or Calendar Year:
+the sum of (x) any and all profits resulting from Strategic Partnering and/or
+the Development and Commercialization of a Product, which shall be equal to (a)
+the sum of (i) Net Sales of Products, plus (ii) Additional Revenue, less (to the
+extent not previously allocated) (b) (i) Development Costs,
+(ii) Pre-Commercialization Expenses, (iii) for any Product that is
+Commercialized, Manufacturing Costs, (iv) Manufacturing Scale-Up Costs, (v)
+Marketing Expenses, (vi) Regulatory Maintenance Costs, and (vii) Third Party
+License Costs; and (y) the Transaction Value from any Transaction.
+
+1.1.94 “Profit Allocation” means the Histogen Profit Allocation or the
+Amerimmune Profit Allocation, as applicable.
+
+1.1.95 “Prosecution” or “Prosecute” means the filing, preparation, prosecution
+and maintenance of Patents, including any and all pre-grant proceedings before
+any patent authority, such as interferences.
+
+1.1.96 “Publication” means any publication in a scientific journal, any
+scientific abstract to be presented to any audience, any presentation at any
+scientific conference, including slides and texts of oral or other public
+presentations, any other scientific presentation and any other oral, written or
+electronic scientific disclosure directed to any audience that pertains to any
+Product, or the use of any of Product, or the data or results from any work
+under the Research Program.
+
+1.1.97 “Qualifying Strategic Partnership” means a Strategic Partnership pursuant
+to which the Third Party who is Partnering with Amerimmune is obligated to pay
+to Amerimmune consideration that equals or exceeds One Million dollars
+($1,000,000), exclusive of any payment or reimbursement to Amerimmune for past,
+current, or future expenses incurred by or on behalf of Amerimmune in connection
+with the Development or Manufacturing of the Product(s) that are the subject of
+such Strategic Partnership.
+
+1.1.98 “Receiving Party” has the meaning set forth in Section 8.1, below.
+
+1.1.99 “Regulatory Interactions” means (i) monitoring and coordinating all
+regulatory actions, preparing, submitting, and coordinating all communications
+and filings with, and submissions to, any Regulatory Authority with respect to
+Emricasan or any other Product, and (ii) interfacing, corresponding, and meeting
+with any Regulatory Authority with respect to Emricasan and other Products.
+
+1.1.100 “Regulatory Approval” means all approvals of the applicable Regulatory
+Authority necessary for the commercial marketing and sale of a product for a
+particular indication in a country (including separate Regulatory Authority
+pricing or reimbursement approvals whether or not legally required in order to
+sell the product in such country, it being understood that, as of the Effective
+Date, no such Regulatory Authority pricing or reimbursement approval requirement
+is applicable in the United States).
+
+1.1.101 “Regulatory Authority” means a federal, national, multinational, state,
+provincial or local regulatory agency, department, bureau or other governmental
+entity with authority over the testing, manufacture, use, storage, import,
+promotion, marketing or sale (including pricing and reimbursement approval) of a
+product in a country or territory.
+
+ 
+
+-11-
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.102 “Regulatory Documentation” means, with respect to the Collaboration, all
+INDs, NDAs, and other regulatory applications submitted to any Regulatory
+Authority, Regulatory Approvals (if any), pre-clinical and clinical data and
+information, regulatory materials, drug dossiers, master files (including Drug
+Master Files, as defined in 21 C.F.R. 314.420 and any non-United States
+equivalents), and any other data, reports, records, regulatory correspondence
+and other materials relating to Development or Regulatory Approval of the
+Licensed Products, or required to Manufacture, distribute or sell the Licensed
+Products, including any information that relates to pharmacology, toxicology,
+CMC, Manufacturing and controls data, batch records, safety and efficacy, and
+any safety database.
+
+1.1.103 “Regulatory Expenses” means, with respect to a Product, all
+Out-of-Pocket Costs incurred by or on behalf of a Party in connection with the
+preparation and filing of regulatory submissions for a Product and obtaining of
+Regulatory Approvals and any applicable governmental price and reimbursement
+approvals.
+
+1.1.104 “Regulatory Maintenance Costs” means Out-of-Pocket Costs and FTE Costs
+for maintenance fees relating to Regulatory Approvals for a Product, and
+personnel engaged in the filing and maintenance of Regulatory Approvals.
+
+1.1.105 “Representative” has the meaning set forth in Section 3.5.1, below.
+
+1.1.106 “Research Field” means the treatment, prophylaxis, or amelioration of
+COVID-19 (caused by SARS-CoV-2) in humans.
+
+1.1.107 “Research IND” means the IND filed by and in the name of Histogen on or
+before the Effective Date concerning the use of Emricasan in the Research Field,
+and any extension thereof (i) filed by and in the name of Histogen if filed
+prior to consummation of a Qualifying Strategic Partnership or (ii) by and in
+the name of a Strategic Partner after consummation of a Qualifying Strategic
+Partnership.
+
+1.1.108 “Research Program” means a program comprising Development activities by
+and on behalf of Amerimmune, Histogen, and their Affiliates directed to
+Emricasan solely in the Field.
+
+1.1.109 “Research Term” means the period commencing on the Effective Date and,
+unless earlier terminated in accordance with this Agreement, ending on the
+earlier of (a) one hundred eighty (180) days after Amerimmune delivers the final
+Phase 2 Initial Trial Report to the JDC, (b) December 31, 2022, or any permitted
+extension thereto, and (c) discontinuation of the Research Program.
+
+1.1.110 “Research Term Extension” has the meaning set forth in Section 2.1.2,
+below.
+
+1.1.111 “Right of Reference or Use” means a “Right of Reference or Use” as that
+term is defined in 21 C.F.R. §314.3(b), and any non-United States equivalents.
+
+1.1.112 “Strategic Partner” means any Third Party to whom Amerimmune or any of
+its Affiliates or any other Strategic Partner grants a sublicense under this
+Agreement with respect to the Development, Manufacture, or Commercialization of
+a Product, in each case excluding (a) Third Party contractors and (b) wholesale
+distributors or any other Third Party that purchases a Product in an
+arm’s-length transaction to Develop, Manufacture or Commercialize the Product.
+
+1.1.113 “Strategic Partnership” means a written agreement between Amerimmune and
+a Third Party regarding Partnering of one or more Products in the Research Field
+and/or Commercial Field in any country in the Territory pursuant to which the
+Third Party is obligated to pay to Amerimmune consideration.
+
+1.1.114 “Suspension Period” means a period not to exceed one hundred twenty
+(120) days after execution of this Agreement during which Amerimmune shall have
+the right to cease its Development activities under the Research Program.
+
+ 
+
+-12-
+
+
+
+--------------------------------------------------------------------------------
+
+1.1.115 “Term” has the meaning set forth in Section 11.1, below.
+
+1.1.116 “Term Sheet” means that certain “Term Sheet” entered into by the Parties
+and effective as of 21 July 2020.
+
+1.1.117 “Territory” means the entire world.
+
+1.1.118 “Third Party” means any Person other than a Party or any of a Party’s
+respective Affiliates.
+
+1.1.119 “Third Party License” has the meaning set forth in Section 7.5.2, below.
+
+1.1.120 “Third Party License Costs” means Out-of-Pocket Costs paid to Third
+Parties pursuant to Section 7.5.3 of this Agreement for a Product.
+
+1.1.121 “Transaction” means any direct or indirect merger, consolidation, joint
+venture, partnership (including any Strategic Partnership), spin-off, split-off,
+business combination, tender or exchange offer, recapitalization, acquisition,
+sale, distribution, transfer or other disposition of assets or equity interests,
+or other transaction, involving all or a substantial portion of the business,
+assets or equity interests of Amerimmune and/or any of its Affiliates, or any
+right or option to acquire any of the foregoing, in one or more transactions.
+
+1.1.122 “Transaction Value” means the total proceeds and other consideration
+paid or received, or to be paid or received, directly or indirectly, in
+connection with or in anticipation of a Transaction (which consideration shall
+be deemed to include amounts in escrow), including, without limitation, cash,
+notes, securities, and other property received or to be received by Amerimmune
+or any of its Affiliates, creditors or security holders (including, without
+limitation, the holders of convertible securities, options, warrants, stock
+appreciation rights or similar rights, whether or not vested); deferred
+non-contingent payments (such as installment payments); amounts payable under
+consulting agreements, above-market employment contracts, non-compete or
+severance agreements, employee benefit plans, reimbursement for taxes or similar
+arrangements; Contingent Payments (as defined below); and, in the case of a
+partnership, joint venture or similar structure, the gross value of all cash,
+securities, assets and other consideration contributed, invested, committed, or
+otherwise made available by Amerimmune or any other parties to such partnership,
+joint venture or similar structure. The Transaction Value shall be calculated as
+if 100% of the equity interests of Amerimmune on a fully diluted basis had been
+sold by dividing the total consideration involved in a Transaction by the
+percentage of ownership which is sold. The Transaction Value shall include the
+aggregate principal amount of any debt, pension liabilities, guarantees and any
+other liabilities or obligations of Amerimmune or any of its affiliates or
+security holders (i) retired, refinanced, restructured, redeemed, decreased,
+repaid or extinguished in connection with or anticipation of a Transaction or
+(ii) assumed in an acquisition of assets or which remain outstanding at the time
+of closing in all other cases. If any cash or other assets of Amerimmune and/or
+any of its subsidiaries or affiliates are sold or otherwise transferred to
+another party after the date hereof (including, without limitation, any
+dividends, distributions or other amounts paid to option or other security
+holders, amounts paid to repurchase any securities, or transaction-related bonus
+payments made to employees), or are retained after the consummation of the
+Transaction, then the Transaction Value will be increased to reflect the fair
+market value of any such assets.
+
+1.1.123 “Trial Results” means any Data or other results generated during the
+performance of or in connection with a Clinical Trial conducted as part of the
+Research Program, including the Initial Trials.
+
+1.1.124 “United States” or “U.S.” means the United States of America and all of
+its territories and possessions, including Puerto Rico.
+
+1.2 Interpretation; Construction. The captions to the several Articles and
+Sections of this Agreement are included only for convenience of reference and
+shall not in any way affect the construction of, or be taken into consideration
+in interpreting, this Agreement. In this Agreement, unless the context requires
+otherwise, (a) the word “including” shall be deemed to be followed by the phrase
+“without limitation” or like expression, whether or not followed by the same;
+(b) references to the singular shall include the plural and vice versa;
+(c) references to
+
+ 
+
+-13-
+
+
+
+--------------------------------------------------------------------------------
+
+masculine, feminine, and neuter pronouns and expressions shall be
+interchangeable; (d) the words “herein” or “hereunder” relate to this Agreement;
+(e) “or” is disjunctive but not necessarily exclusive; (f) the word “will” shall
+be construed to have the same meaning and effect as the word “shall”; and
+(g) all references to “dollars” or “$” herein shall mean U.S. Dollars. Each
+Party represents that it has been represented by legal counsel in connection
+with this Agreement and acknowledges that it has participated in the drafting
+hereof. In interpreting and applying the terms and provisions of this Agreement,
+the Parties agree that no presumption will apply against the Party which drafted
+such terms and provisions.
+
+ARTICLE II
+
+COLLABORATIVE DEVELOPMENT; RESEARCH PROGRAM; RESEARCH LICENSE
+
+2.1 Scope and Collaboration Overview. Pursuant to this Agreement and as further
+provided in this Article II, during the Research Term, Amerimmune, at its
+expense and in collaboration with Histogen, (a) shall conduct the Research
+Program in the Research Field using commercially reasonable efforts and shall
+provide regular updates to Histogen at JDC meetings in accordance with
+Article IV below, together with all material data and information in
+Amerimmune’s possession relating to Emricasan, and (b) subject to oversight by
+the JDC and Article III, below, shall be responsible for the research strategy
+and the conduct of activities under each Research Program. The activities
+conducted pursuant to this Article II and the activities performed by a Party or
+the Parties relating to the Research Program, and any Commercialization as
+permitted and overseen by the JPC or a Strategic Partner pursuant to Strategic
+Partnership, shall be the “Collaboration”.
+
+2.1.1 Amerimmune Responsibility for Development.
+
+(a) Commencing on the Effective Date, during the Research Term Amerimmune, will
+lead the Development activities in collaboration with Histogen, conduct
+Development activities with respect to Emricasan with the goal of progressing
+Emricasan through a Phase I Study and a Phase 2 Study in the Research Field (the
+“Initial Trials”).
+
+(b) Amerimmune shall be responsible for conducting the Clinical Trials,
+including, the Initial Trials, and including providing human resources,
+coordinating with its network of clinical investigators, establishing study
+sites, engaging a clinical research organization, if part of the clinical
+development plan, and patient enrollment, pursuant to a Development Plan for
+Emricasan. Amerimmune, in collaboration with Histogen, shall prepare and submit
+to the JDC for approval a Development Plan for the Initial Trials. Once
+approved, a Development Plan may be amended from time to time by the JDC or
+otherwise by agreement of the Parties. Furthermore, Amerimmune may amend a
+Development Plan from time to time, provided that such amendment would not
+impose any obligation on Histogen beyond those for which Histogen is responsible
+or otherwise diminish Histogen’s rights under this Agreement or the then-current
+Development Plan.
+
+(c) Amerimmune shall have the right, after discussing in the JDC and by so
+informing Histogen in writing in advance, to cease or suspend its Research
+Program activities at any time during the Research Term for one Suspension
+Period; provided, however, that a cessation or suspension for longer than the
+Suspension Period shall automatically terminate this Agreement with immediate
+effect on the day following the last day of the Suspension Period. If Amerimmune
+ends the Suspension Period before the 120th of the Suspension Period and
+continues to conduct, without stoppage, the Research Program, then the Research
+Term shall be deemed to be in progress until it expires or is otherwise
+terminated in accordance with this Agreement.
+
+(d) During the Research Term, in accordance with Article III below, Amerimmune
+shall collaborate with Histogen, on a regular basis at JDC meetings, the status
+of the Research Program, progress made to date thereunder, and future plans
+under the Research Program, including discussing with Histogen material
+developments in or new data or information in Amerimmune’s possession relating
+to the Research Program made since the preceding JDC meeting.
+
+2.1.2 Extension of Research Term. Amerimmune may, at its election and after
+discussing in the JDC, as long as both parties are in mutual agreement, extend
+the Research Term for up to three (3) one (1) year
+
+ 
+
+-14-
+
+
+
+--------------------------------------------------------------------------------
+
+extension periods (each being a “Research Term Extension”, and each to run
+consecutively after the end of the then-current Research Term) by giving notice
+to Amerimmune of each such election at least thirty (30) days prior to the
+expiration of the then-current Research Term.
+
+2.2 [intentionally left blank]
+
+2.3 Supply of Emricasan.
+
+2.3.1 Initial Trials. To facilitate conduct of the Initial Trials, after the
+Effective Date and promptly following a written request from Amerimmune,
+Histogen shall provide Amerimmune (or clinical trial sites designated by
+Amerimmune), at no cost to Amerimmune, with reasonable quantities of clinical
+Emricasan to conduct the Initial Trials, subject to the availability of
+Emricasan to Histogen.
+
+2.3.2 Additional Development. To facilitate conduct of the Research Program
+beyond the conduct of the Initial Trials, if available and promptly following a
+written request from Amerimmune, Histogen shall provide Amerimmune with
+reasonable quantities of clinical Emricasan for the conduct of such additional
+Clinical Trials as the JDC approves. Histogen shall be entitled to charge
+Amerimmune a reasonable price for such additional Emricasan for such additional
+Clinical Trials (not to exceed Histogen’s documented costs for each dose from a
+Third Party supplier, plus Twenty Five percent (25%) of Histogen’s documented
+cost for each dose), absent the Parties entering into a written agreement to the
+contrary.
+
+2.3.3 Limitations. Amerimmune agrees that Emricasan provided by Histogen shall
+be used only in furtherance of the Research Program and pursuant to Amerimmune’s
+rights and obligations under this Agreement. The Parties agree that Emricasan
+shall be used in compliance with applicable Law and the terms and conditions of
+this Agreement. Notwithstanding anything to the contrary herein, Histogen’s
+obligation to provide clinical Emricasan under this Agreement shall not extend
+to more Emricasan than is reasonably available to Histogen.
+
+2.4 Regulatory Matters.
+
+2.4.1 Initial Trial IND. To facilitate conduct of the Initial Trial, prior to
+the start of the Research Program, Histogen, in collaboration with Amerimmune,
+shall have filed a Research IND with the FDA seeking approval of a clinical
+trial protocol to govern the conduct of the Initial Trial.
+
+2.4.2 Research Program. During the Research Program and until such time as a
+Strategic Partner assumes responsibility pursuant to a Qualifying Strategic
+Partnership, Histogen, in collaboration with Amerimmune, shall be responsible
+for and shall control all Regulatory Interactions relating to any Phase I or
+Phase II Study of Emricasan conducted pursuant to the Research Program,
+including the Initial Trials.
+
+2.4.3 Transfer of Regulatory Interactions. After Amerimmune exercises the Option
+and a Strategic Partner assumes responsibility for Development of Emricasan
+pursuant to a Qualifying Strategic Partnership, the Parties shall each transfer
+any IND(s) for the Field to such Strategic Partner and promptly complete all
+relevant activities related to such IND(s) as required for the Strategic Partner
+to assume regulatory ownership thereof. Each of Histogen and Amerimmune shall
+provide such Strategic Partner in a Qualifying Strategic Partnership with all
+relevant clinical and non-clinical data reasonably requested by the Strategic
+Partner or a Regulatory Authority, including CMC, pharmacology, and toxicology
+Data in its possession with respect to any Product, including Emricasan. Such
+Strategic Partner shall be deemed a third party beneficiary with respect to this
+Agreement.
+
+2.4.4 Review of Regulatory Documentation. During the Research Term, for so long
+as Histogen has responsibility under Section 2.4.2, above, for Regulatory
+Interactions, Histogen shall (i) keep the JDC reasonably informed of all
+material Regulatory Interactions, preparation of regulatory documentation,
+Regulatory Authority review thereof, annual reports, and the like, and
+(ii) afford Amerimmune a reasonable opportunity to review and comment thereon
+and to provide meaningful input with respect to responses to any Regulatory
+Authority. Once any of Histogen’s responsibility under Section 2.4.2, above, is
+transferred to Amerimmune or a
+
+ 
+
+-15-
+
+
+
+--------------------------------------------------------------------------------
+
+Strategic Partner, Amerimmune or the Strategic Partner, as the case may be,
+shall (i) keep Histogen reasonably informed of all material Regulatory
+Interactions, preparation of regulatory documentation, Regulatory Authority
+review thereof, annual reports, and the like, and (ii) provide Histogen with a
+reasonable opportunity to review and comment thereon and to provide meaningful
+input with respect to responses to any Regulatory Authority.
+
+2.4.5 Meeting Participation. Amerimmune shall have the right to have an
+experienced representative participate as an observer in material or scheduled
+meetings, video conferences, and any teleconferences with any Regulatory
+Authority, and shall be provided with advance access to Histogen’s material
+documentation prepared for such meetings. Histogen shall have the same right to
+participate as an observer and have advance access to material documentation
+prepared for such meetings after it makes a transfer of any regulatory authority
+or responsibility under Section 2.4.3, above.
+
+2.4.6 Submission Review. While Histogen maintains responsibility for Regulatory
+Interactions, prior to submission of material correspondence to any Regulatory
+Authority with respect to a Product, Histogen shall, sufficiently in advance for
+Amerimmune to review and comment, provide Amerimmune any material correspondence
+intended for submission to the Regulatory Authority. Histogen shall also provide
+Amerimmune with a copy of any material correspondence with a Regulatory
+Authority relating to Development of any Products, and consider and respond
+within a reasonable time frame to all reasonable inquiries made by Amerimmune
+with respect thereto. After it makes a transfer of any regulatory authority or
+responsibility under Section 2.4.3, above, Histogen shall have the same right to
+review and comment on any material correspondence intended for submission to the
+Regulatory Authority, and Histogen shall receive a copy of any material
+correspondence with a Regulatory Authority relating to Development of any
+Products and shall consider and respond within a reasonable time frame to all
+reasonable inquiries with respect thereto.
+
+2.5 Reports; Results.
+
+2.5.1 Records. Amerimmune shall maintain, and shall require its Third Party
+contractors to maintain in all material respects, complete, current, and
+accurate records of all Development activities conducted by it under this
+Agreement, and all Trial Results and other data and information resulting from
+the Research Program and any Clinical Trials, including all Phase I or Phase II
+Studies conducted pursuant thereto. Such records shall fully and properly
+reflect all work done and results achieved in the performance of the Development
+activities in good scientific manner appropriate for regulatory and patent
+purposes. Amerimmune shall document in writing all non-clinical studies and
+Clinical Trials conducted pursuant to the Research Program, and Histogen shall
+have the right to review and copy such records at reasonable times, as
+reasonably requested by Histogen.
+
+2.5.2 Reports. At each meeting of the JDC held pursuant to Section 3.5, below,
+Amerimmune shall provide the Histogen a written progress report summary on the
+status of its activities under the Research Program, including data summaries of
+Trial Results, it being understood that Histogen may reasonably request
+additional information regarding any such written progress report summary. Upon
+the conclusion of any Clinical Trial conducted pursuant to the Research Program,
+including the Initial Trials, Amerimmune shall promptly prepare and submit to
+the JDC for review and approval a final report detailing the conduct of and the
+Trial Results obtained, and conclusions drawn, from such Clinical Trial,
+including the Initial Trials (as relates to either of the Initial Trials, the
+“Initial Trial Report(s)”).
+
+2.5.3 Trial Results as Confidential information. Trial Results will be deemed to
+be the Confidential Information of each Party. In the absence of a written
+agreement to the contrary, upon the expiration or termination of the Term,
+either Party shall be free to use the Trial Results as they would use other
+Confidential Information owned by them, subject to each Party’s Intellectual
+Property rights therein.
+
+2.6 No Representation. Neither Party makes any representation, warranty, or
+guarantee that the Collaboration will be successful, or that any other
+particular results will be achieved with respect to the Collaboration or
+Research Program or any Product.
+
+2.7 Subcontracting. Subject to the terms of this Agreement, as applicable,
+Amerimmune shall have the right to engage Affiliates or Third Party
+subcontractors to perform some or all of its obligations under this Agreement.
+Any such Affiliate or subcontractor shall meet the qualifications typically
+required by such Party for
+
+ 
+
+-16-
+
+
+
+--------------------------------------------------------------------------------
+
+the performance of work similar in scope and complexity to the subcontracted
+activity and perform such work consistent with the terms of this Agreement;
+provided, however, that Amerimmune shall remain fully responsible and obligated
+for any activities it subcontracts under this Agreement. Amerimmune will inform
+the JDC in the event it elects to subcontract any of its obligations in
+connection with the Research Program, and if requested by Histogen, Amerimmune
+agrees to provide Histogen further information regarding any subcontractor. Any
+subcontract of all or substantially all of Amerimmune’s obligations under the
+Agreement must be unanimously approved by the JDC.
+
+2.8 Research License. Histogen hereby grants Amerimmune, and Amerimmune accepts,
+a fully-paid, exclusive research license under Histogen Intellectual Property to
+Develop Emricasan in the Research Field throughout the Territory during the
+Research Term (the “Research License”). Upon expiration or termination of the
+Research Term or this Agreement, the Research License shall automatically
+terminate. Except as otherwise provided under this Agreement, any Emricasan
+delivered by Histogen to Amerimmune shall remain the sole property of Histogen,
+shall only be used only in furtherance of the Research Program, and shall be
+returned to Histogen or destroyed, in Histogen’s sole discretion, upon the first
+to occur of: termination of this Agreement (subject to Article X, below); or
+upon the discontinuation of the Research Program. Amerimmune shall not permit
+Emricasan to be used by or delivered to or for the benefit of any Third Party
+without the prior written consent of Histogen unless such Third Party is a
+Strategic Partner under a Qualifying Strategic Partnership or Third Party
+subcontractor as set forth above.
+
+2.9 Tech Transfer. As soon as reasonably practical after the Effective Date and
+thereafter upon Amerimmune’s reasonable request during the Research Term,
+Histogen shall transfer to Amerimmune, at no cost to Amerimmune, copies of all
+Histogen Know-How that are related to the Product and necessary for the Clinical
+Trial(s), to the extent not previously transferred to Amerimmune. In addition,
+Histogen shall provide reasonable assistance, including making its personnel
+reasonably available for meetings or teleconferences to answer questions and
+provide technical support to Amerimmune with respect to Development and
+regulatory matters and the use of such transferred Know-How in the Development
+of Products. The Out-of-Pocket Costs, as indicated with reasonable supporting
+evidence, incurred by Histogen in connection with such assistance shall be
+reimbursed to Histogen from any monies from Third Parties (including without
+limitation, any grants).
+
+2.10 Grant Applications. During the Research Term, Amerimmune and Histogen agree
+to cooperate with regard to submitting grant applications or the like to Third
+Party funding agencies in order to obtain financial support for the Research
+Program, including the conduct of the Initial Trials and such additional
+Clinical Trials as the Parties mutually agree to undertake.
+
+ARTICLE III
+
+GOVERNANCE; COLLABORATION
+
+3.1 General.
+
+3.1.1 Governance Committees. The Parties shall establish (a) a Joint Development
+Committee (“JDC”) to oversee Development of Emricasan in the Research Field
+during the Research Term and (b) a Joint Partnering Committee (“JPC”) to oversee
+Commercialization activities for the Products. The JDC and JPC shall have
+decision-making authority with respect to the matters within its purview to the
+extent expressly and as more specifically provided herein, it being understood
+and agreed that with respect to any Product that becomes subject to a Qualifying
+Strategic Partnership, neither the JDC nor JPC shall have any review or
+decision-making authority as of the effective date thereof with respect to such
+Product(s).
+
+3.1.2 Subcommittees. From time to time, each Committee may establish
+subcommittees to oversee particular projects or activities, as it deems
+necessary or advisable (each, a “Subcommittee”). Each Subcommittee shall consist
+of such number of members as the applicable Committee determines is appropriate
+from time to time. Such members shall be individuals with expertise and
+responsibilities in the subject matter area(s) to be overseen by the particular
+Subcommittee. Any Subcommittee shall operate under the same principles as set
+forth in this Article III for its governing Committee.
+
+ 
+
+-17-
+
+
+
+--------------------------------------------------------------------------------
+
+3.2 Joint Development Committee.
+
+3.2.1 Establishment. Within ten (10) days following the Effective Date,
+Amerimmune and Histogen shall establish the JDC. The JDC shall have oversight
+over all Development activities conducted by or on behalf of Amerimmune as part
+of the Research Program, subject to Sections 3.6 and 3.7, below.
+
+3.2.2 Duties. The JDC shall:
+
+(a) manage the strategic direction of the Research Program, and to update the
+same from time to time as mutually agreed;
+
+(b) oversee implementation of the Research Program in accordance with this
+Agreement;
+
+(c) provide a forum for the Parties (i) to discuss the objectives of the
+Research Program; and (ii) to exchange and review scientific information and
+data relating to the activities being conducted under the Research Program;
+
+(d) review and approve all Development plans for the Research Program and any
+proposed updates or amendments to such Development plans in the Research Field,
+and propose revisions to each of such Development plans in the Research Field as
+needed;
+
+(e) oversee the implementation of the Research Program and Development of
+Emricasan (including evaluation of clinical trial protocols and review of the
+conduct of Clinical Trials conducted pursuant to the Research Program);
+
+(f) oversee and approve the overall strategy and positioning of all material
+submissions and filings for Emricasan with the applicable Regulatory Authorities
+in the Research Field;
+
+(g) review and approve the content of any IND for Emricasan or other clinical
+trial protocol or other submission to the FDA in respect of a Phase I or Phase
+II Study to be conducted pursuant to the Research Program;
+
+(h) provide a forum for the Parties to share information with respect to
+Development of Emricasan in the Research Field, including reviewing and
+commenting on updates on such Development;
+
+(i) review and monitor progress of the Research Program and serve as a forum for
+exchanging information and facilitating discussions regarding the conduct of the
+Research Program;
+
+(j) provide a forum for the Parties to discuss whether to conduct additional
+Development activities for a Product other than Emricasan in the Research Field;
+
+(k) oversee, review, and coordinate process research and development activities
+(including Manufacturing and formulation development activities) for Emricasan
+in the Research Field;
+
+(l) oversee, review and coordinate the Parties’ activities with respect to
+Manufacturing of Emricasan for Development purposes in the Research Field,
+including discussion, review, and implementation of any supply plans pursuant to
+which, if necessary, a Third Party will Manufacture and supply Emricasan to
+Amerimmune for purposes of conducting the Research Program;
+
+(m) develop and approve a publication plan for any Publication concerning use of
+Emricasan in the Research Field in accordance with Section 8.6, below, and
+review and approve in advance of the submission any such proposed Publication;
+
+ 
+
+-18-
+
+
+
+--------------------------------------------------------------------------------
+
+(n) review and approve any grant application or the like that is prepared by
+Amerimmune or Amerimmune and Histogen to seek funding or other award from a
+Third Party in order to obtain financial support for the Research Program,
+including the conduct of the Initial Trials and/or such additional Clinical
+Trials as the Parties mutually agree to undertake;
+
+(o) discuss and attempt to resolve any disputes in the JDC; and
+
+(p) perform such other duties as are specifically assigned to the JDC under this
+Agreement.
+
+3.2.3 Dissolution. Unless the Parties otherwise agree in writing, the JDC shall
+be dissolved and its activities and authority terminated upon the first to occur
+of (i) expiration or termination of the Research Program or (ii) a Strategic
+Partner assumes responsibility for Development of Emricasan pursuant to a
+Qualifying Strategic Partnership and all other tasks of the JDC have been
+discharged or are no longer needed.
+
+3.3 Joint Partnering Committee.
+
+3.3.1 Establishment. Within thirty (30) days of the Effective Date, the Parties
+shall establish the JPC. The Parties intend that the JPC shall have the
+responsibility for overseeing the Partnering of Products pursuant to the terms
+of this Agreement.
+
+3.3.2 Duties. The JPC shall:
+
+(a) review and approve Partnering plans presented from time to time by
+Amerimmune or Histogen with respect to Products in the Field;
+
+(b) oversee implementation of any Partnering plan in the Field;
+
+(c) review and coordinate the Partnering activities of Histogen and Amerimmune
+in the Field with respect to Products;
+
+(d) review and unanimously approve in writing any proposed Strategic Partnership
+in the Commercial Field with respect to Products, and any deadlock or other
+failure to achieve unanimity with regard to any proposed Strategic Partnership
+shall not be subject to any dispute resolution mechanism provided in this
+Agreement, except that either Party may elect to escalate the matter to the
+Chief Executive Officers of the Parties for attempted resolution in accordance
+with Section 12.1, below; provided, however, that if such Chief Executive
+Officers are unable to approve the proposed Strategic Partnership, the proposed
+Strategic Partnership will be deemed to not approved;
+
+(e) have such other Partnering responsibilities as may be mutually agreed by the
+Parties from time to time. For purposes of clarity, the JPC shall not have any
+authority beyond the specific matters set forth in this Section. In any case
+where a matter within the JPC’s authority arises, the JPC shall convene a
+meeting and consider such matter as soon as reasonably practicable, but in no
+event later than ten (10) business days after the matter is first brought to the
+JPC’s attention (or, if earlier, at the next regularly scheduled JPC meeting);
+and
+
+(f) identify Third Parties that may assist with identifying one or more
+Strategic Partners.
+
+3.4 Alliance Managers. Each Party shall appoint one designated representative to
+serve as an alliance manager (“Alliance Manager”) with responsibility for being
+the primary point of contact between the Parties with respect to the
+Collaboration. The Alliance Managers shall attend JDC and JPC meetings, as
+necessary, as non-voting observers. Nothing herein shall prohibit a Party from
+appointing its Alliance Manager as a member of one or more Committees.
+
+ 
+
+-19-
+
+
+
+--------------------------------------------------------------------------------
+
+3.5 General Committee Membership and Procedures.
+
+3.5.1 Committee Membership. The JDC and JPC shall each be composed of two
+(2) representatives from each of Histogen and Amerimmune (each a
+“Representative”). Each Committee representative shall be of the seniority and
+experience appropriate for service on the applicable Committee in light of the
+functions, responsibilities, and authority of the Committee. Each Party may
+replace any of its Representatives on any Committee at any time by so informing
+the other Party in writing at least five (5) business days in advance of the
+next meeting of the particular Committee. Each Committee shall appoint a
+Committee member as chairperson from among its members. Within ten (10) business
+days following each Committee meeting, the chairperson of each Committee shall
+circulate to all members of that Committee a draft of the minutes of such
+meeting. The Representatives of that Committee shall then have five (5) business
+days after receiving such draft minutes to provide comments in writing to the
+Committee chairperson. If Representatives of that Committee do not submit
+comments within the applicable comment period, then the draft minutes shall be
+deemed final. If comments are timely submitted, then following incorporation or
+resolution of such comments, the chairperson of that Committee shall issue final
+minutes.
+
+3.5.2 Committee Meetings.
+
+(a) The JDC and JPC shall hold an initial joint meeting within ten (10) business
+days after the Effective Date or as otherwise agreed by the Parties. Thereafter,
+each Committee shall meet at least monthly, unless the respective Committee
+members otherwise agree. All Committee meetings shall be conducted in person or
+by telephone or televideo conference, unless otherwise determined by the
+applicable Committee.
+
+(b) Unless otherwise agreed by the Parties, all in-person meetings for any
+Committee shall be held at such locations as the Committee chairperson
+determines. A reasonable number of other representatives of a Party (not to
+exceed three (3)) may attend any Committee meeting as non-voting observers;
+provided, that such additional representatives are under obligations of
+confidentiality and non-use applicable to the Confidential Information of the
+other Party that are at least as stringent as those set forth in Article VIII,
+below; and provided further that the Parties, reasonably in advance of the
+applicable Committee meeting, approve the list of non-voting observers to attend
+such meeting. Each Party shall be responsible for all of its own personnel and
+travel costs and expenses relating to participation in Committee meetings. The
+first scheduled meeting of the JPC shall be held no later than thirty (30) days
+after the Effective Date unless otherwise agreed by the Parties. The JPC shall
+disband upon the last to occur of: expiration or termination of the Research
+Program; expiration or termination of this Agreement; or the date that the
+Parties have received any and all consideration due under the last Strategic
+Partnership.
+
+(c) Each Party shall be responsible for all expenses, as well as travel and
+related costs and expenses, for its Representatives to attend or otherwise
+participate in Committee meetings.
+
+3.6 Responsibilities after Strategic Partnering. After a Strategic Partnership
+approved by the JPC has been consummated to govern the Development and
+Commercialization of a Product in the Commercial Field, no Committee shall have
+any review or decision-making authority under this Agreement with respect to
+such Product(s).
+
+3.7 Decision-Making.
+
+3.7.1 Committee; Referral to Executive Officers. All decisions of each Committee
+shall be made by consensus, with each Party’s Representatives collectively
+having one (1) vote, and shall be set forth in minutes approved in writing by
+both Parties. Upon five (5) business days prior written notice, either Party may
+convene a special meeting of a Committee for the purpose of resolving any
+failure to reach consensus on a matter within the scope of the authority and
+responsibility of such Committee. No Committee shall have the authority to
+resolve any dispute involving the breach or alleged breach of this Agreement and
+shall not have any power to amend, modify, expand the scope of, or waive the
+terms of, this Agreement, or to alter, increase, expand, or waive compliance by
+a Party with, a Party’s obligations under this Agreement. If the JDC or JPC is
+unable to achieve
+
+ 
+
+-20-
+
+
+
+--------------------------------------------------------------------------------
+
+consensus on any matter so referred to it for resolution by one or both Parties
+within ten (10) business days after the matter is so referred to it, such matter
+shall be referred to the Chief Executive Officers of the Parties for resolution.
+
+3.7.2 Decision-Making Authority. If the matter is not resolved by the Executive
+Officers after discussions between them within ten (10) business days (or such
+longer period as the Parties agree) after referral to the Executive Officers,
+then the Executive Officer of Amerimmune shall have the right to decide the
+unresolved matter.
+
+3.7.3 Notwithstanding the foregoing, neither Party shall have the right to
+finally and unilaterally resolve a dispute subject to this Section 3.7:
+
+(i) in a manner that excuses such Party from any of its obligations specifically
+enumerated under this Agreement;
+
+(ii) in a manner that negates any consent rights or other rights specifically
+allocated to the other Party under this Agreement;
+
+(iii) to resolve any dispute involving the breach or alleged breach of this
+Agreement;
+
+(iv) to resolve a matter if the provisions of this Agreement specify that
+unanimous or mutual agreement of the Parties or a Committee, or consent of the
+other Party, is required for such matter;
+
+(v) in a manner that would require the other Party to perform any act that is
+inconsistent with any Law; or
+
+(vi) otherwise expand a Party’s rights or reduce a Party’s obligations under
+this Agreement.
+
+3.8 Scope of Governance. Notwithstanding the creation of each the Committees,
+each Party shall retain the rights, powers, and discretion granted to it under
+this Agreement, and no Committee shall be delegated or vested with rights,
+powers, or discretion unless such delegation or vesting is expressly provided
+herein, or the Parties expressly so agree in writing. It is understood and
+agreed that issues to be formally decided by a particular Committee are only
+those specific issues that are expressly provided in this Agreement to be
+decided by such Committee, as applicable.
+
+ARTICLE IV
+
+OPTION; OPTION EXERCISE; TECH TRANSFER
+
+4.1 Option Grant and Exercise.
+
+4.1.1 Option Grant by Histogen. Subject to the terms and conditions of this
+Agreement, Histogen hereby grants to Amerimmune, and Amerimmune accepts, an
+exclusive option (the “Option”), exercisable at any time during the period
+commencing on the first to occur of (i) the date the JPC agrees that Amerimmune
+shall have the right to exercise the Option, and (ii) the date that the JPC
+approves a Strategic Partnership, and in any case ending upon the end of the
+Research Term (the “Option Exercise Window”), to obtain an exclusive license to
+Develop and Commercialize Products in the Research and Commercial Fields
+throughout the Territory during the Term (the “Commercial License”). After
+exercise of the Option, Amerimmune, alone or in conjunction with one or more
+Strategic Partners, will use its commercially reasonable efforts to Develop,
+Manufacture, and Commercialize a Product for Profit, and to identify and support
+a Strategic Partner to Develop, Manufacture, and Commercialize a Product for
+Profit; it being understood and agreed that Amerimmune shall have satisfied this
+diligence obligation as of the date the first Qualifying Strategic Partnership
+becomes effective.
+
+ 
+
+-21-
+
+
+
+--------------------------------------------------------------------------------
+
+4.1.2 Option Exercise. Amerimmune shall have the right, but not the obligation,
+to exercise the Option by delivering written notice of such exercise to Histogen
+(the “Option Exercise Notice”) during the Option Exercise Window.
+
+4.1.3 Expiration of Option Exercise Window. Unless otherwise agreed by the
+Parties in writing, if Amerimmune does not exercise the Option during the Option
+Exercise Window, then all rights in the Histogen Intellectual Property shall
+revert to Histogen, and this Agreement shall automatically and concurrently
+terminate with the expiration of the Option Exercise Window.
+
+4.2 Data. Notwithstanding anything to the contrary in this Agreement, in the
+event Amerimmune timely exercises the Option, Histogen shall promptly provide to
+Amerimmune, free of charge, copies of and Rights of Reference to and use of all
+Data related to the Products that is relevant to or necessary to address issues
+relating to: (i) the safety of any Product, including Data that is related to
+adverse effects experienced with a Product, and/or (ii) all activities relating
+to CMC regarding Products.
+
+4.3 Tech Transfer. In the event Amerimmune timely exercises the Option, and
+periodically thereafter following a reasonable request from Amerimmune, as soon
+as reasonably practical Histogen shall transfer to Amerimmune, at no cost to
+Histogen, copies of all Histogen Know-How and Histogen Collaboration
+Intellectual Property to the extent not previously provided to Amerimmune. In
+addition, Histogen shall provide reasonable assistance, including making its
+personnel reasonably available for meetings or teleconferences to answer
+questions and provide technical support to Amerimmune with respect to the use of
+such transferred Know-How in the Development, Manufacture, and Commercialization
+of Products. The costs and expense incurred by either Party in connection with
+such assistance shall constitute Development Costs.
+
+ARTICLE V
+
+COMMERCIAL LICENSE; EXCLUSIVITY
+
+5.1 Commercial License.
+
+5.1.1 Exclusive License. Subject to the terms and conditions of this Agreement,
+in the event Amerimmune provides Histogen an Option Exercise Notice during the
+Option Exercise Window, Histogen hereby grants to Amerimmune, and Amerimmune
+accepts as of the date of the Option Exercise Notice (the “License Effective
+Date”), an exclusive, royalty-free right and license, including the right to
+grant and authorize sublicenses (subject to Section 5.1.2, below), under the
+Histogen Intellectual Property and Histogen Collaboration Intellectual Property,
+to Develop, Manufacture, and Commercialize one or more Products in the
+Commercial Field in the Territory (the “Commercial License”); provided, however,
+that all rights under the Commercial License shall be suspended for every
+licensee and sublicensee during any Suspension Period in the event Amerimmune
+has not yet entered into at least one Qualifying Strategic Partnership. In the
+event of early termination of this Agreement, the Commercial License shall
+terminate as of the date of termination of this Agreement.
+
+5.1.2 Sublicenses. Amerimmune shall have the right to grant and authorize
+sublicenses under the Commercial License, provided that any such sublicense
+granted by Amerimmune shall be (i) included only within a Strategic Partnership
+that has been unanimously approved in writing in advance by the JPC and
+(ii) subject to and consistent with the terms and conditions of this Agreement.
+Amerimmune agrees to promptly provide Histogen with an unredacted copy of any
+such sublicense. It is understood and agreed that a Strategic Partnership may
+grant the Strategic Partner the unrestricted right to grant and authorize
+further sublicenses pursuant to and consistent with the terms and conditions of
+the Strategic Partnership, and provided that to the extent at the time any such
+further sublicense is granted the Strategic Partner then owes one or more
+obligations to Amerimmune, the Strategic Partnership shall require that the
+Strategic Partner promptly provide an unredacted copy of such further sublicense
+to Amerimmune, and Amerimmune shall promptly share that unredacted copy of such
+sublicense with Histogen.
+
+5.1.3 Rights Retained by the Parties. For purposes of clarity, each Party
+retains all rights under Know-How and Patents Controlled by such Party not
+expressly granted to the other Party pursuant to this Agreement.
+
+ 
+
+-22-
+
+
+
+--------------------------------------------------------------------------------
+
+5.1.4 Limitation. For purposes of clarity, the Parties expect that further
+Development beyond the Research Program and any Commercialization of a Product
+will be carried out by a Third Party pursuant to a Qualifying Strategic
+Partnership. It is the intention of the Parties, subject to any Strategic
+Partnership entered into as provided herein, to structure Partnering with
+respect to such Strategic Partnership (i) as a collaborative endeavor whereby
+Amerimmune shall be the lead party for Partnering and (ii) whereby the Parties
+will mutually make decisions regarding Partnering through the JPC. It is
+understood and agreed that, unless agreed in a separate writing by the Parties,
+(i) no Product shall be Developed outside of the Research Field prior to a
+Qualifying Strategic Partnership being consummated, and (ii) no Product shall be
+Commercialized by Amerimmune without the prior written consent of Histogen; it
+being understood and agreed, however, that any activities undertaken by either
+Amerimmune or Histogen during the Term to identify a Third Party to support the
+Research Program and Development of Products under this Agreement, shall not be
+deemed Commercialization of any Product.
+
+5.1.5 Section 365(n) of the Bankruptcy Code. All licenses granted under this
+Agreement are deemed to be, for purposes of Section 365(n) of the United States
+Bankruptcy Code, licenses of rights to “intellectual property” as defined in
+Section 101 of such Code. Each Party, as licensee, may fully exercise all of its
+rights and elections under the Bankruptcy Code. The Parties further agree that,
+if a Party elects to retain its rights as a licensee under any Bankruptcy Code,
+such Party shall be entitled to complete access to any technology licensed to it
+hereunder and all embodiments of such technology. Such embodiments of the
+technology shall be delivered to the licensee Party not later than: (a) the
+commencement of bankruptcy proceedings against the licensor, upon written
+request, unless the licensor elects to perform its obligations under the
+Agreement; or (b) if not delivered under clause (a), upon the rejection of this
+Agreement by or on behalf of the licensor, upon written request. Any
+agreement(s) supplemental hereto will be deemed to be “agreement(s)
+supplementary to” this Agreement for purposes of Section 365(n) of the
+Bankruptcy Code. As used herein, “Bankruptcy Code” means the U.S. Bankruptcy
+Code and any foreign equivalent thereto in any country having jurisdiction over
+a Party or its assets.
+
+5.2 Exclusivity.
+
+5.2.1 Amerimmune; Histogen. During the Research Term, except as expressly
+permitted in this Agreement or mutually agreed in writing by the Parties,
+neither Party nor any of its Affiliates shall, directly or indirectly, Develop,
+Manufacture, or Commercialize any Competitive Product for any use or purpose.
+
+5.2.2 Certain Exceptions. Section 5.2.1, above, shall not apply if, during
+Research Term, either Party or any of its Affiliates merges or consolidates
+with, or otherwise acquires or is acquired by, a Third Party that is then
+engaged in activities that would otherwise constitute a breach of this
+Section 5.2 by a Party or its Affiliates.
+
+5.3 Government Approvals. To the extent required, each of Amerimmune and
+Histogen will use its commercially reasonable good faith efforts to eliminate
+any concern on the part of any Governmental Authority regarding the granting,
+scope, or exercise of the Commercial License, including, if required by
+Governmental Authorities, promptly taking all steps to remove any and all
+impediments to consummation of the transactions contemplated by this Agreement,
+including obtaining government antitrust clearance, cooperating in good faith
+with any Governmental Authority investigation, promptly producing any documents
+and information and providing witness testimony if requested by a Governmental
+Authority. Subject to this Section 5.3, Amerimmune and Histogen shall cooperate
+and use respectively all reasonable efforts to make all other registrations,
+filings and applications, to give all notices and to obtain as soon as
+practicable all governmental or other consents, transfers, approvals, orders,
+qualifications, authorizations, permits and waivers, if any, and to do all other
+thing necessary or desirable for the consummation of the transactions as
+contemplated hereby.
+
+5.4 Post-Exercise Clinical, Commercial Supply. In the event Amerimmune timely
+exercises the Option, thereafter Amerimmune (or, following consummation of a
+Strategic Partnership, the Strategic Partner), itself or through one or more
+Third Party manufacturers, shall be responsible for all drug product
+manufacturing and processing and filling of Products for all subsequent Clinical
+Trials and for Commercialization of Products (collectively, the “Amerimmune
+Manufacturing Responsibilities”). In order to assist Amerimmune (or the
+Strategic Partner) to perform the Amerimmune Manufacturing Responsibilities,
+Histogen shall (a) transfer, or have transferred, to Amerimmune (or the
+Strategic Partner), pursuant to a technology transfer plan to be mutually agreed
+by the Parties, all Manufacturing technology Controlled by Histogen and used in
+Manufacturing Products at the time
+
+ 
+
+-23-
+
+
+
+--------------------------------------------------------------------------------
+
+of such transfer, and (b) provide reasonable assistance in connection with the
+transfer of such Manufacturing responsibility to Amerimmune (or the Strategic
+Partner).
+
+5.5 Diligence; Compliance with Laws. Each Party shall use commercially
+reasonable efforts to perform all Development and, if any, all Manufacturing
+obligations under this Agreement in compliance with the applicable Development
+Plan, including any budget(s) and timeframe(s) set forth therein and including
+making available those resources set forth in any applicable Development Plan
+and the terms of this Agreement. In addition, each Party shall perform its
+obligations under this Agreement in a scientifically sound and workmanlike
+manner and carry out all work done in the course of the Collaboration in
+compliance with all applicable Laws governing the conduct of such work.
+
+ARTICLE VI
+
+FINANCIAL TERMS
+
+6.1 [intentionally left blank]
+
+6.2 Amerimmune Responsibility. Amerimmune shall be responsible for all costs
+associated with the Research Program, including all Clinical Trials conducted as
+part of the Research Program, unless a Strategic Partner has assumed such costs.
+
+6.3 Profit Sharing.
+
+6.3.1 The Parties shall equally share in Profits generated directly or
+indirectly (including through one or more Third Parties) in the course of
+Developing, preparing to Commercialize, and Commercializing Products subject to
+this Agreement, whether pursuant to and in accordance with any Strategic
+Partnership or through the acquisition (by sale, merger, or otherwise) of
+Amerimmune, subject first to deductions for costs and expenses a Party incurs in
+connection with such activities. For the avoidance of doubt, Profits would be
+net of costs and expenses that each Party incurs in connection with such
+activities. Profits shall also include Profit generated in a Transaction. For
+clarity, regardless of specific reference in an applicable definition in this
+Agreement, (i) all costs and expenses that a Party incurs in connection with
+this Agreement shall be as determined from the books and records of the
+applicable Party and its Affiliates maintained in accordance with Accounting
+Standards, and (ii) no costs and expenses shall be double-counted.
+
+6.3.2 Beginning with the first Calendar Quarter in which Profits accrue under
+this Agreement, and for each Calendar Quarter thereafter during the Term in
+which Profits accrue, the Profit Allocation shall be as follows:
+
+(a) the Amerimmune Profit Allocation shall be Fifty Percent (50%) of Profits
+accrued during such Calendar Quarter; and
+
+(b) the Histogen Profit Allocation shall be Fifty Percent (50%) of Profits
+accrued during such Calendar Quarter.
+
+6.4 Reports of Revenue, Profits; Payment. Beginning with the Calendar Quarter in
+which a Strategic Partnership or other Commercialization is entered into with a
+Third Party, within forty-five (45) days after the end of each Calendar Quarter,
+Amerimmune shall provide Histogen with a report stating the Profits received by
+Amerimmune during the applicable quarter. If no amount is payable to Histogen
+for a particular Calendar Quarter, the corresponding report shall so state.
+Concurrently with providing such report, Amerimmune shall pay the amounts
+specified in such report, if any, to Histogen. If a Transaction occurs, then the
+Report and Profits shall be provided and paid to Histogen at the closing of such
+Transaction.
+
+6.5 Development Costs and Manufacturing Costs. In addition to receipt of its
+respective Profit Allocation in accordance with Section 6.3, above, each Party
+shall also be entitled to recover all of its documented, unallocated
+(i) Development Costs, (ii) Pre-Commercialization Expenses, (iii) Manufacturing
+Costs,
+
+ 
+
+-24-
+
+
+
+--------------------------------------------------------------------------------
+
+(iv) Manufacturing Scale-Up Costs, (v) Regulatory Expenses, (vi) Regulatory
+Maintenance Costs, and (vii) Third Party License Costs from proceeds received
+from a Strategic Partnership or the sale or acquisition of Amerimmune.
+
+6.6 Financial Records. Amerimmune shall keep, and shall require its Affiliates
+and Strategic Partners or other Third Parties involved in any Commercialization
+to keep, complete and accurate books and records containing all data reasonably
+required for the calculation and verification of amounts payable to Histogen
+under this Article in accordance with the applicable Accounting Standards.
+Amerimmune shall keep, and shall require its Affiliates and Strategic Partners
+to keep, such books and records for at least three (3) years following the end
+of the Calendar Year to which they pertain. Such books of accounts shall be kept
+at the principal place of business of the financial personnel with
+responsibility for preparing and maintaining such records. With respect to any
+royalties that may be payable to Amerimmune from a Strategic Partner in respect
+of a Strategic Partnership or by a Third Party for any Commercialization, such
+records shall be in sufficient detail to support calculations of the equal share
+thereof due to Histogen. Amerimmune shall also keep, and require its Affiliates
+and Strategic Partners to keep, complete and accurate records and books of
+accounts containing all data reasonably required for the calculation and
+verification of Development Costs, including FTEs, Profit or Loss and, if
+applicable, Net Sales.
+
+6.7 Inspection Rights. For a period of three (3) years from the end of a
+Calendar Quarter in which a payment is due to Histogen under this Agreement,
+upon thirty (30) days prior notice, Amerimmune agrees to make, and to cause its
+Affiliates to make, such records relating to the expenditure of all Third Party
+monies (including, without limitation, all grants) available, during regular
+business hours and not more often than once each calendar year, for examination
+by an independent certified public accountant selected by Histogen, for the
+purpose of verifying the accuracy of the financial reports and expenditures made
+by Amerimmune pursuant to this Agreement. The results of any such inspection
+shall be shared by the auditor with both Parties and shall be considered
+Confidential Information of both Parties. Histogen shall bear the full cost of
+such inspection unless the audit reveals an underpayment in an amount in excess
+of the cost of the audit due Histogen for the period under examination, in which
+case, Amerimmune shall bear the full cost of such audit.
+
+6.8 Underpayment. In the event an examination conducted pursuant to Section 6.7,
+above, reveals a deficiency in Amerimmune’s payments to Histogen for the period
+under examination, Amerimmune shall promptly (and in no event within
+five Business Days) rectify such deficiency and, in addition, pay to Histogen
+interest on the amount of the deficiency, calculated at a rate per annum equal
+to ten percent (10%), calculated on the number of days such payments are paid
+after the date such payments were due, compounded annually.
+
+6.9 Tax Matters.
+
+6.9.1 Income Taxes; Withholding Taxes.
+
+(a) Each Party shall be responsible for payment of any income or withholding
+taxes in connection with amounts received by such Party in connection with this
+Agreement. Notwithstanding the foregoing, Amerimmune shall be entitled to deduct
+and withhold from any amounts payable to Histogen under this Agreement such
+taxes as are required to be deducted or withheld therefrom under any provision
+of applicable Law, in which event Amerimmune: (i) deduct those taxes from such
+payment; (ii) timely remit the taxes to the proper taxing authority; and
+(iii) if requested by Histogen, send evidence of the obligation together with
+proof of tax payment to Histogen. Each Party agrees to cooperate with the other
+Party in claiming refunds or exemptions from such deductions or withholdings
+under any relevant agreement or treaty or other applicable Law which is in
+effect to ensure that any amounts required to be withheld pursuant to this
+Section 6.9.1(a) are reduced in amount to the fullest extent permitted by
+applicable Law. In addition, the Parties shall co-operate in accordance with
+applicable Laws to minimize income taxes payable by either Party in connection
+with this Agreement, as applicable.
+
+(b) Tax Documentation. Each Party and any other recipient of payments under this
+Agreement shall provide to the other Party, at the time or times reasonably
+requested by the other Party or as required by applicable Law, properly
+completed and duly executed documentation as will permit payments made under
+this Agreement to be made without, or at a reduced rate of, withholding for
+taxes, and the applicable payment shall be made without (or at a reduced rate
+of) withholding to the extent permitted by such documentation, as reasonably
+determined by Amerimmune.
+
+ 
+
+-25-
+
+
+
+--------------------------------------------------------------------------------
+
+6.9.2 Tax Cooperation. Upon request, each Party shall use Commercially
+Reasonable Efforts to cooperate with the other Party to mitigate, reduce, or
+eliminate adverse tax consequences to such other Party from changes in
+applicable Law, the use of present or future Affiliates of either Party to
+engage in transactions described in or contemplated by this Agreement, or from
+other activities or transactions described in or contemplated by this Agreement.
+
+6.10 Payments; Currency Exchange. Payments of all amounts payable under this
+Article shall be made directly by Amerimmune to the bank account as designated
+in writing by Histogen from time to time during the Term. Unless otherwise
+expressly stated in this Agreement, all amounts specified in, and all payments
+made under, this Agreement shall be in United States dollars. Conversion of
+sales recorded in local currencies to United States dollars shall be performed
+in a manner consistent with commercially reasonable business practices.
+
+6.11 Late Payments. Amerimmune shall pay interest to Histogen on any payments
+due to Histogen that are not paid on or before the date such payments are due
+under this Agreement at a rate per annum equal to ten percent (10%), calculated
+on the number of days such payments are paid after the date such payments were
+due, compounded annually.
+
+ARTICLE VII
+
+INTELLECTUAL PROPERTY
+
+7.1 IP Ownership.
+
+7.1.1 Amerimmune IP. Except as expressly provided herein or otherwise agreed in
+writing by the Parties, during the Term Amerimmune shall retain ownership of all
+Amerimmune Intellectual Property owned or Controlled by Amerimmune as of the
+Effective Date or during the Term.
+
+7.1.2 Histogen IP. Except as expressly provided herein or otherwise agreed in
+writing by the Parties, during the Term Histogen shall retain ownership of all
+Histogen Intellectual Property owned or Controlled by Histogen as of the
+Effective Date or during the Term.
+
+7.1.3 Joint Collaboration IP. Except as expressly provided herein or otherwise
+agreed in writing by the Parties, during the Term Amerimmune and Histogen shall
+jointly own all Joint Collaboration IP discovered, invented, created, or made
+during the Research Term, without any duty to account to the other except as
+provided herein.
+
+7.1.4 Inventorship. Inventorship of Inventions shall be determined by
+application of U.S. patent law pertaining to inventorship, and ownership shall
+follow inventorship. All such Inventions shall be deemed the Intellectual
+Property of the Party that owns it/them.
+
+7.2 Prosecution of Patents.
+
+7.2.1 Before Strategic Partnering. As between the Parties, during the Term until
+such time as a Qualifying Strategic Partnership is entered into, the Party that
+owns a Patent subject to this Agreement shall have the sole right (but not the
+obligation) to Prosecute such Patent, at such Party’s sole discretion and
+expense using patent counsel of its choice, and unless otherwise explicitly
+agreed in writing by the Parties, Amerimmune shall have the first right (but not
+the obligation) to Prosecute any Patent within the Joint Collaboration Patents
+(if any), at its sole expense. If Amerimmune determines not to prosecute any
+such Collaboration Patent(s), then such right and Invention shall be assigned,
+and is hereby assigned, to Histogen and such patent shall thereafter be Histogen
+Intellectual Property.
+
+7.2.2 After Strategic Partnering. If during the Term a Qualifying Strategic
+Partnership is consummated, then the Qualifying Strategic Partnership may
+provide that the Strategic Partner may assume responsibility to Prosecute any
+Patent within the Amerimmune Patents, Histogen Patents, or Joint Collaboration
+Patents, in which event the Strategic Partner shall thereafter have the sole
+right to Prosecute any and all such Patents, subject to the terms of the
+Qualifying Strategic Partnership.
+
+ 
+
+-26-
+
+
+
+--------------------------------------------------------------------------------
+
+7.2.3 Cooperation. During the Term, each Party agrees to keep the other Party
+reasonably informed of all material developments with respect to the Prosecution
+of any and all Patents for which it has Prosecution responsibility under this
+Agreement, including by providing copies of all substantive office actions or
+any other substantive documents in connection with such Patent(s) that such
+Party, though its patent counsel, receives from any patent office, and
+(y) provide the other Party with a reasonable opportunity to comment
+substantively on the Prosecution thereof prior to taking material actions
+(including the filing of applications, designating countries for
+national/regional stage entry, for validation, or the like), and will in good
+faith consider any comments made by and actions recommended by the other Party,
+provided, however, that the other Party does so promptly and consistently
+sufficiently prior to any applicable filing deadlines (but in no event after the
+date the Party having Prosecution Responsibility therefor reasonably
+designates).
+
+7.3 Defense of Claims Brought by Third Parties. If a Party becomes aware of any
+actual or potential claim that the Development, Manufacture or Commercialization
+of any Product may infringe or misappropriates the intellectual property rights
+of any Third Party, such Party shall promptly notify the other Party.
+
+7.4 Enforcement and Defense of Patents. The Party owning a Patent subject to
+this Agreement shall have the sole right, but not the obligation, to institute,
+prosecute, and control any action or proceeding with respect to any infringement
+or defense of any Patent subject to this Agreement, using counsel of its choice,
+in its own name, and under its direction, control and expense. In the event the
+Party owning the Patent elects to abandon a Patent applicable to a Product or
+the Research Program, the other Party shall have the option to receive an
+assignment of the Patent for the same consideration provided to the Patent owner
+for such assignment, if possible. Upon receipt of such consideration, the Party
+owning the Patent shall promptly assign the Patent to the other Party at the
+other Party’s sole cost and expense.
+
+7.5 Third Party Licenses.
+
+7.5.1 Notice. On a Product-by-Product basis, if, at any time during the Term
+Amerimmune or Histogen reasonably determines that the Development, Manufacture,
+or Commercialization of any Product subject to this Agreement may infringe one
+or more Patents or utilize Know-How, in either case owned or controlled by a
+Third Party, then the Party making such determination shall so inform the other
+Party in writing and request that an emergency session of the JPC be convened in
+order to consider the issue, which issue shall then be deemed to be within the
+purview of the for so long as the issue remains unresolved.
+
+7.5.2 Third Party License. If the JPC determines that resolution of a matter
+referred to the JPC pursuant to Section 7.5.1, above, may require obtaining one
+or more licenses, on commercially reasonable terms, from one or more Third
+Parties for the Development, Manufacture, or Commercialization of a Product
+subject to this Agreement (in each case, a “Third Party License”), thereafter
+Amerimmune shall have the right, but not the obligation, at its sole discretion
+but after consultation with the JPC, to obtain a Third Party License on
+commercially reasonable terms.
+
+7.5.3 Costs. Subject to Section 6.3, above, unless otherwise agreed by the
+Parties in writing, the costs associated with negotiating and obtaining rights
+under any Third Party License obtained under this Section 7.5 shall be borne by
+the Party entering into such Third Party License.
+
+ARTICLE VIII
+
+CONFIDENTIALITY
+
+8.1 Confidential Information. Each Party agrees that a Party receiving
+Confidential Information (the “Receiving Party”) of the other Party (the
+“Disclosing Party”) shall (x) maintain in confidence such Confidential
+Information using not less than the efforts such Receiving Party uses to
+maintain in confidence its own proprietary information of similar kind and
+value, but in no event less than a reasonable degree of effort, (y) not disclose
+such Confidential Information to any Third Party without the prior written
+consent of the Disclosing Party, except for disclosures expressly permitted
+below, and (z) not use such Confidential Information for any purpose except
+those permitted by this Agreement (it being understood that this clause
+(z) shall not create or imply any rights or licenses not expressly granted under
+this Agreement). No Confidential Information of the Disclosing Party shall be
+used by
+
+ 
+
+-27-
+
+
+
+--------------------------------------------------------------------------------
+
+the Receiving Party except in performing its obligations or exercising rights
+explicitly granted under this Agreement, except to the extent that the
+Confidential Information:
+
+(a) was known by the Receiving Party or its Affiliates prior to its date of
+disclosure to the Receiving Party, as evidenced by the Receiving Party’s written
+records at the time of disclosure; or
+
+(b) is lawfully disclosed to the Receiving Party or its Affiliates by a Third
+Party other than the Disclosing Party rightfully in possession of the
+Confidential Information; or
+
+(c) becomes published or generally known to the public through no fault or
+omission on the part of the Receiving Party or its Affiliates; or
+
+(d) is independently developed by or for the Receiving Party or its Affiliates
+without reference to or reliance upon such Confidential Information, as
+evidenced by the Receiving Party’s written records at the time of disclosure.
+
+8.2 Ownership. Unless otherwise expressly provided in this Agreement, Amerimmune
+and Histogen shall at all times remain the sole owner of its respective
+Confidential Information.
+
+8.3 Permitted Disclosures. The Receiving Party may provide the Disclosing
+Party’s Confidential Information:
+
+(a) to the Receiving Party’s respective employees, consultants, and professional
+advisors, and to the employees, consultants, and professional advisors of such
+Party’s Affiliates, who have a need to know such information for performing
+obligations or exercising rights expressly granted under this Agreement and who
+have a binding obligation to treat such information and materials as
+confidential;
+
+(b) to patent offices in order to seek or obtain Patents or to Regulatory
+Authorities in order to seek or obtain approval to conduct clinical trials or to
+gain Regulatory Approval with respect to any Product, as contemplated by this
+Agreement; provided, however, that such disclosure may be made only following
+reasonable notice to and receipt of prior written approval from the Disclosing
+Party and then only to the extent reasonably necessary to seek or obtain such
+Patents or approvals;
+
+(c) if such disclosure is required by judicial order or applicable Law or to
+defend or prosecute litigation or arbitration; provided, however, that prior to
+such disclosure, to the extent permitted by Law, the Receiving Party promptly
+informs the Disclosing Party in writing of such requirement, cooperates with the
+Disclosing Party to take whatever action it may deem appropriate to protect the
+confidentiality of such information, and furnishes only that portion of the
+Disclosing Party’s Confidential Information that the Receiving Party is legally
+required to furnish; or
+
+(d) Notwithstanding anything to the contrary in this Article VIII, Amerimmune
+may disclose Confidential Information of Histogen (i) to Governmental
+Authorities (a) to the extent required to obtain or maintain INDs or Regulatory
+Approvals in the Research Field for Emricasan or, in the event the Option is
+exercised, in the Commercial Field, anywhere in the Territory for any Product,
+and (b) in the event it is obligated to respond to inquiries, requests, or
+investigations relating to this Agreement; (ii) to outside consultants,
+contractors, advisory boards, managed care organizations, and non-clinical and
+clinical investigators, in each case to the extent necessary to Develop
+Emricasan in the Research Field or, in the event the Option is exercised, in the
+Commercial Field, anywhere in the Territory for any Product; provided, that
+Amerimmune shall obtain the same confidentiality obligations from such Third
+Parties identified in (i) and (ii) above as it obtains with respect to its own
+similar types of Confidential Information; (iii) in connection with filing or
+Prosecuting Patents as permitted by this Agreement; (iv) in connection with
+prosecuting or defending litigation as permitted by this Agreement under a
+Protective Order having the same confidentiality obligations Amerimmune would
+seek or obtains with respect to its own similar types of Confidential
+Information; or (v) in connection with or included in scientific presentations
+and publications relating to Products, including abstracts, posters, journal
+articles, and the
+
+ 
+
+-28-
+
+
+
+--------------------------------------------------------------------------------
+
+like, and posting results of and other information about clinical trials to
+government and private sector websites in any country in the Territory, solely
+in accordance with Section 8.6 and only upon the written consent of Histogen,
+which consent shall not be unreasonably withheld. The Parties will coordinate in
+advance in connection with any such disclosures of Confidential Information of
+Histogen under this Section.
+
+8.4 Acknowledgement. Amerimmune acknowledges that Histogen’s Confidential
+Information may represent material, non-public information of Histogen, and that
+Amerimmune is aware, and agrees that it will advise its employees, Affiliates,
+and professional advisors who are informed of the matters that are the subject
+of this Agreement, of the restrictions imposed by the U.S. securities laws on
+the purchase or sale of securities by any Person who has received material,
+non-public information from the issuer of such securities and on the
+communication of such information to any other person when it is reasonably
+foreseeable that such other person is likely to purchase or sell such securities
+in reliance upon such information.
+
+8.5 Publicity; Terms of this Agreement; Non-Use of Names.
+
+8.5.1 Except as required by judicial order or applicable Law or as explicitly
+permitted by this Article, neither Party shall make any public announcement
+concerning this Agreement without the other Party’s prior written consent, which
+consent shall not be unreasonably withheld or delayed. Notwithstanding the
+foregoing, the Parties shall issue a press release, in a form mutually agreed to
+by the Parties (the “Press Release”), within thirty (30) days after the
+Effective Date. Neither Party shall use the name, trademark, trade name, or logo
+of the other Party, or the names of any of the other Party’s officers,
+directors, employees, consultants, agents, or professional advisors in any
+publicity or news release relating to this Agreement or its subject matter,
+without the prior express written permission of the other Party. For clarity,
+either Party may issue a press release or public announcement or make such other
+disclosure relating to this Agreement if the content of such press release,
+public announcement, or other disclosure: (i) does not consist of financial
+information and has previously been made public other than through a breach of
+this Agreement by the issuing Party or its Affiliates; or (ii) is contained in
+such Party’s financial statements prepared in accordance with Accounting
+Standards.
+
+8.5.2 Notwithstanding the terms of this Article:
+
+(a) Either Party shall be permitted to disclose the existence and terms of this
+Agreement to the extent required, in the reasonable opinion of such Party’s
+legal counsel, to comply with applicable Laws, including the rules and
+regulations promulgated by any Governmental Authority. Notwithstanding the
+foregoing, before disclosing this Agreement or any of the terms hereof pursuant
+to this Section 8.5.2, the Parties will coordinate in advance in connection with
+the redaction of certain provisions of this Agreement with respect to any
+filings with a Governmental Authority or domestic or foreign stock exchange on
+which securities issued by a Party or a Party’s Affiliate are traded, and each
+Party will use commercially reasonable efforts to seek confidential treatment
+for such terms as may be reasonably requested by the other Party.
+
+(b) Notwithstanding Section 8.1, above, the Receiving Party may disclose
+Confidential Information belonging to the Disclosing Party, and Confidential
+Information deemed to belong to both the Disclosing Party and the Receiving
+Party, to the extent (and only to the extent) such disclosure is reasonably
+necessary in the following instances:
+
+(i) subject to Section 8.5.2(a), above, complying with applicable Laws,
+regulations promulgated by Governmental Authorities, and with judicial process;
+
+(ii) disclosure, solely on a “need to know basis,” to (A) Affiliates,
+subcontractors, advisors (including attorneys and accountants), and (B) subject
+to Section 8.5.2(b)(iii), below, investment bankers; provided; however, that in
+all cases of (A) and/or (B), prior to any such disclosure, each Person to whom
+such disclosure is to be made must be bound by written obligations of
+confidentiality, non-disclosure, and non-use no less restrictive than those set
+forth in this Article (provided, however, that in the case of legal advisors, no
+written agreement shall be required), with it being understood and agreed that
+in each of the above
+
+ 
+
+-29-
+
+
+
+--------------------------------------------------------------------------------
+
+situations, the Receiving Party shall remain responsible for any failure by any
+Person who receives Confidential Information pursuant to this
+Section 8.5.2(b)(ii) to treat such Confidential Information as required under
+this Article; and
+
+(iii) in the case of any disclosure of this Agreement by Amerimmune to any
+actual or potential acquirer, assignee, licensee, licensor, investment banker,
+institutional investor, lender, or other financial partner or advisor, such
+disclosure shall solely be made to a Third Party in connection with a proposed
+Strategic Partnership or transaction that would result in a Change of Control of
+Amerimmune.
+
+8.6 Publications. The Parties agree that decisions regarding the timing and
+content of Publications shall be subject to the oversight and approval of the
+JDC and neither Party nor its Affiliates shall have the right to make
+Publications pertaining to the Research Program or any Product except as
+provided in this Agreement. If a Party desires to make a Publication, such Party
+must comply with the following procedure:
+
+8.6.1 The publishing Party shall provide the JDC with an advance copy of the
+proposed Publication, and the JDC shall then have ten (10) business days prior
+to submission for any Publication in which to determine whether the Publication
+should be submitted and under what conditions, including (a) delaying
+sufficiently long to permit the timely preparation and filing of a patent
+application or (b) specifying changes the JDC reasonably believes are necessary
+to preserve Confidential Information contained in any unpublished Patent or
+Know-How belonging in whole or in part to the non-publishing Party.
+
+8.6.2 In addition, if the non-publishing Party informs the publishing Party that
+such Publication, in the non-publishing Party’s reasonable judgment, discloses
+any Confidential Information of the non-publishing Party or could be expected to
+have a material adverse effect on any Know-How which is Confidential Information
+of the non-publishing Party, such Confidential Information or Know-How shall be
+deleted from the Publication.
+
+8.6.3 Each Party shall have the right to present its Publications approved
+pursuant to this Section 8.6.3 at scientific conferences, including at any
+conferences in any country in the world, subject to any conditions imposed by
+the JDC in its approval.
+
+8.6.4 For purposes of convenience, the JDC may delegate its responsibilities
+under this Section 8.6.4 to one or more representatives of Amerimmune or
+Histogen.
+
+8.6.5 Notwithstanding any other provision of this Agreement, the Parties shall,
+through the JDC review and approval process set forth in this Section 8.6, seek
+to promptly publish in a peer-reviewed scientific journal, with Dr. Oral Alpan
+as the lead author, the results of any the Initial Trial following delivery of
+the corresponding Initial Trial Report to the JDC.
+
+8.7 Confidentiality Period. All obligations under Sections 8.1, 8.2, 8.3, 8.5,
+8.7, 8.8, 8.9, and 8.10 of this Article shall survive termination or expiration
+of this Agreement and shall (i) expire seven (7) years following termination or
+expiration of this Agreement for non-trade secret Confidential Information; and
+(ii) remain, for Confidential Information which rises to the level of a trade
+secret under applicable Law, for so long as such Confidential Information
+retains its status as a trade secret. Notwithstanding the preceding provisions
+of this Section 8.7, Section 8.9 shall survive one (1) year after termination or
+expiration of this Agreement.
+
+8.8 Return of Confidential Information.
+
+8.8.1 Upon the expiration or termination of this Agreement, should the
+Disclosing Party request in writing that the Receiving Party return or destroy
+the Disclosing Party’s Confidential Information during the seven (7) year
+Confidentiality Period during which the confidentiality and non-use obligations
+subsequently survive, the Receiving Party shall, as the case may be, return to
+the Disclosing Party or destroy all Confidential Information received by the
+Receiving Party from the Disclosing Party (and all copies and reproductions
+thereof).
+
+ 
+
+-30-
+
+
+
+--------------------------------------------------------------------------------
+
+8.8.2 Nothing in this Section 8.8 shall require the alteration, modification,
+deletion, or destruction of archival tapes or other electronic back-up media
+made in the ordinary course of business; provided; however, that regardless of
+any other provision of this Agreement the Receiving Party shall continue to be
+bound by its obligations of confidentiality and other obligations under this
+Article with respect to any Confidential Information contained in such archival
+tapes or other electronic back-up media for so long as such tapes or media are
+retained by the Receiving Party.
+
+8.8.3 Notwithstanding the foregoing,
+
+(a) the Receiving Party may retain its own notes, reports, and other documents
+generated by or on such Party’s behalf in accordance with the provisions of this
+Article that contain Disclosing Party’s Confidential Information but only:
+
+(i) to the extent reasonably required (A) to exercise the rights and licenses of
+the Receiving Party expressly surviving expiration or termination of this
+Agreement; or (B) to perform the obligations of the Receiving Party expressly
+surviving expiration or termination of this Agreement; or
+
+(ii) to the extent it is impracticable to do so without incurring
+disproportionate cost.
+
+Notwithstanding the return or destruction of the Disclosing Party’s Confidential
+Information, the Receiving Party shall continue to be bound by its obligations
+of confidentiality and other obligations under this Article.
+
+8.9 Non-Solicitation. Each Party agrees as follows:
+
+8.9.1 Employees; Consultants. During the Research Term and for a period of
+eighteen (18) months thereafter, such Party shall not, directly or indirectly,
+solicit, induce, recruit, or encourage any of the other Party’s employees,
+officers, directors, consultants, agents, or professional advisors to terminate
+their relationship with the other Party.
+
+8.9.2 Other Parties. During the term of this Agreement and for a period of
+twelve (12) months following the date of this Agreement, when in the role of a
+Receiving Party, such Party shall not use any Confidential Information of the
+Disclosing Party to negatively influence any of the Disclosing Party’s clients,
+licensors, licensees, or customers from purchasing products or services of the
+Disclosing Party or to solicit or influence or attempt to influence any client,
+licensor, licensee, customer, or other Person, either directly or indirectly, to
+direct any purchase of products and/or services to any Person in competition
+with the business of disclosing Party.
+
+8.10 Common Interest. To the extent that any Confidential Information provided
+or made available under this Agreement may include material subject to the
+attorney-client privilege, work product doctrine, or any other applicable
+privilege concerning pending or threatened legal proceedings or governmental
+investigations, the Receiving Party and the Disclosing Party understand and
+agree that they have a commonality of interest with respect to such matters and
+it is their desire, intention, and mutual understanding that the sharing of such
+material is not intended to, and shall not, waive or diminish in any way the
+confidentiality of such material or its continued protection under the
+attorney-client privilege, work product doctrine, or other applicable privilege.
+All Confidential Information provided or made available by the Disclosing Party
+that is entitled to protection under the attorney-client privilege, work product
+doctrine, or other applicable privilege shall remain entitled to such protection
+under these privileges, this Agreement, and under the joint defense doctrine.
+Nothing in this Agreement obligates the Disclosing Party to reveal material
+subject to the attorney-client privilege, work product doctrine, or any other
+applicable privilege.
+
+ 
+
+-31-
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE IX
+
+REPRESENTATIONS AND WARRANTIES
+
+9.1 Mutual Representations. Amerimmune and Histogen each represents, warrants,
+and covenants to the other Party, as of the Effective Date, that:
+
+9.1.1 Authority. It is duly organized, validly existing, and in good standing
+under the Laws of the jurisdiction of its formation and has full corporate power
+and authority to enter into this Agreement and to carry out its obligations
+hereunder, as applicable.
+
+9.1.2 Consents. All necessary consents, approvals, and authorizations of all
+Government Authorities and other Persons required to be obtained by it as of the
+Effective Date in connection with the execution, delivery, and performance of
+this Agreement have been obtained.
+
+9.1.3 No Conflict. Notwithstanding anything to the contrary in this Agreement,
+the execution and delivery of this Agreement, the performance of such Party’s
+obligations in the conduct of the Collaboration and the licenses and sublicenses
+to be granted pursuant to this Agreement (a) do not and will not conflict with
+or violate any requirement of applicable Laws existing as of the Effective Date
+and (b) do not and will not conflict with, violate, breach, or constitute a
+default under any agreement, or any contract, oral or written, to which it is a
+party or by which it or any of its Affiliates is bound, existing as of the
+Effective Date.
+
+9.1.4 Enforceability. This Agreement has been duly executed and delivered on
+behalf of such Party and is a legal and valid obligation binding upon it and is
+enforceable in accordance with its terms.
+
+9.1.5 Employee Obligations. To its knowledge, none of its or its Affiliates’
+employees who have been, are or will be involved in the Collaboration are, as a
+result of the nature of such Collaboration to be conducted by the Parties, in
+violation of any covenant in any contract with a Third Party relating to
+non-disclosure of proprietary information, non-competition, or non-solicitation.
+
+9.2 Additional Amerimmune Representations. Amerimmune represents, warrants, and
+covenants to Histogen, that, as of the Effective Date:
+
+9.2.1 Amerimmune has not used, and during the Term will not knowingly use, any
+Know-How in the Research Program conducted by Amerimmune that is encumbered by
+any contractual right of or obligation to a Third Party that conflicts or
+interferes with any of the rights granted or to be granted to Histogen under
+this Agreement.
+
+9.2.2 Amerimmune has not granted, and during the Term Amerimmune will not grant,
+any right or license to any Third Party relating to any Amerimmune Intellectual
+Property that conflicts with or limits the scope of the rights granted or to be
+granted to Histogen under this Agreement.
+
+9.2.3 There are no claims, litigations, suits, actions, disputes, arbitrations,
+or legal, administrative, or other proceedings or governmental investigations
+pending or, to Amerimmune’s knowledge, threatened against Amerimmune, nor is
+Amerimmune a party to any judgment or settlement that would be reasonably
+expected to adversely affect or restrict the ability of Amerimmune to consummate
+the transactions contemplated under this Agreement and to perform its
+obligations under this Agreement, or which would affect the Amerimmune
+Intellectual Property or Amerimmune’s Control thereof.
+
+9.2.4 To Amerimmune’s knowledge, the practice of the Amerimmune Intellectual
+Property as contemplated under this Agreement does not (a) infringe any claim of
+any Patent of any Third Party or (b) misappropriate any Know-How of any Third
+Party.
+
+9.2.5 None of the Amerimmune Patents are subject to any pending re-examination,
+opposition, interference, or litigation proceeding.
+
+ 
+
+-32-
+
+
+
+--------------------------------------------------------------------------------
+
+9.2.6 There is no Existing Third Party Agreement to which Amerimmune or an
+Affiliate of Amerimmune is a party.
+
+9.2.7 There is no agreement, contract, or other enforceable obligation with any
+Third Party to which Amerimmune or an Affiliate of Amerimmune is a party that
+requires payment of any fee, milestone payment, royalty, or other consideration
+with respect to the Development, Manufacture, or Commercialization (if any) of a
+Product for any purpose in the Field.
+
+9.2.8 Neither Amerimmune nor any of its Affiliates has granted any lien or
+security interest in or to the Amerimmune Intellectual Property and the
+Amerimmune Intellectual Property is free and clear of any mortgage, pledge,
+claim, security interest, covenant, easement, encumbrance, lien, or charge of
+any kind.
+
+9.2.9 Schedule 1 contains a complete and accurate list of all Patents owned by
+Amerimmune and/or its Affiliates as of the Effective Date.
+
+9.2.10 Amerimmune and its Affiliates are not subject to any payment obligations
+to Third Parties as a result of the execution or performance of this Agreement.
+
+9.3 Additional Histogen Representations. Histogen represents, warrants, and
+covenants to Amerimmune, that, as of the Effective Date:
+
+9.3.1 Histogen possesses sufficient rights, authorizations, and consents
+necessary to grant all rights and licenses it purports to grant to Amerimmune
+with respect to the Histogen Intellectual Property under this Agreement.
+
+9.3.2 Histogen Know-How to be used by Amerimmune in conducting the Research
+Program is not encumbered by any contractual right of or obligation to a Third
+Party that conflicts or interferes with any of the rights granted or to be
+granted to Amerimmune under this Agreement.
+
+9.3.3 Histogen has not granted, and during the Term Histogen will not grant, any
+right or license to any Third Party relating to any Histogen Intellectual
+Property that conflicts with or limits the scope of the rights granted or to be
+granted to Amerimmune under this Agreement.
+
+9.3.4 There are no claims, litigations, suits, actions, disputes, arbitrations,
+or legal, administrative, or other proceedings or governmental investigations
+pending or, to Histogen’s knowledge, threatened against Histogen, nor is
+Histogen a party to any judgment or settlement that would be reasonably expected
+to adversely affect or restrict the ability of Histogen to consummate the
+transactions contemplated under this Agreement and to perform its obligations
+under this Agreement, or which would affect the Histogen Intellectual Property
+or Histogen’s Control thereof.
+
+9.3.5 To Histogen’s knowledge, the practice of the Histogen Intellectual
+Property as contemplated under this Agreement does not (a) infringe any claim of
+any Patent of any Third Party or (b) misappropriate any Know-How of any Third
+Party.
+
+9.3.6 None of the Histogen Patents are subject to any pending re-examination,
+opposition, interference, or litigation proceeding.
+
+9.3.7 There is no Existing Third Party Agreement to which Histogen or an
+Affiliate of Histogen is a party.
+
+9.3.8 There is no agreement, contract, or other enforceable obligation with any
+Third Party to which Histogen or an Affiliate of Histogen is a party that
+requires payment of any fee, milestone payment, royalty, or other consideration
+with respect to the Development, Manufacture, or Commercialization (if any) of a
+Product for any purpose in the Commercial Field, including the Research Field.
+
+ 
+
+-33-
+
+
+
+--------------------------------------------------------------------------------
+
+9.3.9 Neither Histogen nor any of its Affiliates has granted any lien or
+security interest in or to the Histogen Intellectual Property and the Histogen
+Intellectual Property is free and clear of any mortgage, pledge, claim, security
+interest, covenant, easement, encumbrance, lien, or charge of any kind.
+
+9.3.10 Schedule 2 contains a complete and accurate list of all Histogen Patents
+owned by Histogen and/or its Affiliates as of the Effective Date.
+
+9.3.11 Histogen and its Affiliates are not subject to any payment obligations to
+Third Parties as a result of the execution or performance of this Agreement.
+
+9.4 Covenants.
+
+9.4.1 Mutual Covenants. Each Party hereby covenants to the other Party that:
+
+(a) all employees of such Party or its Affiliates or Third Party subcontractors
+working under this Agreement will be under appropriate confidentiality
+provisions at least as protective as those contained in this Agreement, and, to
+the extent permitted under applicable Law, the obligation to assign all right,
+title, and interest in and to their inventions and discoveries, whether or not
+patentable, to such Party as the sole owner thereof;
+
+(b) to its knowledge, such Party will not (i) employ or use, nor hire or use any
+contractor or consultant that employs or uses, any individual or entity,
+including a clinical investigator, institution, or institutional review board
+that has been debarred or disqualified by the FDA (or subject to a similar
+sanction by any Regulatory Authority outside the United States) or (ii) employ
+any individual who or entity that is the subject of an FDA debarment
+investigation or proceeding (or similar proceeding by any Regulatory Authority
+outside the United States), in each of subclauses (i) and (ii) of this Section
+in the conduct of its activities under this Agreement;
+
+(c) neither such Party nor any of its Affiliates shall, during the Term, grant
+any right or license to any Third Party relating to any of the intellectual
+property rights it owns or Controls which would conflict with any of the rights
+or licenses granted to the other Party under this Agreement; and
+
+(d) such Party and its Affiliates shall perform its obligations pursuant to this
+Agreement in compliance (and shall ensure compliance by any of its
+subcontractors) in all material respects with all applicable Laws, including
+GCP, GLP, and GMP, as applicable, and with respect to the research, Development,
+Manufacturing, and Commercialization activities under this Agreement.
+
+9.4.2 Additional Covenants. Except to the extent expressly permitted under
+Article V, above, on a Product-by-Product basis, during the Term neither Party
+nor its Affiliates will, other than to an Affiliate of such Party that agrees in
+writing to be bound by the terms and conditions of this Agreement, (a) assign,
+transfer, convey, encumber (including any liens or charges, but excluding any
+licenses, which are the subject of subsection (b) of this Section 9.4.2), or
+dispose of, or enter into any agreement with any Third Party to assign,
+transfer, convey, encumber (including any liens or charges, but excluding any
+licenses, which are the subject of this Section 9.4.2) or dispose of, any assets
+specifically related to such Product, including pre-clinical study or Clinical
+Trial results or other data specifically related to such Product, or any
+intellectual property specifically related to any of the foregoing, except to
+the extent such assignment, transfer, conveyance, encumbrance, or disposition
+would not fundamentally frustrate the purpose of this Agreement with respect to
+such Product, (b) license or grant to any Third Party, or agree to license or
+grant to any Third Party, any rights to the same if such license or grant would
+fundamentally frustrate the purpose of this Agreement, or (c) disclose any
+Confidential Information relating to the same to any Third Party if such
+disclosure would fundamentally frustrate the purpose of this Agreement with
+respect to such Product. Each Party and/or its Affiliates shall have the right
+to assign, transfer, convey, or dispose of any assets specifically related to
+such Product to any Affiliate, to the extent permitted by Section 12.4, below.
+
+9.5 Disclaimer. Except as otherwise expressly set forth in this Agreement,
+NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTY OF ANY KIND,
+EITHER EXPRESS OR
+
+ 
+
+-34-
+
+
+
+--------------------------------------------------------------------------------
+
+IMPLIED, INCLUDING ANY WARRANTY THAT ANY PATENTS ARE VALID OR ENFORCEABLE, AND
+EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF
+MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD
+PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY
+DISCLAIMS ANY WARRANTIES WITH REGARD TO: (A) THE SUCCESS OF ANY STUDY OR TEST,
+INCLUDING THE RESEARCH PROGRAM OR ANY CLINICAL TRIAL, COMMENCED UNDER THIS
+AGREEMENT; (B) THE SAFETY OR USEFULNESS FOR ANY PURPOSE OF THE TECHNOLOGY OR
+MATERIALS, INCLUDING ANY PRODUCT IT PROVIDES UNDER THIS AGREEMENT; OR (C) THE
+VALIDITY, ENFORCEABILITY, OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
+RIGHTS OR TECHNOLOGY IT PROVIDES OR LICENSES TO THE OTHER PARTY UNDER THIS
+AGREEMENT.
+
+ARTICLE X
+
+INDEMNIFICATION; INSURANCE
+
+10.1 By Amerimmune.
+
+10.1.1 Amerimmune agrees, at Amerimmune’s cost and expense, to defend,
+indemnify, and hold harmless Histogen and its Affiliates and their respective
+directors, officers, employees, and agents (each a “Histogen Indemnified Party”)
+from and against any Damages arising out of any Claim relating to:
+
+(a) any breach by Amerimmune of any of its covenants, representations, or
+warranties pursuant to this Agreement; or
+
+(b) the gross negligence or willful misconduct of Amerimmune; or
+
+(c) the Development, Manufacture, distribution, sale, offer for sale,
+importation, use, or other disposition of any Product by Amerimmune, its
+Affiliates, licensees, or sublicensees.
+
+10.1.2 In the event of any such Claim against a Histogen Indemnified Party by
+any Third Party, Histogen shall promptly notify Amerimmune in writing of the
+Claim. Amerimmune shall have the right, exercisable by notice to Histogen within
+ten (10) business days after receipt of notice from Histogen of the Claim, to
+assume direction and control of the defense, litigation, settlement, appeal, or
+other disposition of the Claim (provided that such Claim is solely for monetary
+damages and Amerimmune agrees to pay all Damages relating to such matter, as
+evidenced in a written confirmation delivered by Amerimmune to Histogen) with
+counsel selected by Amerimmune and reasonably acceptable to Histogen; provided,
+that the failure to provide timely notice of a Claim shall not limit a Histogen
+Indemnified Party’s right for indemnification hereunder except to the extent
+such failure results in actual prejudice to Amerimmune. Any Histogen Indemnified
+Party shall cooperate with Amerimmune and may, at its option and expense, be
+separately represented in any such action or proceeding. Amerimmune shall not be
+liable for any litigation costs or expenses incurred by a Histogen Indemnified
+Party without Amerimmune’s prior written authorization. In addition, Amerimmune
+shall not be responsible for the indemnification or defense of any Histogen
+Indemnified Party to the extent arising from any negligent or intentional act by
+any Histogen Indemnified Party or the breach by Histogen of any of its
+covenants, obligations, representations, or warranties under this Agreement, or
+any Claim compromised or settled without Amerimmune’s prior written consent,
+which consent will not be unreasonably withheld or delayed. Each Party shall use
+reasonable efforts to mitigate Damages indemnified under this Section 10.1.
+
+10.1.3 Amerimmune shall not be obligated to indemnify, defend, or hold Histogen
+or any Histogen Indemnified Party harmless to the extent that such Damages are
+the subject of Histogen’s indemnification obligations under Section 10.2, below.
+
+ 
+
+-35-
+
+
+
+--------------------------------------------------------------------------------
+
+10.2 By Histogen.
+
+10.2.1 Histogen agrees, at Histogen’s cost and expense, to defend, indemnify,
+and hold harmless Amerimmune and its Affiliates and their respective directors,
+officers, employees, and agents (each an “Amerimmune Indemnified Party”) from
+and against any Damages arising out of any Claim relating to:
+
+(a) any breach by Histogen of any of its covenants, representations, or
+warranties pursuant to this Agreement;
+
+(b) the gross negligence or willful misconduct of Histogen; or
+
+(c) the Manufacture or supply of any Product by or on behalf of Histogen
+pursuant to this Agreement.
+
+10.2.2 In the event of any such Claim against an Amerimmune Indemnified Party by
+any Third Party, Amerimmune shall promptly notify Histogen in writing of the
+Claim. Histogen shall have the right, exercisable by notice to Amerimmune within
+ten (10) business days after receipt of notice from Amerimmune of the Claim, to
+assume direction and control of the defense, litigation, settlement, appeal, or
+other disposition of the Claim (provided that such Claim is solely for monetary
+damages and Histogen agrees to pay all Damages relating to such matter, as
+evidenced in a written confirmation delivered by Histogen to Amerimmune) with
+counsel selected by Histogen and reasonably acceptable to Amerimmune; provided,
+that the failure to provide timely notice of a Claim shall not limit an
+Amerimmune Indemnified Party’s right for indemnification hereunder except to the
+extent such failure results in actual prejudice to Histogen. Any Amerimmune
+Indemnified Party shall cooperate with Histogen and may, at its option and
+expense, be separately represented in any such action or proceeding. Histogen
+shall not be liable for any litigation costs or expenses incurred by an
+Amerimmune Indemnified Party without Histogen’s prior written authorization. In
+addition, Histogen shall not be responsible for the indemnification or defense
+of any Amerimmune Indemnified Party to the extent arising from any negligent or
+intentional act by any Amerimmune Indemnified Party or the breach by Amerimmune
+of any of its covenants, obligations, representations, or warranties under this
+Agreement, or any Claim compromised or settled without Histogen’s prior written
+consent. Each Party shall use reasonable efforts to mitigate Damages indemnified
+under this Section 10.2.
+
+10.2.3 Histogen shall not be obligated to indemnify, defend, or hold Amerimmune
+or any Amerimmune Indemnified Party harmless to the extent that such Damages are
+the subject of Amerimmune’s indemnification obligations under Section 10.1,
+above.
+
+10.3 Joint Defendants. If any suit is brought against either Party relating in
+any way to any Product(s), and it is not clear from the allegations in the
+complaint or the known facts surrounding the allegations in the complaint as to
+whether a Claim exists for which there is a right of indemnification pursuant to
+Section 10.1 or 10.2 above, then Amerimmune shall be responsible for controlling
+the defense of such suit in the first instance, at its expense. No settlement,
+consent judgment, or other voluntary final disposition of any such suit may be
+entered into without the prior written consent of Histogen, which consent shall
+not be unreasonably withheld or delayed. If, at any time in the course of such
+suit, it becomes apparent from discovery or otherwise that a Claim exists for
+which indemnification may be obtained in accordance with Section 10.1 or 10.2,
+above, then the indemnification provisions of either Section 10.1 or 10.2,
+above, whichever is applicable, shall become applicable and govern further
+proceedings in the suit in accordance with Section 10.1 or 10.2, above.
+
+10.4 Limitation of Liability. EXCEPT WITH RESPECT TO A BREACH OF ARTICLE VIII,
+ABOVE, NEITHER PARTY NOR ITS RESPECTIVE AFFILIATES SHALL BE LIABLE FOR SPECIAL,
+INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE, OR OTHER INDIRECT OR
+REMOTE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE
+ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS
+HEREUNDER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, OR
+OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
+DAMAGES OR LOSS.
+
+ 
+
+-36-
+
+
+
+--------------------------------------------------------------------------------
+
+10.5 Insurance. During the Term, each Party shall maintain commercial general
+liability insurance (including product liability insurance and clinical trials
+insurance policy in an amount not less than what Histogen carries) from a
+recognized, creditworthy insurance company, with coverage limits on per claim
+and annual aggregate bases being commercially reasonable under the
+circumstances. Within thirty (30) days following written request from the other
+Party, each Party shall furnish to the other Party a certificate of insurance
+evidencing such coverage. If such coverage is modified or cancelled, the insured
+Party shall so inform the other Party in writing and promptly provide such other
+Party with a new certificate of insurance evidencing that such insured Party’s
+coverage meets the requirements of this Section 10.5.
+
+ARTICLE XI
+
+TERMINATION
+
+11.1 Term; Expiration. Unless earlier terminated in accordance with this
+Article XI, the term of this Agreement (the “Term”) shall commence as of the
+Effective Date and remain in force until the later of the expiration of the
+last-to-expire of the following (i) the Research Term, (ii) the last to expire
+Patent within the Amerimmune Patents or Histogen Patents, and (iii) the date on
+which Amerimmune receives the last payment due pursuant to the last to expire
+any Strategic Partnership. Notwithstanding anything to the contrary in this
+Agreement, this Agreement shall terminate automatically and with immediate
+effect if by 31 December 2025 Profits are less than Ten Million U.S. dollars
+(US$10,000,000) from Development or Commercialization of a Product.
+
+11.2 Licenses After Agreement Expiration. If Amerimmune consummated a Qualifying
+Strategic Partnership or has been acquired in a Transaction, in either case in
+which Histogen has received at least One Million dollars ($1,000,000) from
+Profit sharing as contemplated herein, then, concurrent with expiration of the
+Term (but not in the event of early termination) of this Agreement, Amerimmune’s
+(or a Strategic Partner’s) rights and licenses under this Agreement to surviving
+Histogen Intellectual Property to Develop, Manufacture, and Commercialize any
+Product(s) in the Commercial Field in the Territory shall convert to
+irrevocable, non-terminable rights and licenses, with the right to grant and
+authorize sublicenses, provided that following such expiration Amerimmune (or a
+Strategic Partner) shall be solely responsible for (i) any payment owed to any
+Third Party licensors of intellectual property or other assets or rights then
+included within Histogen Intellectual Property and (ii) for complying with the
+terms of any license agreements with such Third Party licensors (but only to the
+extent of Amerimmune’s exercise of such rights). For clarity, in the event that
+after expiration of this Agreement Amerimmune receives payment or other
+consideration (from a Strategic Partner or otherwise) in respect of Histogen
+Intellectual Property that survives such expiration, then Amerimmune and
+Histogen shall continue to share Profits derived therefrom for so long as
+Amerimmune receives such payment(s) or other consideration, and the provisions
+of Sections 6.4-6.8, above, shall survive accordingly.
+
+11.3 Termination for Clinical Reasons. During the Research Term, either Party,
+or a Strategic Partner then having Development responsibility, shall have the
+right to terminate this Agreement in its entirety at any time upon at least
+thirty (30) days prior written notice to the other Party in the event that (i) a
+Party, or a Strategic Partner then having Development responsibility, in the
+exercise of its reasonable scientific judgment, determines that further
+Development of Emricasan for use in the Research Field is unlikely to be
+successful; provided, however, that if Histogen seeks to terminate this
+Agreement in accordance with the foregoing and Amerimmune believes in its
+reasonable scientific judgment that further Development of Emricasan for use in
+the Research Field is likely to be successful, then Amerimmune may veto such
+termination by notice to Histogen and committing (to Histogen) to spend at least
+One Million dollars ($1,000,000) in Development costs within twelve (12) months
+following Histogen’s written notice to terminate for clinical reasons. After
+entry into the first Qualifying Strategic Partnership, Amerimmune shall have the
+right to terminate this Agreement in its entirety at any time upon at least
+thirty (30) days prior written notice to Histogen in the event that such
+Strategic Partnership is terminated and no other Qualifying Strategic
+Partnership is then in effect.
+
+11.4 Termination for Breach.
+
+11.4.1 Material Breach. Subject to Sections 11.4.2 and 11.4.3, below, this
+Agreement may be terminated by either Party due to a breach of this Agreement in
+a manner that fundamentally frustrates the transactions contemplated by this
+Agreement taken as a whole (each, a “Material Breach”), provided that the
+breaching Party has not cured such breach within ninety (90) days after receipt
+of notice of such Material Breach
+
+ 
+
+-37-
+
+
+
+--------------------------------------------------------------------------------
+
+(the “Cure Period”). Any notice of Material Breach shall describe such breach in
+reasonable detail and shall state the non-breaching Party’s intention to
+terminate this Agreement in its entirety or with respect to one or more
+Products. Under this Section 11.4.1, after expiration of the applicable Cure
+Period, unless the breaching Party has cured any such breach or default and
+notified the non-breaching Party of such cure prior to the expiration of the
+applicable Cure Period, the non-breaching Party shall then have the right to
+terminate this Agreement in its entirety or as to the particular Product(s), as
+specified in the corresponding notice of breach, which termination shall be
+effective as of the date of such notice of termination (or such later date as
+the non-breaching Party may designate in such notice of termination).
+Notwithstanding the foregoing, if a Material Breach is not susceptible to a
+complete cure within the applicable Cure Period, then the non-breaching Party’s
+right of termination shall be suspended only if and for so long as the breaching
+Party has diligently worked to cure the default and has provided to the
+non-breaching Party a written plan that is reasonably calculated to effect a
+cure and the breaching Party commits to and carries out such plan. For the
+avoidance of doubt, termination of this Agreement with respect to any particular
+Product(s) pursuant to this Section 11.4.1 shall not terminate this Agreement
+with respect to any other Product(s).
+
+11.4.2 Disagreement as to Material Breach. If the Parties reasonably and in good
+faith disagree as to whether there has been a Material Breach pursuant to
+Section 11.4.1, above, then subject to Section 12.1, below: (a) the Party that
+disputes that there has been a Material Breach may contest the allegation by
+referring such matter, within ten business (10) days after receipt of the
+corresponding notice of intention to terminate, for resolution to the Parties’
+Chief Executive Officers, who shall meet promptly to discuss the matter and
+determine within ten business (10) days (or such longer period as they mutually
+agree in writing) following referral of such matter, whether or not a Material
+Breach has occurred; (b) the relevant Cure Period with respect thereto shall
+only be tolled during the period from which a dispute is lodged and the Chief
+Executive Officers make a decision (including any such time as this period may
+be extended by mutual agreement) in accordance with the applicable provisions of
+this Agreement; (c) it is understood and agreed that during the pendency of any
+such dispute, all of the terms and conditions of this Agreement shall remain in
+effect and the Parties shall continue to perform all of their respective
+obligations hereunder); and (d) if it is finally and conclusively determined
+that the breaching Party committed such Material Breach, then the breaching
+Party shall have the right to cure such Material Breach after such determination
+within the remainder of the applicable Cure Period provided in Section 11.4.1,
+above.
+
+11.4.3 If the Chief Executive Officers are unable to resolve a dispute within
+the ten (10) day period (or mutually agreed longer period) after it is referred
+to them, the Party allegedly in breach or default shall have the right to have
+the dispute resolved as provided in Section 12.1, below, during which the
+relevant Cure Period with respect to such dispute shall be tolled for not more
+than sixty (60) days.
+
+11.5 Termination for Insolvency.
+
+11.5.1 To the extent permitted by Law, this Agreement may be terminated by
+either Party upon the filing or institution of bankruptcy, reorganization,
+liquidation, or receivership proceedings, or upon an assignment of a substantial
+portion of the assets for the benefit of creditors by the other Party; provided,
+however, that in the event of any involuntary bankruptcy or receivership
+proceeding, such right to terminate shall only become effective if the Party
+consents to the involuntary bankruptcy or receivership or such proceeding is not
+dismissed within ninety (90) days after the filing thereof.
+
+11.5.2 All rights and licenses granted under or pursuant to this Agreement by
+Histogen are, and shall otherwise be deemed to be for purposes of Section 365(n)
+of the Bankruptcy Code, licenses of rights to “intellectual property” as defined
+under Section 101 of the Bankruptcy Code. The Parties agree that either Party,
+as licensee of intellectual property under this Agreement, shall retain and may
+fully exercise all of its rights and elections under the Bankruptcy Code. The
+Parties further agree that in the event of a rejection of this Agreement by
+either Party in any bankruptcy proceeding by or against that Party under the
+Bankruptcy Code, (i) the other Party shall be entitled to a complete duplicate
+of (or complete access to, as appropriate) any such intellectual property and
+all embodiments of such intellectual property, which, if not already in that
+Party’s possession, shall be promptly delivered to it upon written request
+therefor by the Party, and (ii) neither Party shall interfere with the Licensed
+Party’s rights to intellectual property and all embodiments of intellectual
+property, and shall assist and not interfere with the Party obtaining
+intellectual property and all embodiments of intellectual property from another
+entity. The term “embodiments” of intellectual property includes all tangible,
+intangible, electronic, or other embodiments of
+
+ 
+
+-38-
+
+
+
+--------------------------------------------------------------------------------
+
+rights and licenses hereunder, including all Products, data, and tangible assets
+embodying intellectual property, filings with Regulatory Authorities and related
+rights, and Histogen Know-How and Amerimmune Know-How.
+
+11.6 Effects of Termination.
+
+11.6.1 Termination Pursuant to Section 11.3 or 11.4. In the event of termination
+of this Agreement by either Party pursuant to Section 11.3 or 11.4, above,
+notwithstanding anything to the contrary in this Agreement, upon the effective
+date of such termination:
+
+(a) all rights and licenses granted herein to Amerimmune by Histogen shall
+terminate, Amerimmune shall cease any and all Development, Manufacture, and
+Commercialization activities under this Agreement (if any), and any and all
+rights granted by Histogen to Amerimmune shall revert to Histogen;
+
+(b) all rights and licenses granted herein to Histogen by Amerimmune shall
+terminate, Histogen shall cease any and all Development, Manufacture, and
+Commercialization activities under this Agreement (if any), and any and all
+rights granted to Histogen by Amerimmune shall revert to Amerimmune; and
+
+(c) other than as provided in Section 11.7, below, neither Party shall have any
+further obligation to the other Party under this Agreement.
+
+11.7 Surviving Provisions.
+
+11.7.1 Accrued Liabilities. Except as otherwise specifically provided herein,
+expiration or termination of this Agreement shall not relieve the Parties of any
+liability or obligation that accrued prior to the effective date of expiration
+or such termination, nor preclude either Party from pursuing all rights and
+remedies it may have under this Agreement or at law or in equity with respect to
+any breach of this Agreement nor prejudice either Party’s right to obtain
+performance of any obligation. In addition, termination of this Agreement shall
+not terminate provisions that provide by their respective terms for obligations
+or undertakings following the expiration of the term of this Agreement.
+
+11.7.2 Survival. The rights and obligations of the Parties set forth in the
+following Sections and Articles shall survive the expiration or termination of
+this Agreement: Sections 2.2, 2.5, 5.1, 6.4, 6.5, 6.6, 6.7, 6.8, 7.1, 8.1, 8.2,
+8.3, 8.5, 8.7, 8.8, 8.9, 8.10, 11.6, 11.7, 12.1, 12.2, 12.3, 12.4, and 12.5. In
+addition, those other terms and conditions of this Agreement that (i) by their
+nature are intended to survive or (b) are expressly stated to survive
+termination or expiration of this Agreement, shall survive.
+
+11.7.3 Equitable Relief. Termination of this Agreement shall be in addition to,
+and shall not prejudice, either Party’s remedies at law or in equity, including
+either Party’s ability to receive Damages and/or equitable relief with respect
+to any breach of this Agreement, regardless of whether or not such breach was
+the reason for the termination.
+
+11.7.4 Relationship to Other Agreements. Termination of this Agreement, in whole
+or with respect to any Product, shall not affect in any way the terms or
+provisions of any then-existing executed agreement between the Parties.
+
+ARTICLE XII
+
+MISCELLANEOUS
+
+12.1 Alternative Dispute Resolution. Except for any disagreements that are
+within the authority of the JDC or JPC as provided in Article III, above, or
+unless otherwise expressly set forth herein, the Parties agree that any disputes
+arising with respect to the interpretation, performance, enforcement,
+termination, or validity of this Agreement (each, a “Dispute”) shall first be
+presented to the Parties’ respective Chief Executive Officers for resolution. If
+the Parties are unable to resolve a given dispute pursuant to this Section 12.1
+after discussions
+
+ 
+
+-39-
+
+
+
+--------------------------------------------------------------------------------
+
+between the Chief Executive Officers within thirty (30) days (or such longer
+period as the Parties agree in writing) after referring such dispute to the
+Chief Executive Officers, either Party may, at its sole discretion, seek
+resolution of such matter in accordance with Section 12.2, below.
+
+12.2 Binding Arbitration. Subject to Section 12.1, above, if the Parties are
+unable to resolve any such Dispute by negotiation and a Party wishes to pursue
+the matter, such Dispute shall be finally resolved by binding arbitration
+conducted in San Diego, California by JAMS using the JAMS Expedited Arbitration
+Rules for Commercial Disputes, and judgment on the arbitration award may be
+entered in any court having jurisdiction thereof. The arbitration shall be
+conducted before a single arbitrator experienced in the law, the pharmaceutical
+business, and pharmaceutical licensing transactions. If within twenty (20) days
+after initiation of arbitration the Parties are unable to agree on a qualified
+arbitrator, the Parties shall each nominate three (3) arbitrators and the
+Parties shall thereafter confidentially rank the six (6) nominees within five
+business (5) days, and the arbitrator with the lowest score shall be the
+arbitrator. In the event there is a tie and the Parties cannot agree between the
+candidates, JAMS shall choose the arbitrator from the tied candidates. The place
+of arbitration shall be mutually agreed upon by the Parties or, alternatively,
+selected by the arbitrator to be mutually convenient to both Parties. The
+Parties agree that the arbitrator shall have the authority to, but need not,
+permit full and complete discovery, both written and oral, by deposition, to
+establish reasonable additional procedures to facilitate and complete any such
+arbitration within ninety (90) days of the arbitrator’s appointment, and to
+decide any motions brought by either Party, including motions for summary
+judgment and/or adjudication and motions to dismiss, prior to any arbitration
+hearing. Either Party may also apply to the arbitrator for interim injunctive
+relief until the arbitration award is rendered or the controversy is otherwise
+resolved. Either Party also may, without waiving any remedy under this
+Agreement, seek from any court having jurisdiction any injunctive or provisional
+relief necessary to protect such Party’s rights pending the arbitration award.
+The arbitrator shall have no authority to award punitive or any other type of
+damages not measured by a Party’s compensatory damages. Each Party shall bear
+its own costs and expenses and attorneys’ fees and an equal share of the
+arbitrator’s and any administrative fees of arbitration; provided, however, that
+the arbitrator shall have the power to award any remedies, including attorneys’
+fees and costs, available under applicable law. Except to the extent necessary
+to confirm an award or as may be required by law, neither a Party nor the
+arbitrator may disclose the existence, content, or results of an arbitration
+without the prior written consent of both Parties. In no event shall an
+arbitration be initiated after the date when commencement of a legal or
+equitable proceeding based on the dispute would be barred by the applicable
+statute of limitations.
+
+12.3 Governing Law. This Agreement will be governed by, and construed and
+enforced in accordance with, the laws of the State of California and, if
+applicable, the laws of the United States, in any case without reference to
+conflicts of laws principles.
+
+12.4 Assignment.
+
+12.4.1 Generally. This Agreement may not be assigned by any Party, nor may any
+Party delegate its obligations or otherwise transfer licenses or other rights
+created by this Agreement, except as expressly permitted hereunder without the
+prior written consent of the other Party, which consent may be withheld in the
+Party’s sole discretion.
+
+12.4.2 Histogen. Notwithstanding the limitations in Section 12.4.1, above,
+Histogen may assign all of its rights and obligations under this Agreement to
+(a) one or more Affiliates solely as provided in this Section 12.4.2 or (b) its
+successor in interest in connection with the merger, consolidation, or sale of
+all or substantially all of its assets or that portion of its business
+pertaining to the subject matter of this Agreement; provided, however,
+(a) Histogen informs Amerimmune in writing in advance of any such assignment,
+(ii) prior to such assignment becoming effective, the assignee agrees in writing
+to assume performance of all such assigned obligations, and (iii) all Histogen
+Intellectual Property an shall be transferred to such assignee effective as of
+such assignment.
+
+12.4.3 Amerimmune. Notwithstanding the limitations in Section 12.4.1, above,
+Amerimmune may assign this Agreement, or all of its rights or obligations
+hereunder, to (a) one or more Affiliates solely as provided in this
+Section 12.4.3, or (b) its successor in connection with the merger,
+consolidation, or sale of all or substantially all of its assets or that portion
+of its business pertaining to the subject matter of this Agreement; provided,
+however, (i) Amerimmune informs Histogen in writing in advance of any such
+assignment, (ii) prior to
+
+ 
+
+-40-
+
+
+
+--------------------------------------------------------------------------------
+
+such assignment becoming effective, the assignee agrees in writing to assume
+performance of all such assigned obligations, (iii) all Amerimmune Intellectual
+Property and Amerimmune’s interest Joint Collaboration IP shall be transferred
+to such assignee effective as of such assignment; (iv) the proposed assignee has
+not developed or sought to develop a Competitive Product, and (v) Histogen
+receives is share of the Profits associated with such transfer or assignment as
+provided in this Agreement.
+
+12.4.4 Change of Control. Notwithstanding anything to the contrary in this
+Agreement, with respect to any intellectual property rights controlled by the
+permitted assignee of a Party or its Affiliates (if other than one of the
+Parties to this Agreement) involved in any Change of Control of either Party,
+such intellectual property rights shall not be included in the technology and
+intellectual property rights licensed to the other Party hereunder to the extent
+held by such acquirer or its Affiliate (other than the relevant Party to this
+Agreement) prior to such transaction, or to the extent such technology is
+developed outside the scope of activities conducted with respect to the
+Collaboration, Research Program, or Products. The Histogen Intellectual Property
+and the Amerimmune Intellectual Property shall exclude any intellectual property
+owned or controlled by a permitted assignee or successor and not developed in
+connection with the Collaboration, Research Program, or Products Developed,
+Manufactured, or Commercialized pursuant to this Agreement.
+
+12.4.5 All Other Assignments Null and Void. The terms of this Agreement shall be
+binding upon and shall inure to the benefit of the successors, heirs,
+administrators, and permitted assigns of the Parties. In the event of any
+permitted assignment by a Party of its rights and obligations under this
+Agreement, the permitted assignee shall assume all obligations of its assignor
+under this Agreement. Any purported assignment in violation of this Section 12.4
+shall be null and void.
+
+12.5 Force Majeure. If the performance of any part of this Agreement by a Party
+is prevented, restricted, interfered with, or delayed by an occurrence beyond
+the control of such Party (and which did not occur as a result of such Party’s
+financial condition, negligence, or fault), including fire, earthquake, flood,
+embargo, power shortage or failure, acts of war or terrorism, insurrection,
+riot, lockout or other labor disturbance, governmental acts or orders or
+restrictions, acts of God, such Party shall, upon giving written notice to the
+other Party, be excused from such performance to the extent of such prevention,
+restriction, interference, or delay; provided, that the affected Party shall use
+its Commercially Reasonable Efforts to avoid or remove such causes of
+non-performance and shall continue performance with the utmost dispatch whenever
+such cause(s) is(are) removed. For the avoidance of doubt, the coronavirus
+pandemic shall not qualify as a Force Majeure.
+
+12.6 Notices. Unless otherwise agreed by the Parties or specified in this
+Agreement, all notices required or permitted to be given under this Agreement
+shall be in writing and shall be sufficient if: (a) personally delivered;
+(b) sent by registered or certified mail (return receipt requested and postage
+prepaid); (c) sent by express overnight courier service providing evidence of
+receipt and postage prepaid where applicable; (d) by email; or (e) sent by
+facsimile transmission (receipt verified and a copy promptly sent by another
+permissible method of providing notice described in any of clauses (a)-(d)
+above), to each of the address(es) designated below by the Party to be notified,
+which address(es) a Party may update from time-to-time during the Term by notice
+to the other Party:
+
+ 
+
+To Amerimmune:    To Histogen:
+
+Amerimmune LLC
+
+11212 Waples Mill Road
+
+Suite 100
+
+Fairfax, Virginia 22030
+
+Attention: Oral Alpan, M.D.
+
+Telephone: 571.418.4824
+
+Facsimile: 703.577.9065
+
+Email: oalpan@amerimmune.com
+
+  
+
+Histogen, Inc.
+
+16745 West Bernardo Drive
+
+Suite 200
+
+San Diego, California 92127
+
+Attention: CEO
+
+Telephone:
+
+Email:
+
+With a copy to:    With a copy to:
+
+Amerimmune LLC
+
+1212 Waples Mill Road
+
+  
+
+Will Chuchawat, Esq.
+
+Sheppard Mullin Richter & Hampton LLP
+
+ 
+
+-41-
+
+
+
+--------------------------------------------------------------------------------
+
+Suite 100
+
+Fairfax, Virginia 22030
+
+Attention: Ivan Santos, CFO
+
+Telephone:
+
+Facsimile:
+
+Email: isantos@amerimmune.com
+
+ 
+
+and
+
+ 
+
+John Wehrli. Esq.
+
+Wilson Sonsini Goodrich & Rosati
+
+12235 El Camino Real
+
+San Diego, CA 92130-3002
+
+Telephone: 858-350-2313
+
+Facsimile: 858350-2399
+
+Email: jwehrli@wsgr.com
+
+  
+
+333 South Hope Street, 43rd Floor
+
+Los Angeles, CA 90071
+
+Telephone: 213-617-1555
+
+wchuchawat@sheppardmullin.com
+
+Any such notices shall be effective upon the date of receipt by the Party to
+whom it is addressed.
+
+12.7 Waiver. Except as otherwise expressly provided in this Agreement, any term
+of this Agreement may be waived only by a written instrument executed by a duly
+authorized representative of the Party waiving compliance. A delay or failure of
+either Party at any time to require performance of any provision of this
+Agreement shall in no manner affect such Party’s rights at a later time to
+thereafter enforce such provision. No waiver by either Party of any condition or
+term in any one or more instances shall be construed as a further or continuing
+waiver of such condition or term or of another condition or term.
+
+12.8 Severability. If any provision of this Agreement should be adjudicated to
+be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith
+a valid, legal, and enforceable substitute provision that most nearly reflects
+the original intent of the Parties, and all other provisions of this Agreement
+shall remain in full force and effect and shall be liberally construed in order
+to carry out the intentions of the Parties as nearly as may be possible. If the
+Parties cannot agree upon a substitute provision, the invalid, illegal, or
+unenforceable provision of this Agreement shall not affect the validity of this
+Agreement as a whole, unless the invalid, illegal, or unenforceable provision is
+of such essential importance to this Agreement that it is to be reasonably
+assumed that the Parties would not have entered into this Agreement without the
+invalid, illegal, or unenforceable provision.
+
+12.9 Entire Agreement. Except as set forth in this Section 12.9, this Agreement,
+which includes its attached Exhibits and Schedules, together with the Amended
+and Restated CDA, constitutes the entire agreement between the Parties relating
+to its subject matter, and supersedes all prior and contemporaneous agreements,
+representations or understandings, either written or oral, between the Parties
+with respect to such subject matter, including the Amended and Restated CDA and
+the Term Sheet, each of which are hereby terminated as of the Effective Date of
+this Agreement; it being understood and agreed, however, that the Amended and
+Restated CDA shall continue to apply to the “Confidential Information” (as such
+term is defined in the Amended and Restated CDA) disclosed thereunder.
+
+12.10 Modification. No modification, amendment, or addition to this Agreement,
+or any provision hereof, shall be effective unless reduced to writing and signed
+by a duly authorized representative of each Party. No provision of this
+Agreement shall be varied, contradicted, or explained by any oral agreement,
+course of dealing or performance, or any other matter not set forth in an
+agreement in writing and signed by a duly authorized representative of each
+Party.
+
+12.11 Independent Contractors; No Intended Third Party Beneficiaries. Nothing
+contained in this Agreement is intended or shall be deemed or construed to
+create any relationship of employer and employee, agent and principal,
+partnership, or joint venture between the Parties. Each Party is an independent
+contractor. Neither Party shall assume, either directly or indirectly, any
+liability of or for the other Party. Neither Party shall have any express or
+implied right or authority to assume or create any obligations on behalf of, or
+in the name of, the other Party, nor to bind the other Party to any contract,
+agreement, or undertaking with any Third Party. There are no
+
+ 
+
+-42-
+
+
+
+--------------------------------------------------------------------------------
+
+express or implied third party beneficiaries hereunder, except for the
+indemnitees identified in Sections 10.1 and 10.2, above.
+
+12.12 Counterparts. This Agreement may be executed in two (2) counterparts, each
+of which shall be deemed an original, and both of which together shall
+constitute one and the same instrument. Any such counterpart, to the extent
+delivered by means of a fax machine or by .pdf, .tif, .gif, .jpeg, or similar
+attachment to electronic mail (any such delivery, an “Electronic Delivery”)
+shall be treated in all manner and respects as an original executed counterpart
+and shall be considered to have the same binding legal effect as if it were the
+original signed version thereof delivered in person. Neither Party shall raise a
+Party’s use of Electronic Delivery to deliver a signature or the fact that any
+signature or agreement or instrument was transmitted or communicated through the
+use of Electronic Delivery as a claim or defense with respect to the formation,
+amendment, restatement, or other modification of a contract, and each Party
+waives any such claim or defense, except to the extent that such claim or
+defense relates to lack of authenticity.
+
+12.13 Equitable Relief. Notwithstanding anything to the contrary herein, the
+Parties shall be entitled to seek equitable relief, including an injunction and
+specific performance, as a remedy for any breach of this Agreement. Such
+remedies shall not be deemed to be the exclusive remedies for a breach of this
+Agreement but shall be in addition to all other remedies available at law or
+equity.
+
+12.14 Further Assurances. Each Party shall execute, acknowledge, and deliver
+such further instruments, and do all such other acts, as may be necessary or
+appropriate in order to carry out the expressly stated purposes and the clear
+intent of this Agreement.
+
+[remainder of page intentionally left blank]
+
+ 
+
+-43-
+
+
+
+--------------------------------------------------------------------------------
+
+Intending to be legally bound, the Parties have caused this Agreement to be
+executed below by their respective duly authorized officers as of the Effective
+Date.
+
+ 
+
+HISTOGEN, INC.: On behalf of itself and its Affiliates By:  
+
+/s/ Richard W. Pascoe
+
+Print Name:   Richard W. Pascoe Title:   President and CEO Date:   10/26/2020
+AMMERIMMUNE LLC: On behalf of itself and its Affiliates By:   /s/ Oral Alpan,
+M.D. Print Name:   Oral Alpan, M.D. Title:   Chief Executive Officer Date:  
+10/26/2020
+
+SIGNATURE PAGE TO COLLABORATIVE DEVELOPMENT
+
+AND COMMERCIALIZATION AGREEMENT
+
+
+
+--------------------------------------------------------------------------------
+
+Exhibit A
+
+Press Release
+
+ 
+
+LOGO [g92015g59w18.jpg]   
+
+CONTACT:
+
+ 
+
+Susan A. Knudson
+
+Executive Vice President & CFO
+
+Histogen Inc.
+
+ir@histogen.com
+
+Histogen and Amerimmune Enter into a Collaborative Development and
+Commercialization Agreement for Emricasan in the Treatment of COVID-19
+
+Histogen Receives IND Approval from FDA to Initiate a Phase 1 Study of Emricasan
+in Mild-COVID-19 Patients to Assess Safety and Tolerability
+
+Amerimmune to Lead Development Efforts of Emricasan in a Phase 1 Study in
+Mild-COVID-19 Patients Expected to Commence as Early as the End of 2020
+
+SAN DIEGO, October 27, 2020 — Histogen Inc. (NASDAQ: HSTO), a clinical-stage
+therapeutics company focused on developing potential first-in-class therapeutics
+that ignite the body’s natural process to repair and maintain healthy biological
+function, today announced entering into a Collaborative Development and
+Commercialization Agreement with Amerimmune LLC to jointly develop emricasan, an
+orally active caspase inhibitor, for the treatment of COVID-19. Additionally,
+Histogen has received Investigational New Drug (IND) approval from the United
+States Food and Drug Administration (FDA) to initiate a Phase 1 study of
+emricasan in mild-COVID-19 patients to assess safety and tolerability.
+Amerimmune, which will lead the development efforts of emricasan, has selected
+clinical sites at two major medical centers in the New York City metropolitan
+area to conduct the study. Amerimmune is pursuing non-dilutive funding in order
+to support the clinical program and anticipates initiating the Phase 1 study as
+early as the end of 2020.
+
+Under the terms of the collaboration, Histogen will retain ownership and
+oversight over emricasan and responsibility for all regulatory filings and
+maintaining its existing caspase inhibitor patent portfolio. Amerimmune, in
+collaboration with Histogen, will fund and lead the emricasan development
+efforts and maintain its own portfolio of patents for caspase inhibition and
+immunotherapy. Additionally, Amerimmune has been granted an option to
+commercialize emricasan under certain conditions for the sole purpose of
+supporting future third-party partnering transactions. Should any such
+partnering transaction emerge, Histogen and
+
+ 
+
+A-1-
+
+
+
+--------------------------------------------------------------------------------
+
+Amerimmune will share profits equally. The parties will manage the collaboration
+under a joint development and partnering committee governance structure.
+
+“Since completing the merger with Conatus Pharmaceuticals in the second quarter,
+we have been evaluating opportunities to create value from the emricasan asset,
+which we believe can be best accomplished in partnership with Amerimmune in the
+potential treatment of COVID-19. The Amerimmune team brings both a strong
+caspase inhibitor scientific background and relevant technologies for the
+treatment of COVID-19 using caspase inhibitors to this collaboration,” said
+Richard Pascoe, President and CEO of Histogen. “With Amerimmune leading the
+development efforts related to emricasan, Histogen will remain focused on
+delivering the top line data results in the fourth quarter of 2020 for its
+HST-001 Phase 1b/2a trial for androgenic alopecia in men, evaluating a clinical
+pathway for HST-002 as a dermal filler, and continuing to progress our HST-003
+program for regeneration of cartilage in the knee,” concluded Pascoe.
+
+“We are delighted to work in collaboration with Histogen to explore the
+potential role of caspase inhibition as a therapy for reducing disease severity
+and progression of COVID-19,” said Dr. Oral Alpan, CEO of Amerimmune. “We
+believe our research and development efforts over the last decade have enabled
+us to make important advancements in our understanding of how SARS-CoV-2
+compromises the immune system. We are encouraged by our progress and look
+forward to advancing emricasan into the clinic as early as the end of 2020,“
+concluded Dr. Alpan.
+
+About Emricasan
+
+Emricasan is a first-in-class, orally active, pan-caspase inhibitor designed to
+reduce the activity of enzymes that mediate inflammation and apoptosis. Histogen
+believes that by reducing the activity of these enzymes, caspase inhibitors have
+the potential to interrupt the progression of a variety of diseases. To date,
+emricasan has been studied in over 950 patients in 19 completed clinical trials
+across a broad range of liver diseases. In NASH cirrhosis patients in multiple
+clinical Phase II trials conducted by Conatus, emricasan demonstrated rapid and
+sustained reductions in elevated levels of key biomarkers of inflammation and
+cell death. Similarly, elevated biomarkers are also believed to play a role in
+the severity and progression of COVID-19.
+
+About Histogen
+
+Histogen Inc. is a clinical-stage therapeutics company focused on developing
+potential first-in-class restorative therapeutics that ignite the body’s natural
+process to repair and maintain healthy biological function. Histogen’s
+innovative technology platform utilizes cell conditioned media and extracellular
+matrix materials produced by hypoxia-induced multipotent cells. Histogen’s
+proprietary, reproducible manufacturing process provides targeted solutions
+across a broad range of therapeutic indications including hair growth, dermal
+rejuvenation, joint cartilage regeneration and spinal disk repair. For more
+information, please visit www.histogen.com.
+
+ 
+
+A-2-
+
+
+
+--------------------------------------------------------------------------------
+
+About Amerimmune
+
+Amerimmune LLC is a research center and immunology laboratory with a strong
+focus on identifying underlying mechanisms of immune disorders. Amerimmune’s
+mission is to bring relevant science, data, and diagnostic and therapeutic
+solutions to diseases that involve the immune system. Amerimmune LLC is a
+spinoff of Amerimmune Diagnostics LLC, which is focused on establishing a
+network of physician-owned immunology labs across the United States. Amerimmune
+Diagnostics’ clinical approach led to the development of the innovative
+therapeutics technology upon which Amerimmune was founded. When the COVID-19
+pandemic emerged early this year, Amerimmune brought its expertise to bear
+against this devastating disease. Amerimmune is a privately held
+development-stage company based in Fairfax, VA. For more information and to
+explore partnering opportunities, please visit www.amerimmune.com.
+
+Forward-Looking Statements
+
+This press release contains forward-looking statements within the meaning of the
+“safe harbor” provisions of the Private Securities Litigation Reform Act of 1995
+and other Federal securities laws. For example, we are using forward-looking
+statements when we discuss our future operations and our ability to successfully
+initiate and complete clinical trials, obtain clinical trial data and achieve
+regulatory milestones and related timing, including those related to the planned
+Phase 1 study of emricasan for the treatment of COVID-19; the nature, strategy
+and focus of our business; the sufficiency of our and Amerimmune’s cash
+resources and ability to commence the planned Phase 1 study of emricasan and
+achieve value for our stockholders; and the development and commercial potential
+and potential benefits of any of our product candidates and the Collaborative
+Development and Commercialization Agreement with Amerimmune or any other
+collaboration agreements. We may not actually achieve the plans, carry out the
+intentions or meet the expectations or projections disclosed in the
+forward-looking statements and you should not place undue reliance on these
+forward-looking statements. Because such statements deal with future events and
+are based on our current expectations, they are subject to various risks and
+uncertainties and actual results, performance or achievements of ours that could
+differ materially from those described in or implied by the statements in this
+press release, including: the uncertainties associated with the clinical
+development and regulatory approval of our product candidates and Amerimmune’s
+ability to further develop emricasan for the treatment of COVID-19, including
+the complexity and length of studies required to commercialize emricasan for
+COVID-19 and potential delays in the commencement, enrollment, and completion of
+clinical trials, such as the planned emricasan Phase 1 study for the treatment
+of COVID-19; the uncertainties associated with Amerimmune’s pursuit and receipt
+of non-dilutive capital for the advancement of emricasan, including any
+potential government grants; Histogen’s dependence on its collaboration partner,
+Amerimmune, to carry out the development of emricasan and the potential for
+delays in the timing of regulatory approval; competition in the COVID-19 market
+and other markets in which Histogen and its collaboration partner operate; risks
+related to business interruptions to Histogen and/or Amerimmune, including the
+outbreak of COVID-19 coronavirus, which could seriously harm our respective
+financial conditions and increase our respective costs and expenses; the
+potential for adverse reactions to emricasan; and market conditions. The
+
+ 
+
+A-3-
+
+
+
+--------------------------------------------------------------------------------
+
+foregoing review of important factors that could cause actual events to differ
+from expectations should not be construed as exhaustive and should be read in
+conjunction with statements that are included herein and elsewhere, including
+those risks discussed in our filings with the Securities and Exchange
+Commission. Except as otherwise required by law, we disclaim any intention or
+obligation to update or revise any forward-looking statements, which speak only
+as of the date hereof, whether as a result of new information, future events, or
+circumstances or otherwise.
+
+#                #                 #
+
+ 
+
+A-4-
+
+
+
+--------------------------------------------------------------------------------
+
+Schedule 1
+
+Amerimmune Patents
+
+ 
+
+Status
+
+  
+
+Application No.
+
+  
+
+ALG Docket No.
+
+  
+
+Filing Date
+
+  
+
+Title
+
+Pending    6x/xxx,xxx    AME-0001-PV    14-xxx-2020    Treatment for SARS-CoV-2
+Pending    6x/xxx,xxx    AME-0001-PV2    22-xxx-2020    Treatment for SARS-CoV-2
+Pending    6x/xxx,xxx    AME-0001-PV3    05-xxx-2020    Treatment for SARS-CoV-2
+Pending    6x/xxx,xxx    AME-0010-PV    02-xxx-2020    TREATMENT FOR DISEASES
+CAUSED BY RNA VIRUSES Pending    6x/xxx,xxx    AME-0010-PV2    22-xxx-2020   
+METHODS FOR DETECTING INFECTIONS CAUSED BY RNA VIRUSES, INCLUDING COVID-19
+Pending    6x/xxx,xxx    AME-0020-PV    22-xxx-2020    TREATMENT OF CONDITIONS
+CAUSED BY RNA VIRUS-ASSOCIATED ABERRANT RED BLOOD CELL AGGREGATION
+
+ 
+
+S-1-1
+
+
+
+--------------------------------------------------------------------------------
+
+Schedule 2
+
+Histogen Patents
+
+EMRICASAN
+
+ 
+
+Country
+
+name
+
+  
+
+Type name
+
+  
+
+Patent / Design
+
+number
+
+  
+
+Current renewal
+
+date
+
+  
+
+Current
+
+annuity
+
+  
+
+Est. expiry
+
+date
+
+Australia
+
+  
+
+Patent
+
+  
+
+2007330478
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Canada
+
+  
+
+Large Entity Granted Patent
+
+  
+
+2669849
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+China
+
+  
+
+Granted Patent
+
+  
+
+200780045311.8
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+China
+
+  
+
+Granted Patent
+
+  
+
+201410058519.5
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Denmark
+
+  
+
+European Patent
+
+  
+
+2091910
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+France
+
+  
+
+European Patent
+
+  
+
+2091910
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Germany
+
+  
+
+European Patent
+
+  
+
+602007038268.8
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Great Britain
+
+  
+
+European Patent
+
+  
+
+2091910
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Hong Kong
+
+  
+
+Granted New Law Patent
+
+  
+
+1199885
+
+  
+
+3-Dec-21
+
+  
+
+15
+
+  
+
+3-Dec-27
+
+Israel
+
+  
+
+Patent
+
+  
+
+198732
+
+  
+
+3-Dec-21
+
+  
+
+15
+
+  
+
+3-Dec-27
+
+Italy
+
+  
+
+European Patent
+
+  
+
+502014000002368
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Japan
+
+  
+
+Patent-exam.req.on/after01Apr2004
+
+  
+
+5495787
+
+  
+
+14-Mar-21
+
+  
+
+8
+
+  
+
+3-Dec-27
+
+Mexico
+
+  
+
+Patent
+
+  
+
+286788
+
+  
+
+3-Dec-21
+
+  
+
+15
+
+  
+
+3-Dec-27
+
+Netherlands
+
+  
+
+European Patent
+
+  
+
+2091910
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Singapore
+
+  
+
+Granted New Law Patent
+
+  
+
+200903593.2
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+South Korea
+
+  
+
+New Law Patent
+
+  
+
+1125932
+
+  
+
+5-Mar-21
+
+  
+
+10
+
+  
+
+3-Dec-27
+
+Spain
+
+  
+
+European Patent
+
+  
+
+7859033.8
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Sweden
+
+  
+
+European Patent
+
+  
+
+7859033.8
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Switzerland
+
+  
+
+European Patent
+
+  
+
+2091910
+
+  
+
+3-Dec-20
+
+  
+
+14
+
+  
+
+3-Dec-27
+
+Taiwan
+
+  
+
+Patent
+
+  
+
+96146304
+
+  
+
+21-Jul-21
+
+  
+
+11
+
+  
+
+5-Dec-27
+
+U.S.A.
+
+  
+
+Large Entity Patent
+
+  
+
+7692038
+
+  
+
+6-Oct-21
+
+  
+
+3
+
+  
+
+10-Jul-28
+
+OTHER CASPASE MODULATORS
+
+ 
+
+Country
+
+  
+
+Type name
+
+  
+
+Application Number
+
+  
+
+Status
+
+  
+
+Note: Patent Family
+
+Patent Cooperation Treaty    Patent    PCT/US2019/039702    Published   
+Novel Caspase 040 Taiwan    Patent    109107427 ��  Filed Wait Exam    Novel
+Caspase 041 Patent Cooperation Treaty    Patent    PCT/US2020/021324    Pending
+   Novel Caspase 041 U.S.A.    Patent    16/812,063    Pending    Novel Caspase
+041
+
+ 
+
+S-2-1
+
+
+
+--------------------------------------------------------------------------------
+
+Schedule 1.172
+
+Caspase Modulators Owned Or Controlled By Histogen Excluded From a Product
+
+ 
+
+S-1.172-1
+Exhibit 10.2
+
+SALE AND SERVICING AGREEMENT
+
+among
+
+NISSAN AUTO RECEIVABLES 2020-A OWNER TRUST,
+
+as Issuer,
+
+NISSAN AUTO RECEIVABLES CORPORATION II,
+
+as Seller,
+
+NISSAN MOTOR ACCEPTANCE CORPORATION,
+
+as Servicer
+
+and
+
+U.S. BANK NATIONAL ASSOCIATION,
+
+as Indenture Trustee
+
+Dated as of April 29, 2020
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+ 
+
+          Page  
+
+ARTICLE I.         DEFINITIONS
+
+     1  
+
+SECTION 1.01
+
+   Definitions      1  
+
+SECTION 1.02
+
+   Usage of Terms      23  
+
+ARTICLE II.         CONVEYANCE OF RECEIVABLES
+
+     23  
+
+SECTION 2.01
+
+   Conveyance of Receivables      23  
+
+SECTION 2.02
+
+   Custody of Receivable Files      24  
+
+SECTION 2.03
+
+   Acceptance by Issuer      25  
+
+ARTICLE III.         THE RECEIVABLES
+
+     25  
+
+SECTION 3.01
+
+   Representations and Warranties of the Seller with Respect to the Receivables
+     25  
+
+SECTION 3.02
+
+   Repurchase upon Breach      25  
+
+SECTION 3.03
+
+   Duties of Servicer as Custodian      26  
+
+SECTION 3.04
+
+   Instructions; Authority To Act      27  
+
+SECTION 3.05
+
+   Custodian’s Indemnification      27  
+
+SECTION 3.06
+
+   Effective Period and Termination      27  
+
+ARTICLE IV.         ADMINISTRATION AND SERVICING OF RECEIVABLES
+
+     27  
+
+SECTION 4.01
+
+   Duties of Servicer      27  
+
+SECTION 4.02
+
+   Collection of Receivable Payments      29  
+
+SECTION 4.03
+
+   Realization upon Receivables      29  
+
+SECTION 4.04
+
+   Maintenance of Security Interests in Financed Vehicles      29  
+
+SECTION 4.05
+
+   Covenants of Servicer      30  
+
+SECTION 4.06
+
+   Purchase of Receivables upon Breach      30  
+
+SECTION 4.07
+
+   Servicing Fee and Expenses      30  
+
+SECTION 4.08
+
+   Servicer’s Certificate      31  
+
+SECTION 4.09
+
+   Communication among Noteholders      31  
+
+SECTION 4.10
+
+   Annual Statement as to Compliance; Notice of Default      31  
+
+SECTION 4.11
+
+   Annual Registered Public Accounting Firm Attestation      32  
+
+SECTION 4.12
+
+   Appointment of Subservicer      33  
+
+SECTION 4.13
+
+   Fidelity Bond      33  
+
+SECTION 4.14
+
+   Administrator Compensation      33  
+
+ 
+
+i   (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+(continued)
+
+ 
+
+          Page  
+
+ARTICLE V.         DISTRIBUTIONS; ACCOUNTS; STATEMENTS TO THE CERTIFICATEHOLDERS
+AND THE NOTEHOLDERS
+
+     33  
+
+SECTION 5.01
+
+   Establishment of Accounts      33  
+
+SECTION 5.02
+
+   Collections      36  
+
+SECTION 5.03
+
+   Application of Collections      37  
+
+SECTION 5.04
+
+   [Reserved]      37  
+
+SECTION 5.05
+
+   Additional Deposits      37  
+
+SECTION 5.06
+
+   Payments and Distributions      37  
+
+SECTION 5.07
+
+   Reserve Account      39  
+
+SECTION 5.08
+
+   Statements to Certificateholders and Noteholders      39  
+
+ARTICLE VI.         THE SELLER
+
+     41  
+
+SECTION 6.01
+
+   Representations of Seller      41  
+
+SECTION 6.02
+
+   Compliance with Organizational Documents      43  
+
+SECTION 6.03
+
+   Liability of Seller; Indemnities      43  
+
+SECTION 6.04
+
+   Merger or Consolidation of, or Assumption of the Obligations of, Seller     
+44  
+
+SECTION 6.05
+
+   Limitation on Liability of Seller and Others      45  
+
+SECTION 6.06
+
+   Seller May Own Certificates or Notes      45  
+
+SECTION 6.07
+
+   Sarbanes-Oxley Act Requirements      46  
+
+ARTICLE VII.         THE SERVICER
+
+     46  
+
+SECTION 7.01
+
+   Representations of Servicer      46  
+
+SECTION 7.02
+
+   Indemnities of Servicer      47  
+
+SECTION 7.03
+
+   Merger or Consolidation of, or Assumption of the Obligations of, Servicer   
+  48  
+
+SECTION 7.04
+
+   Limitation on Liability of Servicer and Others      49  
+
+SECTION 7.05
+
+   NMAC Not To Resign as Servicer      49  
+
+ARTICLE VIII.         DEFAULT
+
+     50  
+
+SECTION 8.01
+
+   Servicer Default      50  
+
+SECTION 8.02
+
+   Appointment of Successor      51  
+
+SECTION 8.03
+
+   Notification      52  
+
+SECTION 8.04
+
+   Waiver of Past Defaults      52  
+
+��
+
+ii   (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+TABLE OF CONTENTS
+
+(continued)
+
+ 
+
+          Page  
+
+ARTICLE IX.         TERMINATION; RELEASE OF RECEIVABLES
+
+     53  
+
+SECTION 9.01
+
+   Optional Purchase of All Receivables      53  
+
+SECTION 9.02
+
+   Release of Receivables      53  
+
+SECTION 9.03
+
+   Termination      54  
+
+SECTION 9.04
+
+   Rights of the Certificateholders      54  
+
+ARTICLE X.         MISCELLANEOUS
+
+     54  
+
+SECTION 10.01
+
+   Amendment      54  
+
+SECTION 10.02
+
+   Protection of Title to Trust      55  
+
+SECTION 10.03
+
+   Notices      56  
+
+SECTION 10.04
+
+   Limitations on Rights of Others      57  
+
+SECTION 10.05
+
+   Severability      57  
+
+SECTION 10.06
+
+   Separate Counterparts and Electronic Signature      57  
+
+SECTION 10.07
+
+   Headings      57  
+
+SECTION 10.08
+
+   Governing Law      58  
+
+SECTION 10.09
+
+   Assignment by Issuer      58  
+
+SECTION 10.10
+
+   Nonpetition Covenant      58  
+
+SECTION 10.11
+
+   Limitation of Liability of Owner Trustee and Indenture Trustee      58  
+
+SECTION 10.12
+
+   Waivers      59  
+
+SECTION 10.13
+
+   Dispute Resolution      59  
+
+SECTION 10.14
+
+   Cooperation with Voting      62  
+
+ 
+
+iii   (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SALE AND SERVICING AGREEMENT, dated as of April 29, 2020 (this “Agreement”),
+among NISSAN AUTO RECEIVABLES 2020-A OWNER TRUST, a Delaware statutory trust
+(the “Issuer”), NISSAN AUTO RECEIVABLES CORPORATION II, a Delaware corporation
+(the “Seller”), NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation in
+its individual capacity (in such capacity, “NMAC”) and as Servicer (in such
+capacity, the “Servicer”), and U.S. Bank National Association, a national
+banking association, as indenture trustee (the “Indenture Trustee”). Capitalized
+terms used herein without definition shall have the respective meanings assigned
+to such terms in Article I.
+
+WHEREAS, the Issuer desires to purchase a portfolio of receivables arising in
+connection with retail installment sales contracts secured by new, near-new or
+used automobiles and light-duty trucks originated by NMAC in the ordinary course
+of business and sold to the Seller;
+
+WHEREAS, the Seller is willing to sell such receivables to the Issuer; and
+
+WHEREAS, the Servicer is willing to service such receivables.
+
+NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
+contained, the parties hereto hereby agree as follows:
+
+ARTICLE I.
+
+Definitions
+
+SECTION 1.01 Definitions. Except as otherwise provided in this Agreement,
+whenever used herein, the following words and phrases, unless the context
+otherwise requires, shall have the following respective meanings:
+
+“60-Day Delinquent Receivables” means, as of any date of determination, all
+Receivables (other than Repurchased Receivables and Defaulted Receivables) that
+are sixty (60) or more days delinquent as of such date (or, if such date is not
+the last day of a Collection Period, as of the last day of the Collection Period
+immediately preceding such date), as determined in accordance with the
+Servicer’s Customary Servicing Practices.
+
+“Account Property” means the Accounts, all amounts and investments held from
+time to time in any Account (whether in the form of deposit accounts, Physical
+Property, book-entry securities, uncertificated securities or otherwise), and
+all proceeds of the foregoing.
+
+“Accounts” means, collectively, the Collection Account and the Reserve Account.
+
+“Action” shall have the meaning assigned to such term in Section 11.03(a) of the
+Indenture.
+
+“Adjusted Pool Balance” means, at any time, an amount equal to the Pool Balance
+minus the YSOC Amount.
+
+“Administration Agreement” means the Administration Agreement, dated as of the
+Closing Date, among the Administrator, the Issuer, the Indenture Trustee and the
+Owner Trustee.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Administrator” means NMAC, or any successor Administrator under the
+Administration Agreement.
+
+“Affiliate” means, with respect to any specified Person, any other Person
+controlling or controlled by or under common control with such specified Person.
+For the purposes of this definition, “control,” when used with respect to any
+specified Person, means the power to direct the management and policies of such
+Person, directly or indirectly, whether through the ownership of voting
+securities, by contract or otherwise; and the term “controlling” and
+“controlled” have meanings correlative to the foregoing.
+
+“Amount Financed” with respect to any Receivable, means the amount advanced
+under the Receivable toward the purchase price of the related Financed Vehicle
+and any related costs, including but not limited to accessories, insurance
+premiums, service and warranty contracts and other items customarily financed as
+part of retail automobile and light-duty truck installment sale contracts.
+
+“Annual Percentage Rate” or “APR” of a Receivable means the annual rate of
+finance charges stated in such Receivable.
+
+“Applicant” shall have the meaning assigned to such term in Section 7.01 of the
+Indenture.
+
+“Asset Representations Review Agreement” means the Asset Representations Review
+Agreement, dated as of the date hereof, between the Issuer, the Sponsor, the
+Servicer and the Asset Representations Reviewer.
+
+“Asset Representations Reviewer” means Clayton Fixed Income Services LLC, or any
+successor Asset Representations Reviewer under the Asset Representations Review
+Agreement.
+
+“Asset Review” shall have the meaning assigned to such term in the Asset
+Representations Review Agreement.
+
+“Assignment” means the document of assignment attached to the Purchase Agreement
+as Exhibit A.
+
+“Authorized Officer” means (a) with respect to the Issuer, (i) any officer of
+the Owner Trustee who is authorized to act for the Owner Trustee in matters
+relating to the Issuer and who is identified on the list of Authorized Officers
+delivered by the Owner Trustee to the Indenture Trustee on the Closing Date and
+(ii) so long as the Administration Agreement is in effect, the President, any
+Vice President, the Treasurer, any Assistant Treasurer, the Secretary, and any
+Assistant Secretary of the Administrator, (b) with respect to the Seller or the
+Servicer, any chairman of the board, the president, any executive vice
+president, any vice president, the treasurer, any assistant treasurer or the
+controller of the Seller or the Servicer, as applicable, (c) with respect to the
+Indenture Trustee, any officer within the Corporate Trust Office of the
+Indenture Trustee, including any Vice President, Assistant Vice President,
+Secretary, Assistant Secretary or any other officer of the Indenture Trustee
+customarily performing functions similar to those performed by any of the above
+designated officers and also, with respect to a particular matter, any other
+officer to whom such matter is referred because of such officer’s knowledge of
+
+ 
+
+   2    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+and familiarity with the particular subject and who, in each case, shall have
+direct responsibility for the administration of the Indenture and (d) with
+respect to the Owner Trustee, any officer in the Corporate Trust Administration
+Department of the Owner Trustee with direct responsibility for the
+administration of the Trust Agreement and the Basic Documents on behalf of the
+Owner Trustee.
+
+“Available Amounts” means, with respect to any Distribution Date, the sum of
+(i) all Collections received by the Servicer during the related Collection
+Period, (ii) the sum of the Repurchase Payments deposited into the Collection
+Account with respect to each Receivable that is to become a Repurchased
+Receivable on such Distribution Date and (iii) in the case of an Optional
+Purchase, the Optional Purchase Price.
+
+“Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. § 101 et
+seq.
+
+“Bankruptcy Remote Party” means each of NARC II, the Issuer, any other trust
+created by NARC II or any limited liability company or corporation wholly owned
+by NARC II.
+
+“Base Servicing Fee” means the fee payable to the Servicer on each Distribution
+Date for services rendered during the related Collection Period, which shall be
+equal to one-twelfth of the Servicing Rate multiplied by the Pool Balance as of
+the close of business on the last day of the immediately preceding Collection
+Period or, with respect to the first Distribution Date, the Original Pool
+Balance.
+
+“Basic Documents” means the Purchase Agreement, the Trust Agreement, the
+Certificate of Trust, this Agreement, the Indenture, the Administration
+Agreement, the Asset Representations Review Agreement, the Note Depository
+Agreement and the other documents and certificates delivered in connection
+herewith and therewith.
+
+“Benefit Plan” means an “employee benefit plan” as defined in Section 3(3) of
+ERISA, which is subject to the provisions of Title I of ERISA, a “plan”
+described in and subject to Section 4975 of the Code or any entity whose
+underlying assets include “plan assets” by reason of an employee benefit plan’s
+or plan’s investment in the entity.
+
+“Book-Entry Notes” means a beneficial interest in the Notes, ownership and
+transfers of which shall be made through book entries by a Clearing Agency as
+described in Section 2.10 of the Indenture.
+
+“Business Day” means any day except a Saturday, a Sunday or a day on which banks
+in the city and state where the Corporate Trust Office is located, New York,
+New York, Franklin, Tennessee, Irving, Texas or Wilmington, Delaware are
+authorized or obligated by law, regulation, executive order or governmental
+decree to be closed.
+
+“Certificate” means any of the Certificates executed by the Issuer and
+authenticated by the Owner Trustee, evidencing a beneficial ownership interest
+in the Trust, substantially in the form set forth in Exhibit A to the Trust
+Agreement.
+
+ 
+
+   3    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Certificate Balance” means, as of any Distribution Date, the Original
+Certificate Balance, reduced by all amounts distributed to the
+Certificateholders pursuant to Section 5.06(a)(viii) of this Agreement and/or
+Section 5.04(b)(6) of the Indenture (but in no event less than zero). For the
+purposes of determining whether the vote of the requisite percentage of
+Certificateholders necessary to effect any consent, waiver, request or demand
+shall have been obtained, the Certificate Balance shall be deemed to be reduced
+by the amount equal to the balance (without giving effect to this provision)
+evidenced by any Certificate registered in the name of the Seller, the Servicer
+or any Person actually known to an Authorized Officer of the Owner Trustee or
+the Indenture Trustee, as the case may be, to be the Seller or the Servicer or
+any of their Affiliates and the vote of any such party shall be excluded for
+such calculation (unless at such time all Certificates are then owned by the
+Seller or the Servicer or any of their Affiliates).
+
+“Certificate Distribution Account” means an Eligible Account established by the
+Owner Trustee pursuant to Section 5.01(a) of the Trust Agreement.
+
+“Certificate Factor” means, with respect to any Distribution Date, a seven-digit
+decimal figure obtained by dividing the Certificate Balance as of the close of
+business on the last day of the related Collection Period by the Original
+Certificate Balance.
+
+“Certificate of Title” means, with respect to any Financed Vehicle, the
+certificate of title or other documentary evidence of ownership of such Financed
+Vehicle as issued by the department, agency or official of the jurisdiction
+(whether in paper or electronic form) in which such Financed Vehicle is titled
+responsible for accepting applications for, and maintaining records regarding,
+certificates of title and liens thereon.
+
+“Certificate of Trust” means the Certificate of Trust filed with respect to the
+formation of the Issuer pursuant to Section 3810(a) of the Statutory Trust Act.
+
+“Certificate Owner” means, with respect to a Certificate, any Person who is the
+beneficial owner of such Certificate.
+
+“Certificate Pool Factor” means, with respect to any Distribution Date, a seven
+digit decimal figure obtained by dividing the Certificate Balance as of the
+close of business on the last day of the related Collection Period by the
+Original Pool Balance.
+
+“Certificate Register” means the register maintained by the Certificate
+Registrar pursuant to Section 3.03 of the Trust Agreement recording the names of
+the Certificateholders.
+
+“Certificate Registrar” means U.S. Bank National Association, unless and until a
+successor thereto is appointed pursuant to Section 3.03 of the Trust Agreement.
+The Certificate Registrar initially designates its offices at 190 South LaSalle
+Street, 7th Floor, Chicago, IL 60603, Attention: NAROT 2020-A, as its offices
+for purposes of Section 3.03 of the Trust Agreement.
+
+“Certificateholder” means a Person in whose name a Certificate is registered in
+the Certificate Register.
+
+“Class” means any one of the classes of the Notes.
+
+ 
+
+   4    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Class A-1 Final Scheduled Distribution Date” means April 15, 2021.
+
+“Class A-1 Interest Rate” means 0.97793% per annum.
+
+“Class A-1 Note” means any of the 0.97793% Asset Backed Notes, Class A-1, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-1 Noteholder” means the Person in whose name a Class A-1 Note is
+registered in the Note Register.
+
+“Class A-2 Final Scheduled Distribution Date” means December 15, 2022.
+
+“Class A-2 Interest Rate” means 1.45% per annum.
+
+“Class A-2 Note” means any of the 1.45% Asset Backed Notes, Class A-2, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-2 Noteholder” means the Person in whose name a Class A-2 Note is
+registered in the Note Register.
+
+“Class A-3 Final Scheduled Distribution Date” means December 16, 2024.
+
+“Class A-3 Interest Rate” means 1.38% per annum.
+
+“Class A-3 Note” means any of the 1.38% Asset Backed Notes, Class A-3, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-3 Noteholder” means the Person in whose name a Class A-3 Note is
+registered in the Note Register.
+
+“Class A-4 Final Scheduled Distribution Date” means May 17, 2027.
+
+“Class A-4 Interest Rate” means 1.70% per annum.
+
+“Class A-4 Note” means any of the 1.70% Asset Backed Notes, Class A-4, issued
+under the Indenture, substantially in the form of Exhibit A to the Indenture.
+
+“Class A-4 Noteholder” means the Person in whose name a Class A-4 Note is
+registered in the Note Register.
+
+“Clearing Agency” means an organization registered as a “clearing agency”
+pursuant to Section 17A of the Exchange Act.
+
+“Clearing Agency Participant” means a broker, dealer, bank, other financial
+institution or other Person for whom from time to time a Clearing Agency effects
+book-entry transfers and pledges of securities deposited with the Clearing
+Agency.
+
+“Closing Date” means April 29, 2020.
+
+ 
+
+   5    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Code” means the Internal Revenue Code of 1986, as amended.
+
+“Collateral” means the property of the Issuer subject to the Granting Clause of
+the Indenture.
+
+“Collection Account” means the account designated as such, established and
+maintained pursuant to Section 5.01.
+
+“Collection Period” means the period commencing on the first day of each
+calendar month and ending on the last day of such calendar month (or, in the
+case of the initial Collection Period, the period commencing on the close of
+business on the Cut-off Date and ending on April 30, 2020). As used herein, the
+“related” Collection Period with respect to a Distribution Date shall be deemed
+to be the Collection Period which precedes such Distribution Date.
+
+“Collections” means, for any Distribution Date, the sum of the following amounts
+received during the related Collection Period: (i) all collections on
+Receivables, (ii) without duplication of amounts described in clause (i), all
+Net Liquidation Proceeds, and (iii) the amount, if any, deposited into the
+Collection Account from the Reserve Account.
+
+“Commission” means the U.S. Securities and Exchange Commission.
+
+“Corporate Trust Office” means (a) with respect to the Owner Trustee, the
+principal corporate trust office of the Owner Trustee located at Rodney Square
+North, 1100 North Market Street, Wilmington, Delaware 19890; or at such other
+address as the Owner Trustee may designate by notice to the Certificateholders,
+or the principal corporate trust office of any successor Owner Trustee (the
+address of which the successor Owner Trustee will notify the Certificateholders)
+and (b) with respect to the Indenture Trustee, the office of the Indenture
+Trustee at which at any particular time its corporate trust business shall be
+administered, which office at the date of execution of this Agreement is located
+at: (i) for note transfer/surrender purposes, U.S. Bank National Association,
+111 Fillmore Avenue East, St. Paul, MN 55107, Attention: Bondholder Services,
+and (ii) for all other purposes, U.S. Bank National Association, 190 South
+LaSalle Street, 7th Floor, Chicago, IL 60603 (email: brian.kozack@usbank.com),
+Attention: NAROT 2020-A; or at such other address as the Indenture Trustee may
+designate from time to time by notice to the Noteholders, the Issuer and the
+Administrator, or the principal corporate trust office of any successor
+Indenture Trustee at the address designated by such successor Indenture Trustee
+by notice to the Noteholders, the Issuer and the Administrator.
+
+“Customary Servicing Practices” means the customary servicing practices of the
+Servicer with respect to all comparable motor vehicle receivables that the
+Servicer services for itself and others, as such practices may be changed from
+time to time by the Servicer in its sole discretion.
+
+“Cut-off Date” means the close of business on March 31, 2020.
+
+“Damages” shall have the meaning assigned to such term in Section 7.02.
+
+“Dealer” means the dealer who sold a Financed Vehicle and who originated and
+assigned the related Receivable to NMAC under an existing agreement between such
+dealer and NMAC.
+
+ 
+
+   6    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Dealer Recourse” means, with respect to a Receivable, all recourse rights
+against the Dealer which originated the Receivable, and any successor Dealer.
+
+“Default” means any occurrence that is, or with notice or the lapse of time or
+both would become, an Event of Default.
+
+“Defaulted Receivable” means (a) a Receivable (other than a Repurchased
+Receivable), which, by its terms, is delinquent for 120 or more days, (b) with
+respect to Receivables that are delinquent for less than 120 days, the Servicer
+has (i) determined, in accordance with its customary servicing practices, that
+eventual payment in full is unlikely or (ii) repossessed the Financed Vehicle,
+or (c) a Receivable with respect to which the Servicer has received notification
+that the related Obligor is subject to proceedings under Chapter 13 of the
+Bankruptcy Code.
+
+“Definitive Notes” shall have the meaning assigned to such term in Section 2.10
+of the Indenture.
+
+“Delinquency Percentage” means, for any Distribution Date and the related
+Collection Period, an amount equal to the ratio (expressed as a percentage) of
+(i) the aggregate Principal Balance of all 60-Day Delinquent Receivables as of
+the last day of such Collection Period to (ii) the Pool Balance as of the last
+day of such Collection Period.
+
+“Delinquency Trigger” means, for any Distribution Date and the related
+Collection Period, 4.90%.
+
+“Delivery” when used with respect to Account Property means:
+
+(a) with respect to (I) bankers’ acceptances, commercial paper, and negotiable
+certificates of deposit and other obligations that constitute “instruments” as
+defined in Section 9-102(a)(47) of the UCC and are susceptible of physical
+delivery, transfer of actual possession thereof to the Indenture Trustee or its
+nominee or custodian by physical delivery to the Indenture Trustee or its
+nominee or custodian endorsed to the Indenture Trustee or its nominee or
+custodian or endorsed in blank, and (II) with respect to a “certificated
+security” (as defined in Section 8-102(a)(4) of the UCC) transfer of actual
+possession thereof (i) by physical delivery of such certificated security to the
+Indenture Trustee or its nominee or custodian endorsed to, or registered in the
+name of, the Indenture Trustee or its nominee or custodian or endorsed in blank,
+or to another person, other than a “securities intermediary” (as defined in
+Section 8-102(a)(14) of the UCC), who acquires possession of the certificated
+security on behalf of the Indenture Trustee or its nominee or custodian or,
+having previously acquired possession of the certificate, acknowledges that it
+holds for the Indenture Trustee or its nominee or custodian or (ii) if such
+certificated security is in registered form, by delivery thereof to a
+“securities intermediary”, endorsed to or registered in the name of the
+Indenture Trustee or its nominee or custodian, and the making by such
+“securities intermediary” of entries on its books and records identifying such
+certificated securities as belonging to the Indenture Trustee or its nominee or
+custodian and the sending by such “securities intermediary” of a confirmation of
+the purchase of such certificated security by the Indenture Trustee or its
+nominee or custodian (all of the foregoing, “Physical Property”), and, in any
+event, any such Physical Property in registered form shall be in the name
+
+ 
+
+   7    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+of the Indenture Trustee or its nominee or custodian; and such additional or
+alternative procedures as may hereafter become appropriate to effect the
+complete transfer of ownership of any such Account Property to the Indenture
+Trustee or its nominee or custodian, consistent with changes in applicable law
+or regulations or the interpretation thereof;
+
+(b) with respect to any securities issued by the U.S. Treasury, the Federal Home
+Loan Mortgage Corporation, the Federal National Mortgage Association or the
+other government agencies, instrumentalities and establishments of the United
+States identified in Appendix A to Federal Reserve Bank Operating Circular No. 7
+as in effect from time to time that is a “book-entry security” (as such term is
+defined in Federal Reserve Bank Operating Circular No. 7) held in a securities
+account and eligible for transfer through the Fedwire® Securities Service
+operated by the Federal Reserve System pursuant to Federal book-entry
+regulations, the following procedures, all in accordance with applicable law,
+including applicable Federal regulations and Articles 8 and 9 of the UCC:
+book-entry registration of such Account Property to an appropriate securities
+account maintained with a Federal Reserve Bank by a “participant” (as such term
+is defined in Federal Reserve Bank Operating Circular No. 7) that is a
+“depository institution” (as defined in Section 19(b)(1)(A) of the Federal
+Reserve Act) pursuant to applicable Federal regulations, and issuance by such
+depository institution of a deposit notice or other written confirmation of such
+book-entry registration to the Indenture Trustee or its nominee or custodian of
+the purchase by the Indenture Trustee or its nominee or custodian of such
+book-entry securities; the making by such depository institution of entries in
+its books and records identifying such book entry security held through the
+Federal Reserve System pursuant to Federal book-entry regulations or a security
+entitlement thereto as belonging to the Indenture Trustee or its nominee or
+custodian and indicating that such depository institution holds such Account
+Property solely as agent for the Indenture Trustee or its nominee or custodian;
+and such additional or alternative procedures as may hereafter become
+appropriate to effect complete transfer of ownership of any such Account
+Property to the Indenture Trustee or its nominee or custodian, consistent with
+changes in applicable law or regulations or the interpretation thereof; and
+
+(c) with respect to any item of Account Property that is an “uncertificated
+security” (as defined in Section 8-102(a)(18) of the UCC) and that is not
+governed by clause (b) above, (i) registration on the books and records of the
+issuer thereof in the name of the Indenture Trustee or its nominee or custodian,
+or (ii) registration on the books and records of the issuer thereof in the name
+of another person, other than a securities intermediary, who acknowledges that
+it holds such uncertificated security for the benefit of the Indenture Trustee
+or its nominee or custodian.
+
+“Depositor” means NARC II in its capacity as depositor under the Trust
+Agreement.
+
+“Depositor’s Formation Documents” means the Amended and Restated Certificate of
+Incorporation of Nissan Auto Receivables Corporation II, dated as of January 10,
+2001 and the by-laws of NARC II, each as may be amended from time to time.
+
+“Designated Account” means (a) so long as the Administrator or one of its
+Affiliates is the sole Certificateholder, the account designated by such
+Certificateholder (which need not be under the control of the Paying Agent) and
+(b) at any time thereafter, the Certificate Distribution Account.
+
+ 
+
+   8    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Determination Date” means the tenth calendar day of each calendar month, or if
+such tenth day is not a Business Day, the next succeeding Business Day.
+
+“Distribution Date” means, for each Collection Period, the 15th calendar day of
+the following calendar month, or if the 15th day is not a Business Day, the next
+succeeding Business Day, commencing May 15, 2020.
+
+“Domestic Corporation” means an entity that is treated as a corporation for
+United States federal income tax purposes and is a United States person under
+Section 7701(a)(30) of the Code.
+
+“DTC” means The Depository Trust Company.
+
+“Eligible Account” means (a) an account maintained with a depository institution
+or trust company (which may be the Owner Trustee, the Indenture Trustee or any
+of their respective Affiliates) organized under the laws of the United States of
+America or any one of the states thereof or the District of Columbia (or any
+domestic branch of a foreign bank) that is subject to regulations substantially
+similar to 12 CFR §9.10(b) (i) which at all times has either (A) a long-term
+senior unsecured debt rating of at least “Aa2” by Moody’s and at least “BBB” by
+S&P, (B) a certificate of deposit rating of at least “P-1” by Moody’s and at
+least “A-2” by S&P or (C) such other rating that is acceptable to each Rating
+Agency, as evidenced by satisfaction of the Rating Agency Condition (each of
+(A), (B) or (C), the “Required Deposit Ratings”) and (ii) whose deposits are
+insured by the Federal Deposit Insurance Corporation; provided, that a foreign
+financial institution shall be deemed to satisfy clause (ii) if such foreign
+financial institution meets the requirements of Rule 13k-1(b)(1) under the
+Exchange Act (17 CFR §240.13k-1(b)(1)) or (b) a segregated trust account in the
+trust department of the Indenture Trustee or the Owner Trustee, as the case may
+be.
+
+“Eligible Investments” means, at any time, any one or more of the following
+obligations, instruments or securities:
+
+(i) obligations of, and obligations fully guaranteed as to timely payment of
+principal and interest by, the United States or any agency thereof, provided
+such obligations are backed by the full faith and credit of the United States;
+
+(ii) general obligations of or obligations guaranteed by the Federal National
+Mortgage Association or any State; provided that such obligations have the
+highest available credit rating from each Rating Agency for such obligations;
+
+(iii) securities bearing interest or sold at a discount issued by any
+corporation incorporated under the laws of the United States or of any State;
+provided, that at the time of such investment or contractual commitment
+providing for such investment, either (a) the long-term unsecured debt of such
+corporation has the highest available rating from each Rating Agency for such
+obligations or (b) the commercial paper or other short-term debt of such
+corporation that is then rated has the highest available credit rating of each
+Rating Agency for such obligations;
+
+ 
+
+   9    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(iv) certificates of deposit, demand deposits, time deposits or bankers’
+acceptances issued by any depository institution or trust company incorporated
+under the laws of the United States or any State and subject to supervision and
+examination by banking authorities of one or more of such jurisdictions;
+provided, however, that at the time of the investment or contractual commitment
+to invest therein, the commercial paper or other short-term unsecured debt
+obligations (other than such obligations the rating of which is based on the
+credit of a Person other than such depository institution or trust company)
+thereof shall have a credit rating from each of the Rating Agencies in the
+highest investment category granted thereby (including applicable plus signs);
+
+(v) certificates of deposit that are issued by any bank, trust company, savings
+bank or other savings institution and insured up to the maximum amount insurable
+by the FDIC;
+
+(vi) investments in money market funds having a rating from each of the Rating
+Agencies in the highest investment category granted thereby (including funds for
+which the Owner Trustee, the Indenture Trustee or any of their respective
+Affiliates is investment manager or advisor);
+
+(vii) repurchase obligations held by the Owner Trustee or Indenture Trustee with
+respect to any obligation or security described in clauses (i), (ii) or
+(viii) hereof or any other obligation or security issued or guaranteed by any
+other agency or instrumentality of the United States, in either case entered
+into with a federal agency or a depository institution or trust company (acting
+as principal) described in clause (iv) above; and
+
+(viii) any other investment with respect to which the acquisition of such
+investment as an Eligible Investment will satisfy the Rating Agency Condition;
+
+provided, that each of the foregoing obligations, instruments and securities
+shall mature no later than the Business Day prior to the date on which such
+funds are required to be available for application pursuant to any related Basic
+Document (other than in the case of the investment of monies in obligations,
+instruments or securities of which the entity at which the related account is
+located is the obligor, which may mature on such date), and shall be required to
+be held to such maturity.
+
+For purposes of this definition, any reference to the highest available credit
+rating of an obligation shall mean the highest available credit rating for such
+obligation (excluding any “+” signs associated with such rating) or such lower
+credit rating (as approved in writing by each Rating Agency) as will not result
+in the qualification, downgrading or withdrawal of the rating then assigned by
+such Rating Agency to any of the Notes.
+
+“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
+
+“Event of Default” shall have the meaning assigned to such term in Section 5.01
+of the Indenture.
+
+ 
+
+   10    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Exchange Act” means the Securities Exchange Act of 1934.
+
+“Executive Officer” means, with respect to any corporation or depositary
+institution, the Chief Executive Officer, Chief Operating Officer, Chief
+Financial Officer, President, Executive Vice President, any Vice President, the
+Secretary or the Treasurer of such corporation or depositary institution; and
+with respect to any partnership, any general partner thereof.
+
+“Expenses” shall have the meaning assigned to such term in Section 8.01 of the
+Trust Agreement.
+
+“FATCA” means Sections 1471 through 1474 of the Code, as of the date hereof (or
+any amended or successor provisions that are substantially similar), any current
+or future regulations or official interpretations thereunder or official
+interpretations thereof and any agreements entered into pursuant to
+Section 1471(b)(1) of the Code, any published intergovernmental agreement
+entered into in connection with the implementation the foregoing and any fiscal
+or regulatory legislation, rules or official practices adopted pursuant to such
+published intergovernmental agreement.
+
+“FATCA Withholding Tax” means any withholding or deduction required pursuant to
+FATCA.
+
+“Final Scheduled Distribution Date” means, the Class A-1 Final Scheduled
+Distribution Date, the Class A-2 Final Scheduled Distribution Date, the
+Class A-3 Final Scheduled Distribution Date and the Class A-4 Final Scheduled
+Distribution Date, as applicable.
+
+“Financed Vehicle” means a new, near-new or used automobile or light-duty truck,
+together with all accessions thereto, securing an Obligor’s indebtedness under
+the related Receivable.
+
+“Grant” means mortgage, pledge, bargain, sell, warrant, alienate, remise,
+release, convey, assign, transfer, create, and grant a lien upon and a security
+interest in and right of set-off against, deposit, set over and confirm pursuant
+to the Indenture. A Grant of the Collateral or of any other agreement or
+instrument shall include all rights, powers and options (but none of the
+obligations) of the granting party thereunder, including the immediate and
+continuing right to claim for, collect, receive and give receipt for principal
+and interest payments in respect of the Collateral and all other moneys payable
+thereunder, to give and receive notices and other communications, to make
+waivers or other agreements, to exercise all rights and options, to bring
+Proceedings in the name of the granting party or otherwise, and generally to do
+and receive anything that the granting party is or may be entitled to do or
+receive thereunder or with respect thereto.
+
+“Hague Securities Convention” means the Hague Convention on the Law Applicable
+to Certain Rights in Respect of Securities Held with an Intermediary (concluded
+July 5, 2006).
+
+“Holder” or “Securityholder” means the registered holder of any Certificate or
+Note as evidenced by the Certificate Register or Note Register.
+
+ 
+
+   11    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Indenture” means the Indenture dated as of the Closing Date, between the Issuer
+and U.S. Bank National Association, as Indenture Trustee.
+
+“Indenture Trustee” means the Person acting as Indenture Trustee under the
+Indenture, its successors in interest and any successor trustee under the
+Indenture.
+
+“Independent” means, when used with respect to any specified Person, that the
+Person is in fact independent of the Seller, the Servicer, the Administrator,
+the Issuer or any other obligor on the Notes or any Affiliate of any of the
+foregoing Persons because, among other things, such Person (a) is not an
+employee, officer or director or otherwise controlled thereby or under common
+control therewith, (b) does not have any direct financial interest or any
+material indirect financial interest therein (whether as holder of securities
+thereof or party to contract therewith or otherwise), and (c) is not and has not
+within the preceding twelve months been a promoter, underwriter, trustee,
+partner, director or person performing similar functions therefor or otherwise
+had legal, contractual or fiduciary or other duties to act on behalf of or for
+the benefit thereof.
+
+“Independent Certificate” means a certificate or opinion to be delivered to the
+Indenture Trustee, made by an Independent appraiser or other expert appointed by
+an Issuer Order and approved by the Indenture Trustee in the exercise of
+reasonable care, and such opinion or certificate shall state that the signer has
+read the definition of “Independent” and that the signer is Independent within
+the meaning thereof.
+
+“Insolvency Event” means, with respect to a specified Person, (a) the entry of a
+decree or order for relief by a court having jurisdiction in the premises in
+respect of such Person or all or substantially all of its property in an
+involuntary case under any applicable federal or state bankruptcy, insolvency or
+other similar law now or hereafter in effect, or appointing a receiver,
+liquidator, assignee, custodian, trustee, sequestrator or similar official for
+such Person or for all or substantially all of its property, or ordering the
+winding-up or liquidation of such Person’s affairs, and such decree or order
+shall remain unstayed and in effect for more than 90 consecutive days; or
+(b) the commencement by such Person of a voluntary case under any applicable
+federal or state bankruptcy, insolvency or other similar law now or hereafter in
+effect, or the consent by such Person to the entry of an order for relief in an
+involuntary case under any such law, or the consent by such Person to the
+appointment of or taking possession by a receiver, liquidator, assignee,
+custodian, trustee, sequestrator or similar official for such Person or for all
+or substantially all of its property, or the making by such Person of any
+general assignment for the benefit of creditors.
+
+“Instituting Noteholders” has the meaning set forth in Section 7.08(a) of the
+Indenture.
+
+“Interest Period” means, with respect to any Distribution Date and the Class A-1
+Notes, the period from (and including) the preceding Distribution Date or (in
+the case of the first Distribution Date) the Closing Date to (but excluding)
+such Distribution Date, and, with respect to any Distribution Date and the
+Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the period from
+(and including) the 15th day of the preceding calendar month or (in the case of
+the first Distribution Date) the Closing Date to (but excluding) the 15th day of
+the month in which such Distribution Date occurs.
+
+ 
+
+   12    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Interest Rate” means the Class A-1 Interest Rate, the Class A-2 Interest Rate,
+the Class A-3 Interest Rate or the Class A-4 Interest Rate, as the case may be.
+
+“Investor” means (a) with respect to any Book-Entry Note, each related Note
+Owner and (b) with respect to any Definitive Note, each related Noteholder.
+
+“Issuer” means Nissan Auto Receivables 2020-A Owner Trust unless and until a
+successor replaces it and, thereafter, means the successor and, for purposes of
+any provision contained herein and required by the TIA, each other obligor on
+the Notes.
+
+“Issuer Order” and “Issuer Request” mean a written order or request signed in
+the name of the Issuer by any one of its Authorized Officers and delivered to
+the Indenture Trustee.
+
+“Lien” means any security interest, lien, charge, pledge, equity or encumbrance
+of any kind, other than Permitted Liens.
+
+“Liquidated Receivable” means a Defaulted Receivable as to which the related
+Financed Vehicle has been liquidated by the Servicer.
+
+“Monthly Remittance Condition” shall have the meaning assigned to such term in
+Section 5.02.
+
+“Moody’s” means Moody’s Investors Service, Inc.
+
+“NARC II” means Nissan Auto Receivables Corporation II, a Delaware corporation.
+
+“Net Liquidation Proceeds” means the monies collected from whatever source on a
+Liquidated Receivable, net of the sum of any amounts expended by the Servicer
+for the account of the Obligor, plus any amounts required by law to be remitted
+to the Obligor.
+
+“Nissan” means Nissan Motor Co., Ltd.
+
+“NMAC” means Nissan Motor Acceptance Corporation, a California corporation.
+
+“Non-U.S. Person” means any Person who is not (i) a citizen or resident of the
+United States who is a natural person, (ii) a corporation or partnership (or an
+entity treated as a corporation or partnership) created or organized in or under
+the laws of the United States or any state thereof, including the District of
+Columbia (unless, in the case of a partnership, Treasury Regulations are adopted
+that provide otherwise), (iii) an estate, the income of which is subject to
+United States Federal income taxation, regardless of its source, (iv) a trust,
+if a court within the United States is able to exercise primary supervision over
+the administration of the trust and one or more United States persons (as
+defined in the Code and Treasury Regulations) have the authority to control all
+substantial decisions of the trust; or (v) a trust that was in existence prior
+to August 20, 1996 and that, under Treasury Regulations, is eligible to elect,
+and does validly elect, to be treated as a United States person (as defined in
+the Code and Treasury Regulations) despite not meeting the requirements of
+clause (iv).
+
+ 
+
+   13    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Note” means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or a Class A-4
+Note, as the context may require.
+
+“Note Depository Agreement” means the agreement entitled “Letter of
+Representations” dated on or before the Closing Date executed by the Issuer in
+favor of the Clearing Agency with respect to certain matters relating to the
+duties thereof with respect to the Book-Entry Notes.
+
+“Note Factor” means, with respect to any Class of Notes and any Distribution
+Date, a seven-digit decimal figure obtained by dividing the Outstanding Amount
+of such Class of Notes, as of the close of business on the last day of the
+related Collection Period, by the initial Outstanding Amount of that Class of
+Notes.
+
+“Note Owner” means, with respect to a Book-Entry Note, any Person who is the
+beneficial owner of such Book-Entry Note, as reflected on the books of the
+Clearing Agency or on the books of a Person maintaining an account with such
+Clearing Agency (directly as a Clearing Agency Participant or as an indirect
+participant, in each case in accordance with the rules of such Clearing Agency).
+
+“Note Pool Factor” means, with respect to any Class of Notes and any
+Distribution Date, a seven-digit decimal figure obtained by dividing the
+Outstanding Amount of such Class of Notes as of the close of business on the
+last day of the related Collection Period by the Original Pool Balance.
+
+“Note Register” means the Register of Noteholders’ information maintained by the
+Note Registrar pursuant to Section 2.04 of the Indenture.
+
+“Note Registrar” means the Indenture Trustee unless and until a successor Note
+Registrar shall have been appointed pursuant to Section 2.04 of the Indenture.
+
+“Noteholder” shall mean any of the Class A-1 Noteholders, the Class A-2
+Noteholders, the Class A-3 Noteholders or the Class A-4 Noteholders.
+
+“Noteholder Direction” has the meaning set forth in Section 7.08(a) of the
+Indenture.
+
+“Noteholders’ Interest Carryover Shortfall” means, with respect to any
+Distribution Date and a Class of Notes, the excess, if any, of the sum of the
+Noteholders’ Monthly Interest Distributable Amount for such Class for the
+preceding Distribution Date plus any outstanding Noteholders’ Interest Carryover
+Shortfall for such Class on such preceding Distribution Date, over the amount in
+respect of interest that is actually paid on the Notes of such Class on such
+preceding Distribution Date, plus, to the extent permitted by applicable law,
+interest on the Noteholders’ Interest Carryover Shortfall at the related
+Interest Rate for the related Interest Period (calculated on the same basis as
+interest on that Class of Notes for the same period).
+
+“Noteholders’ Interest Distributable Amount” means, with respect to any
+Distribution Date and a Class of Notes, the sum of the Noteholders’ Monthly
+Interest Distributable Amount for such Class and Distribution Date plus any
+outstanding Noteholders’ Interest Carryover Shortfall for such Class and
+Distribution Date.
+
+ 
+
+   14    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Noteholders’ Monthly Interest Distributable Amount” means, with respect to any
+Distribution Date and a Class of Notes, interest accrued for the related
+Interest Period (calculated on the basis of, in the case of the Class A-1 Notes,
+the actual number of days in such Interest Period and a year assumed to consist
+of 360 days, and in the case of the Class A-2 Notes, the Class A-3 Notes and the
+Class A-4 Notes, such Interest Period being assumed to consist of 30 days and a
+year assumed to consist of 360 days) at the related Interest Rate for such
+Class of Notes on the Outstanding Amount of the Notes of such Class on the
+immediately preceding Distribution Date, after giving effect to all payments of
+principal to Noteholders of such Class on or prior to such Distribution Date
+(or, in the case of the first Distribution Date, on the original principal
+amount of such Class of Notes).
+
+“Noteholders’ Principal Carryover Shortfall” means, with respect to any
+Distribution Date, the excess, if any, of the Noteholders’ Principal
+Distributable Amount for the preceding Distribution Date over the amount in
+respect of principal that is actually paid as principal on the Notes on such
+previous Distribution Date. Noteholders’ Principal Carryover Shortfall is not
+used to determine the amount of principal due on the Notes on any Distribution
+Date, but is used solely for reporting purposes.
+
+“Noteholders’ Principal Distributable Amount” means, with respect to any
+Distribution Date, an amount equal to the Principal Distribution Amount for such
+Distribution Date until the outstanding principal amount of each Class of Notes
+has been reduced to zero, and for any Distribution Date thereafter, an amount
+equal to zero.
+
+“Notes” means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and
+the Class A-4 Notes.
+
+“Obligor” on a Receivable means the purchaser or co-purchasers of the Financed
+Vehicle or any other Person who owes payments under the Receivable (but
+excluding any Dealer in respect of Dealer Recourse).
+
+“Officer’s Certificate” means a certificate signed by any Authorized Officer of
+the Issuer, the Seller or the Servicer, as applicable.
+
+“Opinion of Counsel” means one or more written opinions of counsel who may,
+except as otherwise provided herein, be an employee of or counsel to the Issuer,
+the Seller or the Servicer, which counsel shall be reasonably acceptable to the
+recipient of such opinion.
+
+“Optional Purchase” shall have the meaning assigned to such term in
+Section 9.01(a)
+
+“Optional Purchase Percentage” means 5.00%.
+
+“Optional Purchase Price” means, an amount equal to the greater of (a) the
+aggregate Repurchase Payments for the Receivables (including Receivables that
+became Defaulted Receivables in the Collection Period preceding the Distribution
+Date on which a purchase pursuant to Section 9.01 is effected) and (b) the sum
+of (i) the Outstanding Amount of all Classes of Notes, (ii) the Noteholders’
+Interest Distributable Amount for all Classes of Notes for such Distribution
+Date and (iii) any amounts due pursuant to Sections 5.06(a)(v) and (vi).
+
+ 
+
+   15    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Original Certificate Balance” means $47,137,850.19.
+
+“Original Pool Balance” means the aggregate Principal Balance of the Receivables
+on the Cut-off Date.
+
+“Original Principal Amount” means $162,000,000 for the Class A-1 Notes,
+$352,000,000 for the Class A-2 Notes, $401,000,000 for the Class A-3 Notes and
+$85,000,000 for the Class A-4 Notes.
+
+“Other Assets” means any assets (or interests therein) (other than the Owner
+Trust Estate) conveyed or purported to be conveyed by the Seller to another
+Person or Persons other than the Issuer, whether by way of a sale, capital
+contribution or by virtue of the granting of a lien.
+
+“Outstanding” means, as of the date of determination, all Notes theretofore
+authenticated and delivered under the Indenture except:
+
+(a) Notes theretofore canceled by the Note Registrar or delivered to the Note
+Registrar for cancellation;
+
+(b) Notes or portions thereof the payment for which money in the necessary
+amount has been theretofore deposited with the Indenture Trustee or any Paying
+Agent in trust for the Holders of such Notes; and
+
+(c) Notes in exchange for or in lieu of which other Notes have been
+authenticated and delivered pursuant to the Indenture unless proof satisfactory
+to the Indenture Trustee is presented that any such Notes are held by a
+protected purchaser;
+
+provided, that in determining whether the Holders of the requisite percentage of
+the Outstanding Amount of the Notes, or any Class of Notes, have given any
+request, demand, authorization, direction, notice, consent, or waiver hereunder
+or under any Basic Document, Notes owned by the Issuer, NARC II, NMAC, a
+Certificateholder or any Affiliate of any of the foregoing Persons shall be
+disregarded and deemed not to be Outstanding, unless all Notes are owned by the
+Issuer, NARC II, NMAC, a Certificateholder or any of their respective
+Affiliates; provided, further, that, in determining whether the Indenture
+Trustee shall be protected in relying upon any such request, demand,
+authorization, direction, notice, consent, or waiver, only Notes that the
+Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned
+that have been pledged in good faith may be regarded as Outstanding if the
+pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s
+right so to act with respect to such Notes and that the pledgee is not the
+Issuer, NARC II, NMAC, a Certificateholder or any Affiliate of any of the
+foregoing Persons.
+
+“Outstanding Amount” means the aggregate principal amount of all Notes, or, if
+indicated by the context, all Notes of any Class, Outstanding at the date of
+determination.
+
+“Owner Trust Estate” means all right, title and interest of the Issuer in and to
+the Receivables (other than Repurchased Receivables), and all monies paid
+thereon, and all monies accrued thereon, after the Cut-off Date; security
+interests in the Financed Vehicles and any accessions thereto; the Accounts and
+all funds deposited in the Accounts; all property (including
+
+ 
+
+   16    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+the right to receive Net Liquidation Proceeds) that shall have secured a
+Receivable and that shall have been acquired by or on behalf of the Issuer;
+proceeds from claims on any physical damage, credit life or disability insurance
+policies covering the Financed Vehicles or the Obligors; all right to receive
+payments in respect of any Dealer Recourse with respect to the Receivables; all
+right, title and interest of the Seller in and to the Purchase Agreement and the
+Assignment; all right, title and interest of the Issuer pursuant to this
+Agreement, the Administration Agreement; certain rebates of premiums and other
+amounts relating to certain insurance policies and other items financed under
+the Receivables in effect as of the Cut-off Date; and the proceeds of any and
+all of the foregoing.
+
+“Owner Trustee” means Wilmington Trust, National Association, not in its
+individual capacity but solely as Owner Trustee under the Trust Agreement, or
+any successor Owner Trustee under the Trust Agreement.
+
+“Paying Agent” means, (i) under the Indenture, U.S. Bank National Association,
+as Indenture Trustee, or any other Person that meets the eligibility standards
+for the Indenture Trustee set forth in Section 6.11 of the Indenture and is
+authorized by the Issuer to make the payments to and distributions from the
+Collection Account, including the payment of principal of or interest on the
+Notes on behalf of the Issuer, and (ii) under the Trust Agreement, any paying
+agent or co-paying agent appointed pursuant to Section 3.08 of the Trust
+Agreement that is authorized to make distributions from the Certificate
+Distribution Account, and shall initially be U.S. Bank National Association.
+
+“Permitted Liens” means (a) any liens created by the Basic Documents; (b) any
+liens for taxes not yet due and payable or the amount of which is being
+contested in good faith by appropriate proceedings; and (c) any liens of
+mechanics, suppliers, vendors, materialmen, laborers, employees, repairmen and
+other like liens securing obligations which are not due and payable or the
+amount or validity of which is being contested in good faith by appropriate
+proceedings.
+
+“Person” means any individual, corporation, estate, partnership, joint venture,
+association, joint stock company, limited liability company, trust,
+unincorporated organization or government or any agency or political subdivision
+thereof.
+
+“Physical Property” shall have the meaning assigned to such term in the
+definition of “Delivery.”
+
+“Pool Balance” as of the close of business on the last day of a Collection
+Period means the aggregate Principal Balance of the Receivables (reduced by the
+principal balance of any Repurchased Receivables and Defaulted Receivables) as
+of the close of business on such day.
+
+“Pool Factor” for a particular Class of Notes or Certificates on any
+Distribution Date means a seven-digit decimal figure indicating the principal
+amount of such Class of Notes or the Certificate Balance, as the case may be, as
+of the close of business on the last day of the related Collection Period as a
+fraction of the Original Pool Balance.
+
+ 
+
+   17    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Predecessor Note” means, with respect to any particular Note, every previous
+Note evidencing all or a portion of the same debt as that evidenced by such
+particular Note; and, for the purpose of this definition, any Note authenticated
+and delivered under Section 2.05 of the Indenture in lieu of a mutilated, lost,
+destroyed or stolen Note shall be deemed to evidence the same debt as the
+mutilated, lost, destroyed or stolen Note.
+
+“Prepayment” means, with respect to any Receivable, any prepayment, whether in
+part or in full, in respect of such Receivable.
+
+“Principal Balance” of a Receivable, as of any date of determination, means the
+outstanding principal balance of such Receivable calculated in accordance with
+the Customary Servicing Practices.
+
+“Principal Distribution Amount” means, with respect to any Distribution Date, an
+amount equal to (i) the excess, if any, of (x) the Adjusted Pool Balance as of
+the beginning of the related Collection Period, or in the case of the first
+Collection Period, as of the Cut-off Date, over (y) the Adjusted Pool Balance as
+of the end of the related Collection Period and (ii) any Noteholders’ Principal
+Distributable Amount not paid to the Noteholders on a prior Distribution Date
+because Available Amounts on such Distribution Date were not sufficient to make
+such payments; provided, however, that the Principal Distribution Amount on the
+Final Scheduled Distribution Date for any Class of Notes shall not be less than
+the amount necessary to reduce the outstanding principal amount of such Class to
+zero.
+
+“Proceeding” means any suit in equity, action at law or other judicial or
+administrative proceeding.
+
+“Purchase Agreement” means that certain agreement, dated as of the Closing Date,
+between NMAC and the Seller, relating to the purchase by the Seller from NMAC of
+the Receivables.
+
+“Purchased Assets” shall have the meaning assigned to such term in Section 2.1
+of the Purchase Agreement.
+
+“Rating Agency” means as of any date, any of the nationally recognized
+statistical rating organizations that has been requested by the Seller or one of
+its Affiliates to rate any Class of Notes and that is rating such Class of Notes
+on such date.
+
+“Rating Agency Condition” means, with respect to any event or action and each
+Rating Agency, either (a) written confirmation (which may be in the form of a
+letter, a press release or other publication, or a change in such Rating
+Agency’s published ratings criteria to this effect) by such Rating Agency that
+the occurrence of such event or action will not cause it to downgrade, qualify
+or withdraw its rating assigned to the Notes or (b) that such Rating Agency
+shall have been given notice of such event or action at least ten (10) days
+prior to such event or action (or, if ten (10) days’ advance notice is
+impracticable, as much advance notice as is practicable) and such Rating Agency
+shall not have issued any written notice that the occurrence of such event or
+action will cause it to downgrade, qualify or withdraw its rating assigned to
+the Notes. Notwithstanding the foregoing, no Rating Agency has any duty to
+review any notice given with respect to any event or action.
+
+ 
+
+   18    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Receivable” means any retail installment sale contract that appears on the
+Schedule of Receivables and that has not been released by the Issuer.
+
+“Receivable File” means the records (whether tangible or electronic) specified
+in Section 2.02 pertaining to a particular Receivable.
+
+“Record Date” means, with respect to the Notes of any Class and each
+Distribution Date, the Business Day immediately preceding such Distribution
+Date, and, with respect to the Certificates or if Definitive Notes, representing
+any Class of Notes, have been issued, the last day of the Collection Period
+preceding the related Distribution Date.
+
+“Redemption Date” shall have the meaning assigned to such term in
+Section 9.01(a).
+
+“Redemption Price” means an amount equal to the sum of (a) the Outstanding
+Amount of all Notes redeemed, plus (b) accrued and unpaid interest thereon at
+the Noteholders’ Interest Distributable Amount for the Notes being so redeemed,
+up to but excluding the Redemption Date.
+
+“Registered Holder” means the Person in whose name a Note is registered on the
+Note Register on the applicable Record Date.
+
+“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation
+AB), 17 C.F.R. §§229.1100-229.1125, as such regulation may be amended from time
+to time, subject to such clarification and interpretation as have been provided
+by the Commission in the adopting release (Asset-Backed Securities, Securities
+Act Release No. 33-8518. 70 Fed. Reg. 1,506, 1,531 (January 7, 2005);
+Asset-Backed Securities Disclosure and Registration, Securities Act Release
+No. 33-9638. 79 Fed. Reg. 57184 (September 24, 2014)) or by the staff of the
+Commission, or as may be provided in writing by the Commission or its staff from
+time to time.
+
+“Relevant Trustee” means (i) with respect to the control over or appropriate
+designation denoting ownership or control over any property comprising a portion
+of the Owner Trust Estate that either is not conveyed or pledged to the
+Indenture Trustee for the benefit of the Noteholders pursuant to the Granting
+Clause of the Indenture or that has been released from the lien of the
+Indenture, the Owner Trustee, and (ii) with respect to any property comprising a
+portion of the Collateral that has not been released from the lien of the
+Indenture, the Indenture Trustee; provided, however, that with respect to any
+property that is under the joint or separate control of a co-trustee or separate
+trustee under the Trust Agreement or the Indenture, respectively, “Relevant
+Trustee” shall refer to either or both of the Owner Trustee and such co-trustee
+or separate trustee or to either or both of the Indenture Trustee and such
+co-trustee or separate trustee, as the case may be.
+
+“Repurchase Payment” for any Repurchased Receivable as of the last day of any
+Collection Period, means the sum of the Principal Balance thereof as of the
+beginning of such Collection Period plus interest accrued thereon through the
+due date for the Obligor’s payment in such Collection Period at the related APR,
+after giving effect to the receipt of monies collected on such Repurchased
+Receivable, if any, during such Collection Period.
+
+ 
+
+   19    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Repurchased Receivable” means a Receivable purchased as of the close of
+business on the last day of a Collection Period by the Servicer pursuant to
+Section 4.06 by the Seller pursuant to Section 3.02 or by NMAC pursuant to
+Section 4.3 of the Purchase Agreement.
+
+“Required Deposit Rating” shall have the meaning assigned to such term in the
+definition of “Eligible Account.”
+
+“Required Rate” means, with respect to any Distribution Date, 6.10%.
+
+“Reserve Account” means the account designated as such, established and
+maintained pursuant to Section 5.01 and Section 5.07.
+
+“Reserve Account Initial Deposit” means $10,471,378.50.
+
+“Retained Notes” if any, means any Notes beneficially owned by the Issuer or an
+entity which, for U.S. federal income tax purposes, is treated as the same
+Person as the Issuer, until such time as such Notes are the subject of an
+opinion pursuant to Section 2.04(g) of the Indenture.
+
+“Review Notice” means the notice delivered by the Indenture Trustee in
+accordance with Section 7.08(b) of the Indenture to NMAC, the Seller, the Asset
+Representations Reviewer and the Servicer.
+
+“Review Report” shall have the meaning assigned to such term in Section 3.5 of
+the Asset Representations Review Agreement.
+
+“Review Satisfaction Date” means, with respect to any Asset Review, the first
+date on which (a) the Delinquency Percentage for any Payment Date exceeds the
+Delinquency Trigger and (b) a Noteholder Direction with respect to such Asset
+Review has occurred.
+
+“Schedule of Receivables” means the schedule of receivables on file with the
+Indenture Trustee, as it may be amended from time to time.
+
+“Section 385 Controlled Partnership” shall have the meaning set forth in
+Treasury Regulation Section 1.385-1(c)(1) for a “controlled partnership”.
+
+“Section 385 Expanded Group” shall have the meaning set forth in Treasury
+Regulation Section 1.385-1(c)(4) for an “expanded group”.
+
+“Secretary of State” means the Secretary of State of the State of Delaware.
+
+“Securities Act” means the Securities Act of 1933.
+
+“Securityholders” shall have the meaning assigned to such term in this
+Section 1.01 under the definition of “Holder.”
+
+“Seller” means NARC II, as the seller of the Receivables under this Agreement,
+and each successor to NARC II (in the same capacity) pursuant to Section 6.04.
+
+ 
+
+   20    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“Servicer” means NMAC, as the servicer of the Receivables, and each successor to
+NMAC (in the same capacity) pursuant to Section 7.03 or 8.02.
+
+“Servicer Default” means an event specified in Section 8.01.
+
+“Servicer’s Certificate” means a certificate completed and executed on behalf of
+the Servicer by the president, any executive vice president, any vice president,
+the treasurer, any assistant treasurer, the controller or any assistant
+controller of the Servicer pursuant to Section 4.08.
+
+“Servicing Criteria” shall mean the “servicing criteria” set forth in
+Item 1122(d) of Regulation AB.
+
+“Servicing Rate” means 1.00% per annum.
+
+“Similar Law” means a law that is similar to the fiduciary responsibility or
+prohibited transaction provisions of ERISA or Section 4975 of the Code.
+
+“Simple Interest Method” means the method of allocating a fixed level payment to
+principal and interest pursuant to which the portion of such payment that is
+allocated to interest is equal to the product of the fixed rate of interest
+multiplied by the unpaid principal balance multiplied by the quotient obtained
+by calculating the period of time elapsed since the preceding payment of
+interest was made and dividing such period of time by 365 or 366, as
+appropriate.
+
+“Simple Interest Receivable” means any Receivable under which the portion of a
+payment allocable to interest and the portion allocable to principal is
+determined in accordance with the Simple Interest Method.
+
+“Specified Reserve Account Balance” means with respect to any Distribution Date,
+an amount equal to not less than 1.00% of the Adjusted Pool Balance as of the
+Cut-off Date provided, that on any Distribution Date after the Notes are no
+longer Outstanding following payment in full of the principal of and interest on
+the Notes, the “Specified Reserve Account Balance” shall be $0.
+
+“Sponsor” means NMAC.
+
+“Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
+Code § 3801 et seq.
+
+“Subject Receivables” means, for any Asset Review, all Receivables which are
+60-Day Delinquent Receivables as of the end of the Collection Period immediately
+preceding the related Review Satisfaction Date.
+
+“Successor Servicer” means any entity appointed as a successor to the Servicer
+pursuant to Section 8.02.
+
+“Supplemental Servicing Fee” means, with respect to any Distribution Date, all
+late fees, prepayment charges and other administrative fees and expenses or
+similar charges allowed by applicable law received by the Servicer with respect
+to the Receivables during the related Collection Period.
+
+ 
+
+   21    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+“S&P” means S&P Global Ratings.
+
+“Tax Information” means information and/or properly completed and signed tax
+certifications sufficient to eliminate the imposition of or to determine the
+amount of any withholding of tax, including FATCA Withholding Tax.
+
+“Test Fail” shall have the meaning assigned to such term in the Asset
+Representations Review Agreement.
+
+“Transferred Assets” shall have the meaning assigned to such term in
+Section 2.01.
+
+“Treasury Regulations” means regulations, including proposed or temporary
+regulations, promulgated under the Code. References herein to specific
+provisions of proposed or temporary regulations shall include analogous
+provisions of final Treasury Regulations or other successor Treasury
+Regulations.
+
+“Trust Agreement” means the Trust Agreement, dated as of April 2, 2020, as
+amended by the Amended and Restated Trust Agreement, dated as of the Closing
+Date, between the Seller, Wilmington Trust, National Association, as Owner
+Trustee, and U.S. Bank National Association, as Certificate Registrar and Paying
+Agent.
+
+“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force
+on the date hereof, unless otherwise specifically provided.
+
+“UCC” means the Uniform Commercial Code as in effect in the relevant
+jurisdiction.
+
+“Verification Documents” means, with respect to any Note Owner, a certification
+from such Note Owner certifying that such Person is in fact, a Note Owner, as
+well as an additional piece of documentation reasonably satisfactory to the
+recipient, such as a trade confirmation, account statement, letter from a broker
+or dealer or other similar document.
+
+“YSOC Amount” means, (i) as of the Closing Date, $72,495,090.62, and
+(ii) thereafter, with respect to any Collection Period and the related
+Distribution Date, the aggregate amount by which the Principal Balance as of the
+last day of such Collection Period of each Receivable (other than a Receivable
+that is a non-collectible Receivable, a Defaulted Receivable or a Repurchased
+Receivable), exceeds the present value of each scheduled payment of each such
+Receivable assuming the discount rate of such Receivable is the greater of the
+Required Rate or the Receivable’s contract rate and that such scheduled payments
+(assumed to be equal monthly payments that amortize the Principal Balance of the
+Receivable to zero, using its contract rate, over the remaining term of the
+contract) are made on the last day of each month and each month has 30 days.
+
+ 
+
+   22    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 1.02 Usage of Terms. With respect to all terms in this Agreement, the
+singular includes the plural and the plural the singular; words importing any
+gender include the other genders; references to “writing” include printing,
+typing, lithography and other means of reproducing words in a visible form;
+references to agreements and other contractual instruments include all
+subsequent amendments, amendments and restatements and supplements thereto or
+changes therein entered into in accordance with their respective terms and not
+prohibited by this Agreement; references to Persons include their permitted
+successors and assigns; references to laws include their amendments and
+supplements, the rules and regulations thereunder and any successors thereto;
+the term “including” means “including without limitation;” and the term “or” is
+not exclusive.
+
+ARTICLE II.
+
+Conveyance of Receivables
+
+SECTION 2.01 Conveyance of Receivables.
+
+(a) In consideration of the promises and the agreements, provisions and
+covenants herein contained and other good and valuable consideration to be
+delivered to the Seller hereunder, the Seller does hereby sell, transfer, assign
+and otherwise convey to the Issuer, without recourse (but subject to the
+Seller’s obligations in this Agreement) (collectively, the “Transferred
+Assets”):
+
+(i) all right, title and interest of the Seller in and to the Purchased Assets;
+
+(ii) the rights of the Seller under the Purchase Agreement and the Assignment;
+
+(iii) all other assets comprising the Owner Trust Estate; and
+
+(iv) all proceeds of the foregoing.
+
+On the Closing Date, the Seller shall deliver to, or to the order of, the Issuer
+the Transferred Assets and in consideration therefor, the Issuer shall deliver
+to, or to the order of, the Seller, the Notes and the Certificates.
+Notwithstanding the foregoing, monies received in respect of the Receivables
+after the Cut-off Date and before the Closing Date shall be deposited by NMAC
+(in its individual capacity or as the Servicer) into the Collection Account no
+later than the Business Day preceding the first Distribution Date.
+
+(b) Notwithstanding the foregoing, in the event that the Receivables and other
+Transferred Assets are held to be property of the Seller, or if for any reason
+this Agreement is held or deemed to create indebtedness or a security interest
+in the Receivables and other Transferred Assets, then it is intended that:
+
+(i) This Agreement shall be deemed to be a security agreement within the meaning
+of Articles 8 and 9 of the New York UCC and the UCC of any other applicable
+jurisdiction;
+
+ 
+
+   23    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(ii) The conveyance provided for in Section 2.01 shall be deemed to be a grant
+by the Seller of, and the Seller hereby grants to the Issuer, a security
+interest in all of its right (including the power to convey title thereto),
+title and interest, whether now owned or hereafter acquired, in and to the
+Receivables and other Transferred Assets, to secure such indebtedness and the
+performance of the obligations of the Seller hereunder;
+
+(iii) The possession by the Issuer, or the Servicer as the Issuer’s agent, of
+the Receivable Files and any other property as constitute instruments, money,
+negotiable documents or chattel paper shall be deemed to be “possession by the
+secured party” or possession by the purchaser or a person designated by such
+purchaser, for purposes of perfecting the security interest pursuant to the New
+York UCC and the UCC of any other applicable jurisdiction; and
+
+(iv) Notifications to persons holding such property, and acknowledgments,
+receipts or confirmations from persons holding such property, shall be deemed to
+be notifications to, or acknowledgments, receipts or confirmations from, bailees
+or agents (as applicable) of the Issuer for the purpose of perfecting such
+security interest under applicable law.
+
+SECTION 2.02 Custody of Receivable Files. To assure uniform quality in servicing
+the Receivables and to reduce administrative costs, the Issuer, upon the
+execution and delivery of this Agreement, appoints the Servicer, and the
+Servicer accepts such appointment, to act as the agent of the Issuer as
+custodian of the following documents or instruments (or a photocopy or other
+image thereof that the Servicer shall keep on file in accordance with its
+Customary Servicing Practices) that are hereby constructively delivered to the
+Issuer with respect to each Receivable (but only to the extent applicable to
+such Receivable and only to the extent held in tangible paper form or electronic
+form) (collectively, the “Receivable Files”):
+
+(a) the original of each tangible record constituting or forming a part of such
+Receivable that is tangible chattel paper (as such term is used in Section 9-105
+of the UCC) and a single “authoritative copy” (as such term is used in
+Section 9-105 of the UCC) of each electronic record constituting or forming a
+part of each Receivable that is electronic chattel paper, fully executed by the
+Obligor;
+
+(b) the original credit application executed by the related Obligor;
+
+(c) the original Certificate of Title or, if not yet received, evidence that an
+application therefor has been submitted with the appropriate authority, a
+guaranty of title from a Dealer or such other document (electronic or otherwise,
+as used in the applicable jurisdiction) that the Servicer keeps on file, in
+accordance with its Customary Servicing Practices, evidencing the security
+interest of NMAC in the Financed Vehicle; provided, however, that in lieu of
+being held in the Receivable File, the Certificate of Title may be held by a
+third party service provider engaged by the Servicer to obtain or hold
+Certificates of Title; and
+
+ 
+
+   24    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(d) any and all other records (whether tangible or electronic) that the Servicer
+shall keep on file, in accordance with its Customary Servicing Practices,
+relating to such Receivable, the related Obligor or Financed Vehicle.
+
+SECTION 2.03 Acceptance by Issuer. The Issuer acknowledges its acceptance
+pursuant to this Agreement, of all right, title and interest in and to the
+Receivables and the other Transferred Assets conveyed by the Seller pursuant to
+this Agreement and declares and shall declare from and after the date hereof
+that the Issuer holds and shall hold such right, title and interest, upon the
+terms and conditions set forth in this Agreement.
+
+ARTICLE III.
+
+The Receivables
+
+SECTION 3.01 Representations and Warranties of the Seller with Respect to the
+Receivables. The Seller makes the representations and warranties set forth on
+Schedule I to this Agreement as to the Receivables on which the Issuer is deemed
+to have relied in acquiring the Receivables. Such representations and warranties
+speak as of the Closing Date or as of such date expressly set forth therein, but
+shall survive the sale, transfer and assignment of the Receivables to the Issuer
+and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
+
+SECTION 3.02 Repurchase upon Breach. The Seller, the Servicer, the Issuer, the
+Indenture Trustee and the Owner Trustee, as the case may be, shall inform the
+other parties to this Agreement and the Indenture Trustee promptly, in writing,
+upon the discovery of any breach of the Seller’s representations and warranties
+pursuant to Section 3.01 that materially and adversely affects the interests of
+the Securityholders in any Receivable; provided, that the delivery of the
+Servicer’s Certificate pursuant to Section 4.08 shall be deemed to constitute
+prompt written notice by the Servicer of such breach. If the breach materially
+and adversely affects the interests of the Securityholders in such Receivable,
+then the Seller shall either (a) correct or cure such breach or (b) repurchase
+such Receivable from the Issuer, in either case on or before the Distribution
+Date following the end of the Collection Period which includes the 60th day (or,
+if the Seller elects, an earlier date) after the date that the Seller became
+aware or was notified of such breach. Any such breach or failure will be deemed
+not to have a material and adverse effect on the interests of Securityholders if
+such breach or failure does not affect the ability of the Issuer to receive and
+retain timely payment in full on such Receivable. In consideration of the
+purchase of the Receivables, the Seller shall remit (or cause to be remitted)
+the Repurchase Payment in the manner specified in Section 5.05. Upon payment of
+such Repurchase Payment by the Seller, the Issuer and the Indenture Trustee
+shall release and shall execute and deliver such instruments of release,
+transfer or assignment, in each case without recourse or representation, as
+shall be reasonably requested of it to vest in the Seller or its designee any
+Receivable and any related Purchased Assets repurchased pursuant hereto. The
+Indenture Trustee and the Owner Trustee shall not be deemed to have knowledge of
+any breach of the Seller’s representations and warranties unless an Authorized
+Officer has actual knowledge thereof or has received written notice thereof in
+accordance with the Basic Documents. Neither the Owner Trustee nor the Indenture
+Trustee will have any duty to conduct an affirmative investigation as to the
+occurrence of any condition requiring the repurchase of any Receivable pursuant
+to this Section 3.02. The sole remedy of the Issuer, the Indenture Trustee (by
+operation
+
+ 
+
+   25    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+of the assignment of the Issuer’s rights hereunder pursuant to the Indenture),
+or any Securityholder with respect to a breach with a material adverse effect on
+the interests of Securityholders caused by the Seller’s representations and
+warranties pursuant to Section 3.01, shall be to require the Seller to
+repurchase Receivables pursuant to this Section 3.02.
+
+SECTION 3.03 Duties of Servicer as Custodian.
+
+(a) Safekeeping. The Servicer, in its capacity as custodian, shall hold the
+Receivable Files for the benefit of the Issuer and the Indenture Trustee, as
+pledgee of the Issuer. In performing its duties as custodian, the Servicer shall
+act in accordance with its Customary Servicing Practices. The Servicer will
+promptly report to the Issuer and the Indenture Trustee any failure on its part
+to hold a material portion of the Receivable Files and maintain its accounts,
+records and computer systems as herein provided in all material respects and
+promptly take appropriate action to remedy any such material failure. The
+Servicer may, in accordance with its Customary Servicing Practices: (i) maintain
+all or a portion of the Receivable Files in electronic form and (ii) maintain
+custody of all or any portion of the Receivable Files with one or more of its
+agents or designees. Nothing in this Section 3.03 shall affect the obligation of
+the Servicer to observe any applicable law prohibiting disclosure of information
+regarding the Obligors and the failure of the Servicer to provide access to
+information as a result of such obligation shall not constitute a breach of this
+Section 3.03.
+
+(b) Maintenance of and Access to Records. The Servicer shall maintain each
+Receivable File in the United States (it being understood that the Receivable
+Files, or any part thereof, may be maintained at the offices of any Person to
+whom the Servicer has delegated responsibilities in accordance with
+Section 4.12). The Servicer shall make available to the Issuer and the Indenture
+Trustee or their respective duly authorized representatives, attorneys or
+auditors the Receivable Files and the related accounts, records and computer
+systems maintained by the Servicer at such times during normal business hours
+upon reasonable prior written notice as the Issuer or the Indenture Trustee
+shall instruct. The Servicer shall permit the Issuer, the Indenture Trustee and
+their respective agents at any time during normal business hours upon reasonable
+prior written notice to inspect, audit and make copies of and abstracts from the
+Servicer’s records regarding any Receivable.
+
+(c) Release of Receivable Files. Upon the occurrence and during the continuation
+of a Servicer Default or to the extent necessary for the Indenture Trustee to
+comply with its obligations under the Basic Documents, the Servicer shall, upon
+instruction from the Indenture Trustee, release any Receivable File to the
+Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s
+designee, as the case may be, at such place or places as the Indenture Trustee
+may designate, as soon as commercially practicable. Any document so released
+will be handled by the Indenture Trustee with due care and returned to the
+Servicer for safekeeping as soon as the Indenture Trustee or its agent or
+designee, as the case may be, has no further need therefor.
+
+ 
+
+   26    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 3.04 Instructions; Authority To Act. The Servicer shall be deemed to
+have received proper instructions with respect to the Receivable Files upon its
+receipt of written instructions signed by an Authorized Officer of the Issuer or
+the Indenture Trustee.
+
+SECTION 3.05 Custodian’s Indemnification. The Servicer, as custodian, shall
+indemnify the Issuer, the Owner Trustee and the Indenture Trustee for any and
+all liabilities, obligations, losses, compensatory damages, payments, costs or
+expenses of any kind whatsoever (including reasonable attorneys’ fees and
+expenses) that may be imposed on, incurred by or asserted against any of them as
+the result of any improper act or omission in any way relating to the
+maintenance and custody by the Servicer as custodian of the Receivable Files
+including any legal fees and expenses incurred in connection with the
+enforcement by any such Person of any indemnification or other obligation of the
+Servicer as custodian; provided, however, that the Servicer shall not be liable
+to the Owner Trustee for any portion of any such amount resulting from the
+willful misfeasance, bad faith or negligence of the Owner Trustee, and the
+Servicer shall not be liable to the Indenture Trustee for any portion of any
+such amount resulting from the willful misfeasance, bad faith or negligence of
+the Indenture Trustee. Any indemnity claimed under this Section 3.05 shall be
+subject to the procedures described in Section 7.02.
+
+SECTION 3.06 Effective Period and Termination. The Servicer’s appointment as
+custodian shall become effective as of the Cut-off Date, and shall continue in
+full force and effect until terminated pursuant to this Section 3.06. If NMAC
+resigns as Servicer in accordance with the provisions of this Agreement or if
+all of the rights and obligations of any Servicer shall have been terminated
+under Section 8.01, the appointment of NMAC as custodian may be terminated by
+the Indenture Trustee or by the Holders of Notes evidencing not less than 25% of
+the Outstanding Amount of the Notes or, with the consent of Holders of the Notes
+evidencing not less than 25% of the Outstanding Amount of the Notes, by the
+Owner Trustee or by the Certificateholders evidencing not less than 25% of the
+Certificate Balance, in the same manner as the Indenture Trustee or such Holders
+may terminate the rights and obligations of the Servicer under Section 8.01. As
+soon as practicable after any termination of such appointment, the Servicer
+shall deliver the Receivable Files and the related accounts and records
+maintained by the Servicer to the Relevant Trustee or the agent thereof at such
+place or places as the Relevant Trustee may reasonably designate.
+
+ARTICLE IV.
+
+Administration and Servicing of Receivables
+
+SECTION 4.01 Duties of Servicer.
+
+(a) The Servicer is hereby appointed by the Issuer and authorized to act as
+agent for the Issuer and, in such capacity, shall manage, service, administer
+and make collections on the Receivables in accordance with its Customary
+Servicing Practices, using that degree of skill and attention that the Servicer
+exercises with respect to all comparable receivables that it services for itself
+or others. There are no requirements under the Basic Documents to maintain a
+back-up servicer. The Servicer and its Affiliates may engage in any marketing
+practice or promotion or any sale of any products, goods or services to Obligors
+with respect to the Receivables so long as such
+
+ 
+
+   27    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+practices, promotions or sales are offered to obligors of comparable motor
+vehicle receivables serviced by the Servicer for itself and others, whether or
+not such practices, promotions or sales might result in a decrease in the
+aggregate amount of payments on the Receivables, prepayments or faster or slower
+timing of the payment of the Receivables. Subject to Section 4.05, the Servicer
+may grant extensions, rebates, deferrals, amendments, modifications or
+adjustments with respect to any Receivable in accordance with its Customary
+Servicing Practices; provided, however, that if the Servicer (i) extends the
+date for final payment by the Obligor of any Receivable beyond the last day of
+the Collection Period preceding the latest Final Scheduled Distribution Date of
+any Notes issued under the Indenture or (ii) reduces the APR or Principal
+Balance with respect to any Receivable other than as required by applicable law
+(including, without limitation, by the Servicemembers Civil Relief Act) or court
+order, it will promptly purchase such Receivable in the manner provided in
+Section 4.06 if such change in the Receivable would materially and adversely
+affect the interests of the Securityholders in such Receivable. The Servicer may
+in its discretion waive any late payment charge or any other fees that may be
+collected in the ordinary course of servicing a Receivable.
+
+(b) The Servicer’s duties shall include collection and posting of all payments,
+responding to inquiries of Obligors on the Receivables, investigating
+delinquencies, sending remittance advises to Obligors, reporting tax information
+to Obligors, accounting for collections and furnishing monthly and annual
+statements to the Owner Trustee and the Indenture Trustee with respect to
+distributions. The Servicer is not required under the Basic Documents to make
+any disbursements via wire transfer or otherwise on behalf of an Obligor. There
+are no requirements under the Receivables or the Basic Documents for funds to
+be, and funds shall not be, held in trust for an Obligor. The Servicer shall not
+make any payments or distributions on behalf of an Obligor.
+
+(c) Without limiting the generality of the foregoing, the Servicer is authorized
+and empowered to execute and deliver, on behalf of itself, the Trust, the Owner
+Trustee, the Indenture Trustee and the Securityholders or any of them, any and
+all instruments of satisfaction or cancellation, or partial or full release or
+discharge, and all other comparable instruments, with respect to the Receivables
+or to the Financed Vehicles securing the Receivables. If the Servicer shall
+commence a legal proceeding to enforce a Receivable (other than a Repurchased
+Receivable), the Issuer shall thereupon be deemed to have automatically
+assigned, solely for the purpose of collection, such Receivable to the Servicer.
+If in any enforcement suit or legal proceeding it shall be held that the
+Servicer may not enforce a Receivable on the ground that it shall not be a real
+party in interest or a holder entitled to enforce such Receivable, the Issuer
+shall, at the Servicer’s expense and direction, take steps to enforce the
+Receivable, including bringing suit in its name or the name of the Indenture
+Trustee or the Securityholders. The Issuer shall furnish the Servicer with any
+powers of attorney and other documents reasonably necessary or appropriate to
+enable the Servicer to carry out its servicing and administrative duties
+hereunder.
+
+ 
+
+   28    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(d) Nothing in any section of this Agreement shall be construed to prevent the
+Servicer from implementing new programs, whether on an intermediate, pilot or
+permanent basis, or on a regional or nationwide basis, or from modifying its
+standards, policies and procedures as long as, in each case, such programs or
+modifications would be consistent with its Customary Servicing Practices, even
+if such practices, promotions or sales might result in a decrease in the
+aggregate amount of payments on the Receivables, prepaying or faster or slower
+timing of the payment of the Receivables.
+
+(e) Notwithstanding anything in this Agreement to the contrary, the Servicer may
+refinance any Receivable and deposit the full Principal Balance of such
+Receivable into the Collection Account. The receivable created by such
+refinancing shall not be property of the Issuer. The Servicer and its Affiliates
+may also sell insurance or debt cancellation products, including products which
+result in the cancellation of some or all of the amount of a Receivable upon the
+death or disability of the Obligor or any casualty with respect to the Financed
+Vehicle.
+
+SECTION 4.02 Collection of Receivable Payments. The Servicer shall make
+reasonable efforts to collect all payments called for under the terms and
+provisions of the Receivables as and when the same shall become due in
+accordance with its Customary Servicing Practices. Payments on the Receivables
+made in accordance with the related documentation for such Receivables, shall be
+posted to the Servicer’s Obligor records in accordance with the Servicer’s
+Customary Servicing Practices. Such payments shall be allocated to principal,
+interest or other items in accordance with the related documentation for such
+Receivables
+
+SECTION 4.03 Realization upon Receivables. On behalf of the Issuer, the Servicer
+shall use commercially reasonable efforts, consistent with its Customary
+Servicing Practices, to repossess or otherwise convert the ownership of the
+Financed Vehicle securing any Receivable as to which the Servicer shall have
+determined eventual payment in full is unlikely, unless it determines in its
+sole discretion that repossession will not increase the Net Liquidation Proceeds
+by an amount greater than the expense of such repossession or that the proceeds
+ultimately recoverable with respect to such Receivable would be increased by
+forbearance. The Servicer shall follow such Customary Servicing Practices and
+procedures as it shall deem necessary or advisable, which may include reasonable
+efforts to realize upon any Dealer Recourse and selling the related Financed
+Vehicle at public or private sale. The foregoing shall be subject to the
+provision that, in any case in which the Financed Vehicle shall have suffered
+damage, the Servicer shall not be required to expend funds in connection with
+the repair or the repossession of such Financed Vehicle unless it shall
+determine in its discretion that such repair and/or repossession will increase
+the Net Liquidation Proceeds.
+
+SECTION 4.04 Maintenance of Security Interests in Financed Vehicles. The
+Servicer shall, in accordance with its Customary Servicing Practices, take such
+steps as are necessary to maintain perfection of the security interest created
+by each Receivable in the related Financed Vehicle. The Servicer is hereby
+authorized to take such steps as are necessary to re-perfect such security
+interest on behalf of the Issuer and the Indenture Trustee in the event of the
+relocation of a Financed Vehicle or for any other reason. If the assignment of a
+Receivable to the Issuer is insufficient, without a notation on the related
+Financed Vehicle’s Certificate of Title, to grant to the Issuer a first priority
+perfected security interest in the related Financed Vehicle, the Servicer hereby
+agrees to serve as the agent of the Issuer for the purpose of perfecting the
+security interest of the Issuer in such Financed Vehicle and agrees that the
+Servicer’s listing as the secured party
+
+ 
+
+   29    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+on the Certificate of Title is in this capacity as agent of the Issuer. The
+provisions set forth in this Section 4.04 are the sole requirements under the
+Basic Documents with respect to the maintenance of collateral or security on the
+Receivables. It is understood that the Financed Vehicles are the collateral and
+security for the Receivables, but that the Certificate of Title with respect to
+a Financed Vehicle does not constitute collateral and merely evidences such
+security interest.
+
+SECTION 4.05 Covenants of Servicer. Unless required by law or court order, the
+Servicer shall not release the Financed Vehicle securing any Receivable from the
+security interest granted by such Receivable in whole or in part except (i) in
+the event of payment in full by or on behalf of the Obligor thereunder or
+payment in full less a deficiency which the Servicer would not attempt to
+collect in accordance with its Customary Servicing Practices, (ii) in connection
+with repossession or (iii) except as may be required by an insurer in order to
+receive proceeds from any insurance policy covering such Financed Vehicle.
+
+SECTION 4.06 Purchase of Receivables upon Breach. The Servicer or the Issuer
+shall inform the other party and the Indenture Trustee promptly, in writing,
+upon the discovery of any breach by the Servicer of its obligations under
+Section 4.01(a) or 4.05 that would materially and adversely affect any
+Receivable. If the breach materially and adversely affects the interests of the
+Securityholders in such Receivable, then the Servicer shall either (a) correct
+or cure such breach or (b) repurchase such Receivable from the Issuer, in either
+case on or before the Distribution Date following the end of the Collection
+Period which includes the 60th day (or, if the Servicer elects, an earlier date)
+after the date that the Servicer became aware or was notified of such breach.
+Any such breach or failure will be deemed not to have a material and adverse
+effect if such breach or failure does not affect the ability of the Issuer to
+receive and retain timely payment in full on such Receivable. In consideration
+of such Receivable, the Servicer shall remit the Repurchase Payment in the
+manner specified in Section 5.05. Upon payment of such Repurchase Payment by the
+Servicer, the Issuer and the Indenture Trustee shall release and shall execute
+and deliver such instruments of release, transfer or assignment, in each case
+without recourse or representation, as shall be reasonably requested of it to
+vest in the Servicer or its designee any Receivable and any related Purchased
+Assets repurchased pursuant hereto. Neither the Owner Trustee nor the Indenture
+Trustee will have any duty to conduct an affirmative investigation as to the
+occurrence of any condition requiring the repurchase of any Receivable pursuant
+to this Section 4.06. The sole remedy of the Indenture Trustee, the Owner
+Trustee, the Issuer, the Securityholders against the Servicer with respect to a
+breach by the Servicer of its obligations under Sections 4.01(a) or 4.05 shall
+be to require the Servicer to purchase Receivables pursuant to this
+Section 4.06.
+
+SECTION 4.07 Servicing Fee and Expenses. As compensation for the performance of
+its obligations hereunder, the Servicer shall be entitled to receive on each
+Distribution Date the Base Servicing Fee and shall be entitled to retain all
+Supplemental Servicing Fees. The Servicer will also be entitled to receive
+investment earnings (net of investment losses and expenses) on funds on deposit
+in the Collection Account and the Reserve Account during each Collection Period.
+Except to the extent otherwise provided herein, the Servicer shall be required
+to pay all expenses incurred by it in connection with its activities under this
+Agreement (including fees and disbursements of independent accountants, taxes
+imposed on the Servicer, expenses incurred in connection with distributions and
+reports to Securityholders and all other fees and expenses not expressly stated
+under this Agreement to be for the account of the Securityholders).
+
+ 
+
+ 
+
+   30    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 4.08 Servicer’s Certificate. On or before each Determination Date, the
+Servicer shall deliver to the Owner Trustee, each Paying Agent and the Indenture
+Trustee, with a copy to each Rating Agency, a Servicer’s Certificate containing
+all information necessary to make the distributions pursuant to Sections 5.06,
+5.07 and 5.08 of this Agreement and Section 5.04(d) of the Indenture for the
+Collection Period preceding the date of such Servicer’s Certificate, all
+information necessary for the Owner Trustee to send statements to the
+Certificateholders and the Indenture Trustee to send statements to the
+Noteholders pursuant to the Trust Agreement or Indenture, as the case may be.
+Each of the Owner Trustee and the Indenture Trustee may conclusively rely on the
+information in any Servicer’s Certificate and shall have no duty to confirm or
+verify the contents thereof. At the sole option of the Servicer, each Servicer
+Certificate may be delivered in electronic or hard copy form.
+
+SECTION 4.09 Communication among Noteholders. A Noteholder (if the Notes are
+represented by Definitive Notes) or a Note Owner (if the Notes are represented
+by Book-Entry Notes) may send a request to the Seller at any time notifying the
+Seller that such Noteholder or Note Owner, as applicable, would like to
+communicate with other Noteholders or Note Owners, as applicable, with respect
+to an exercise of their rights under the terms of the Basic Documents. If the
+requesting party is not a Noteholder as reflected on the Note Register, the
+Seller may require that the requesting party provide Verification Documents.
+Each request must include (i) the name of the requesting Noteholder or Note
+Owner, and (ii) a description of the method by which other Noteholders or Note
+Owners, as applicable, may contact the requesting Noteholder or Note Owner. A
+Noteholder or Note Owner, as applicable, that delivers a request under this
+Section 4.09 will be deemed to have certified to the Issuer and the Servicer
+that its request to communicate with other Noteholders or Note Owners, as
+applicable, relates solely to a possible exercise of rights under this Indenture
+or the other Basic Documents, and will not be used for other purposes. In each
+monthly distribution report on Form 10-D under the Exchange Act with respect to
+the Issuer, the Seller shall include disclosure regarding any request that
+complies with the requirements of this Section 4.09 received during the related
+Collection Period from a Noteholder or Note Owner to communicate with other
+Noteholders or Note Owners, as applicable, related to the Noteholders or Note
+Owners exercising their rights under the terms of the Basic Documents. The
+disclosure in such Form 10-D regarding the request to communicate shall include
+(w) the name of the investor making the request, (x) the date the request was
+received, (y) a statement to the effect that the Issuer has received a request
+from such Noteholder or Note Owner, as applicable, stating that such Noteholder
+or Note Owner, as applicable, is interested in communicating with other
+Noteholders or Note Owners, as applicable, with regard to the possible exercise
+of rights under the Basic Documents, and (z) a description of the method other
+Noteholders or Note Owners, as applicable, may use to contact the requesting
+Noteholder or Note Owner.
+
+SECTION 4.10 Annual Statement as to Compliance; Notice of Default.
+
+(a) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee and
+each Rating Agency, within 90 days after the end of each fiscal year of the
+Servicer, beginning June 30, 2021, an Officer’s Certificate with respect to the
+prior fiscal year of the Servicer (or with respect to the initial Officer’s
+Certificate, the period from the date of the initial issuance of the Notes to
+March 31, 2021), providing the information required under Item 1123 of
+Regulation AB.
+
+ 
+
+   31    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) The Servicer shall deliver to the Issuer, the Owner Trustee, the Indenture
+Trustee and each Rating Agency, promptly after having obtained knowledge
+thereof, written notice (in the form of an Officer’s Certificate) of any event
+that with the giving of notice or lapse of time, or both, would become a
+Servicer Default under Section 8.01. Except to the extent set forth in this
+Section 4.10(b) of this Agreement and Section 5.01 of the Indenture, the Basic
+Documents do not require any policies or procedures to monitor any performance
+or other triggers and Events of Default.
+
+(c) The Servicer will deliver to the Issuer, within 90 days after the end of
+each fiscal year of the Servicer, beginning June 30, 2021, a report regarding
+the Servicer’s assessment of compliance with the Servicing Criteria during the
+immediately preceding fiscal year, including disclosure of any material instance
+of non-compliance identified by the Servicer, as required under paragraph (b) of
+Rule 13a-18 and Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
+
+(d) The Indenture Trustee will deliver to the Issuer, on or before June 15th of
+each calendar year, commencing in 2021, a report regarding the Indenture
+Trustee’s assessment of compliance with the applicable Servicing Criteria during
+the immediately preceding fiscal year, including disclosure of any material
+instance of non-compliance identified by the Indenture Trustee, as required
+under paragraph (b) of Rule 13a-18 and Rule 15d-18 of the Exchange Act and Item
+1122 of Regulation AB.
+
+SECTION 4.11 Annual Registered Public Accounting Firm Attestation.
+
+(a) On or before the 90th day following the end of each fiscal year, beginning
+with the fiscal year ending March 31, 2021, the Servicer shall cause a firm of
+independent registered public accountants (who may also render other services to
+the Servicer, the Seller or their respective Affiliates) to furnish to the
+Issuer, with a copy to the Indenture Trustee, the Servicer and the Seller, each
+attestation report on assessments of compliance with the Servicing Criteria with
+respect to the Servicer or any Affiliate thereof during the related fiscal year
+delivered by such accountants pursuant to paragraph (c) of Rule 13a-18 or Rule
+15d-18 of the Exchange Act and Item 1122 of Regulation AB. The certification
+required by this paragraph may be replaced by any similar certification using
+other procedures or attestation standards which are now or in the future in use
+by servicers of comparable assets, or which otherwise comply with any rule,
+regulation, “no action” letter or similar guidance promulgated by the
+Commission.
+
+The Servicer, however, shall not be obligated to add as an addressee or reliance
+party with respect to any report described above any Person who does not comply
+with or agree to the required procedures of such firm of independent certified
+public accountants, including but not limited to execution of engagement letters
+or access letters regarding such reports.
+
+ 
+
+   32    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) On or before June 15th of each calendar year, commencing in 2021, the
+Indenture Trustee shall cause a firm of independent registered public
+accountants (who may also render other services to the Indenture Trustee) to
+furnish to the Issuer, with a copy to the Servicer and the Seller, an
+attestation report on assessment of compliance with the applicable Servicing
+Criteria with respect to the Indenture Trustee during the immediately preceding
+fiscal year delivered by such accountants pursuant to paragraph (c) of Rule
+13a-18 or Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB. The
+certification required by this paragraph may be replaced by any similar
+certification using other procedures or attestation standards which are now or
+in the future in use by servicers of comparable assets, or which otherwise
+comply with any rule, regulation, “no action” letter or similar guidance
+promulgated by the Commission.
+
+SECTION 4.12 Appointment of Subservicer. So long as NMAC acts as the Servicer,
+the Servicer may at any time without notice or consent delegate (a) any or all
+of its duties under this Agreement to any of its Affiliates or (b) specific
+duties as servicer under this Agreement through subcontractors; provided,
+however, that no such delegation or subcontracting shall relieve the Servicer of
+its responsibilities with respect to such duties as to which the Servicer shall
+remain primarily responsible with respect thereto. For any servicing activities
+delegated to third parties in accordance with this Section 4.12, the Servicer
+shall follow such policies and procedures to monitor the performance of such
+third parties and compliance with such servicing activities as the Servicer
+follows with respect to comparable motor vehicle receivables serviced by the
+Servicer for its own account.
+
+SECTION 4.13 Fidelity Bond. The Servicer shall not be required to maintain a
+fidelity bond or error and omissions policy.
+
+SECTION 4.14 Administrator Compensation. The Servicer shall pay the
+Administrative Agent compensation pursuant to Section 3 of the Administration
+Agreement.
+
+ARTICLE V.
+
+Distributions; Accounts;
+
+Statements to the Certificateholders and the Noteholders
+
+SECTION 5.01 Establishment of Accounts.
+
+(a) The Servicer shall cause to be established the following accounts:
+
+(i) For the benefit of the Securityholders in the name of the Indenture Trustee,
+an account (the “Collection Account”), which shall be an Eligible Account
+initially established with the Indenture Trustee.
+
+(ii) For the benefit of the Securityholders in the name of the Indenture
+Trustee, an account (the “Reserve Account”), which shall be an Eligible Account
+initially established with the Indenture Trustee.
+
+ 
+
+   33    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) All amounts held in the Collection Account and the Reserve Account
+(collectively, the “Accounts”) shall, to the extent permitted by applicable
+laws, rules and regulations and as directed by the Servicer, be invested by the
+Indenture Trustee in Eligible Investments in accordance with Section 8.03 of the
+Indenture. All such Eligible Investments shall mature not later than the
+Business Day preceding the next Distribution Date, in such manner that such
+amounts invested shall be available to make the required distributions on the
+Distribution Date. The Servicer will not direct the Indenture Trustee, and the
+Issuer shall cause the Servicer not to make any investment of any funds or to
+sell any investment held in the Collection Account unless the security interest
+granted and perfected in such account will continue to be perfected in such
+investment or the proceeds of such sale, in either case without any further
+action by any Person, and, in connection with any direction to the Indenture
+Trustee to make any such investment or sale, if requested by the Indenture
+Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of
+Counsel, acceptable to the Indenture Trustee, to such effect.
+
+(c) If either (i) the Servicer, in its sole discretion and for any reason,
+notifies the Indenture Trustee and the Owner Trustee in writing that the
+Accounts should be moved or (ii) the Indenture Trustee or the Owner Trustee, as
+applicable, notifies the Servicer that the short-term unsecured debt obligations
+of the Indenture Trustee or the Owner Trustee, as applicable, no longer have the
+Required Deposit Rating, then, in each case, the Servicer shall, within ten
+Business Days after receipt of the notice described in clause (i) or (ii), as
+applicable, cause the Accounts (x) to be moved to segregated trust accounts in a
+bank or trust company selected by the Servicer, the short-term unsecured debt
+obligations of which shall have the Required Deposit Rating, or (y) to be moved
+to the trust department of the Indenture Trustee or the Owner Trustee, as
+applicable. The Indenture Trustee or the Owner Trustee, as applicable, shall
+assist the Servicer with the moving of Accounts described in the preceding
+sentence.
+
+(d) Earnings on investment of funds in the Collection Account and the Reserve
+Account shall be paid to the Servicer as additional servicing compensation, and
+any losses and investment expenses shall be charged against the funds on deposit
+in the Collection Account or the Reserve Account, as applicable.
+
+(e) Except for the Collection Account and the Reserve Account, there are no
+accounts required to be maintained under the Basic Documents.
+
+(f) The Indenture Trustee shall transfer all amounts remaining on deposit in the
+Collection Account on the Distribution Date on which the Notes of all Classes
+have been paid in full (or when substantially all of the Collateral is otherwise
+released from the lien of the Indenture) to the Designated Account, and take all
+necessary or appropriate actions to transfer all of its right, title and
+interest in the Collection Account, all funds or investments held therein and
+all proceeds thereof, whether or not on behalf of the Securityholders, to the
+Owner Trustee for the benefit of the Certificateholders, subject to the
+limitations set forth in the Indenture with respect to amounts held for payment
+to Noteholders that do not promptly deliver a Note for payment on such
+Distribution Date. After the transfer to the Designated Account described in the
+immediately preceding sentence, references in this Agreement to “Collection
+Account” shall be deemed to be references to the “Designated Account.”
+
+ 
+
+   34    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(g) With respect to the Accounts and all property held therein, the Issuer
+agrees, by its acceptance hereof that, on the terms and conditions set forth in
+the Indenture, for so long as Notes of any Class remain outstanding, the
+Indenture Trustee shall possess all right, title and interest therein (excluding
+interest or investment income thereon payable to the Servicer or the Seller, as
+the case may be), and the Accounts shall be under the sole dominion and control
+of the Indenture Trustee for the benefit of the Noteholders and the
+Certificateholders, as the case may be, as set forth in the Indenture. The
+parties hereto agree that the Servicer shall have the power, revocable by the
+Indenture Trustee or by the Issuer with the consent of the Indenture Trustee, to
+instruct the Indenture Trustee to make withdrawals and payments from the
+Collection Account for the purpose of permitting the Servicer, Indenture
+Trustee, Issuer or the Owner Trustee to carry out its respective duties
+hereunder or under the Indenture or the Trust Agreement, as the case may be.
+
+Notwithstanding the foregoing, the Servicer shall be entitled to withhold, or to
+be reimbursed from amounts otherwise payable into or on deposit in the
+Collection Account, as the case may be, amounts previously deposited in the
+Collection Account but later determined to have resulted from mistaken deposits
+or posting.
+
+(h) With respect to the Account Property, the parties hereto agree that:
+
+(i) any Account Property that consists of uninvested funds shall be held solely
+in Eligible Accounts and, except as otherwise provided herein, each such
+Eligible Account shall be subject to the exclusive custody and control of the
+Indenture Trustee, and, except as otherwise provided in the Basic Documents, the
+Indenture Trustee or its designee shall have sole signature authority with
+respect thereto;
+
+(ii) any Account Property that constitutes Physical Property shall be delivered
+to the Indenture Trustee or its designee, in accordance with paragraph (a) of
+the definition of “Delivery” and shall be held, pending maturity or disposition,
+solely by the Indenture Trustee or any such designee;
+
+(iii) any Account Property that is an “uncertificated security” under Article 8
+of the UCC and that is not governed by clause (iv) below shall be delivered to
+the Indenture Trustee or its designee in accordance with paragraph (c) of the
+definition of “Delivery” and shall be maintained by the Indenture Trustee or
+such designee, pending maturity or disposition, through continued registration
+of the Indenture Trustee’s (or its designee’s) ownership of such security on the
+books of the issuer thereof;
+
+(iv) any Account Property that is an uncertificated security that is a
+“book-entry security” (as such term is defined in Federal Reserve Bank Operating
+Circular No. 7) held in a securities account at a Federal Reserve Bank and
+eligible for transfer through the Fedwire® Securities Service operated by the
+Federal Reserve System pursuant to Federal book-entry regulations shall be
+delivered in accordance with paragraph (b) of the definition of “Delivery” and
+shall be maintained by the
+
+ 
+
+   35    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Indenture Trustee or its designee or a securities intermediary (as such term is
+defined in Section 8-102(a)(14) of the UCC) acting solely for the Indenture
+Trustee or such designee, pending maturity or disposition, through continued
+book-entry registration of such Account Property as described in such paragraph;
+and
+
+(v) to the extent any Account Property is credited to a securities account, the
+account agreement establishing such securities account shall provide that the
+account agreement is governed by the law of the State of New York and that the
+law of the State of New York shall govern all issues specified in Article 2(1)
+of the Hague Securities Convention.
+
+(i) The Indenture Trustee, to the extent it is acting in the capacity of
+securities intermediary with respect to Account Property, covenants and agrees
+that:
+
+(i) it is a “securities intermediary,” as such term is defined in
+Section 8-102(a)(14)(ii) of the relevant UCC;
+
+(ii) pursuant to Section 8-110(e)(1) of the relevant UCC for purposes of Article
+8 of the UCC, the jurisdiction of the Indenture Trustee as “securities
+intermediary” is the State of New York; and
+
+(iii) it has, at the time of entry into this Agreement, one or more offices in
+the United States of America engaged in a business or other regular activity of
+maintaining securities accounts.
+
+To the extent that there are any other agreements with the Indenture Trustee
+governing the Accounts, the parties agree that each and every such agreement is
+hereby amended to provide that, with respect to the Accounts, the law applicable
+to all issues specified in Article 2(1) of the Hague Securities Convention shall
+be the laws of the State of New York.
+
+SECTION 5.02 Collections. Except as otherwise provided in this Agreement, the
+Servicer shall remit to the Collection Account all Collections (other than
+payments on Repurchased Receivables) not later than the second Business Day
+after identification thereof; provided, however, that if the Monthly Remittance
+Condition is satisfied, then the Servicer shall not be required to deposit into
+the Collection Account an amount equal to the Collections received during the
+related Collection Period until the Business Day before each Distribution Date.
+The “Monthly Remittance Condition” shall be deemed to be satisfied if (i) NMAC
+is the Servicer and (ii) NMAC’s short-term unsecured debt obligations are rated
+at least “P-1” by Moody’s and at least “A-1” by S&P (so long as Moody’s and S&P
+are Rating Agencies). Commencing with the first day of the first Collection
+Period that begins at least two Business Days after the day on which the Monthly
+Remittance Condition is not satisfied, all Collections then held by the Servicer
+shall be immediately deposited into the Collection Account and all future
+Collections on or in respect of the Receivables (other than payments on
+Repurchased Receivables) and all Net Liquidation Proceeds shall be remitted by
+the Servicer to the Collection Account not later than the second Business Day
+after identification thereof. Notwithstanding the foregoing, the Servicer may
+remit Collections to the Collection Account on any other alternate remittance
+schedule (but not later than the related Distribution Date) if the Rating Agency
+Condition is satisfied with respect to such alternate remittance schedule.
+Pending deposit into the Collection Account, Collections may be commingled and
+used by the Servicer at its own risk and are not required to be segregated from
+its own funds.
+
+ 
+
+   36    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 5.03 Application of Collections. All Collections for the related
+Collection Period with respect to each Receivable shall be posted to the
+Servicer’s Obligor records in accordance with the Servicer’s Customary Servicing
+Practices.
+
+SECTION 5.04 [Reserved]
+
+SECTION 5.05 Additional Deposits.
+
+(a) The following additional deposits shall be made to the Collection Account:
+(i) the Seller shall remit the aggregate Repurchase Payments with respect to
+Repurchased Receivables pursuant to Section 3.02; (ii) the Servicer shall remit
+(A) the aggregate Repurchase Payments with respect to Repurchased Receivables
+pursuant to Section 4.06 and (B) the cash amount required upon any optional
+purchase of the Receivables by the Servicer, or any Successor Servicer, pursuant
+to Section 9.01; and (iii) the Indenture Trustee shall transfer the amounts
+described in Sections 5.06 and 5.07 from the Reserve Account to the Collection
+Account pursuant to Section 5.07.
+
+(b) All deposits required to be made pursuant to Section 5.05(a) by the Seller
+or the Servicer, as the case may be, may be made in the form of a single deposit
+and shall be made in immediately available funds, no later than 5:00 P.M., New
+York City time, on the Business Day immediately preceding the related
+Distribution Date. At the direction of the Servicer, the Relevant Trustee shall
+invest such amounts in Eligible Investments in accordance with Section 5.01(b).
+
+(c) So long as NMAC is the Servicer, NMAC (as Servicer or in any other capacity)
+may make the remittances pursuant to Sections 5.02 and 5.05(a) above net of
+amounts to be distributed to the Servicer or its Affiliates pursuant to
+Section 5.06 and may pay the Optional Purchase Price pursuant to Section 9.01(a)
+net of amounts to be distributed to the Servicer or its Affiliates. Accounts
+between the Servicer and such Affiliates will be adjusted accordingly.
+Nonetheless, the Servicer shall account for all of the above described
+remittances and distributions (except for the Supplemental Servicing Fee to the
+extent that the Servicer is entitled to retain such amounts) in the Servicer’s
+Certificate as if the amounts were deposited and/or transferred separately.
+
+SECTION 5.06 Payments and Distributions.
+
+(a) Prior to any acceleration of the Notes pursuant to Section 5.02 of the
+Indenture, on each Distribution Date, the Relevant Trustee (based on information
+contained in, and as directed by, the Servicer’s Certificate delivered on or
+before the related Determination Date) shall make the following deposits and
+distributions, to the extent of Available Amounts on deposit in the Collection
+Account for such Distribution Date and with respect to the related Collection
+Period, in the following order of priority:
+
+ 
+
+   37    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(i) to the Servicer, the Base Servicing Fee and any unpaid Base Servicing Fees
+from one or more prior Collection Periods;
+
+(ii) on a pro rata basis (based on the amounts distributable pursuant to this
+clause to each Class of Noteholders), to the Class A-1 Noteholders, the
+Noteholders’ Interest Distributable Amount for such Class, to the Class A-2
+Noteholders, the Noteholders’ Interest Distributable Amount for such Class, to
+the Class A-3 Noteholders, the Noteholders’ Interest Distributable Amount for
+such Class, and to the Class A-4 Noteholders, the Noteholders’ Interest
+Distributable Amount for such Class, such amounts to be paid from any remaining
+Available Amounts;
+
+(iii) to the Class A-1 Noteholders until the principal amount of the Class A-1
+Notes is reduced to zero, then to the Class A-2 Noteholders, until the principal
+amount of the Class A-2 Notes is reduced to zero, then to the Class A-3
+Noteholders, until the principal amount of the Class A-3 Notes is reduced to
+zero, and then to the Class A-4 Noteholders, until the principal amount of the
+Class A-4 Notes is reduced to zero, an amount equal to the Noteholders’
+Principal Distributable Amount for such Distribution Date, such amounts to be
+paid from any remaining Available Amounts;
+
+(iv) to the Reserve Account, the amount, if any, necessary to increase the
+balance of funds therein to the Specified Reserve Account Balance with respect
+to such Distribution Date, such amounts to be paid from any remaining Available
+Amounts;
+
+(v) to the Indenture Trustee, any accrued and unpaid fees, expenses and
+indemnity payments due pursuant to the Indenture, but only to the extent that
+such fees, expenses or indemnity payments have not been paid by the
+Administrator and have been outstanding for at least sixty (60) days, such
+amounts to be paid from any remaining Available Amounts;
+
+(vi) to the Owner Trustee, any accrued and unpaid fees, expenses and indemnity
+payments due pursuant to the Trust Agreement, but only to the extent that such
+fees, expenses or indemnity payments have not been paid by the Administrator and
+have been outstanding for at least sixty (60) days, such amounts to be paid from
+any remaining Available Amounts;
+
+(vii) to the Asset Representations Reviewer, any accrued and unpaid fees,
+expenses and indemnity payments due pursuant to the Asset Representations Review
+Agreement, but only to the extent that such fees, expenses or indemnity payments
+have not been paid by the Sponsor and have been outstanding for at least sixty
+(60) days, such amounts to be paid from any remaining Available Amounts; and
+
+(viii) any remaining Available Amounts to the Designated Account for
+distribution to the Certificateholders.
+
+ 
+
+   38    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) Notwithstanding any other provision of Section 5.06(a), following the
+occurrence and during the continuation of an Event of Default which has resulted
+in an acceleration of the Notes and unless and until such acceleration has been
+rescinded, on each Distribution Date, the Indenture Trustee shall apply all
+amounts on deposit in the Collection Account pursuant to Section 5.04(b) of the
+Indenture.
+
+(c) Notwithstanding the provisions of Section 5.06(b) of this Agreement and
+Section 5.04(b) of the Indenture, after the occurrence of an Event of Default
+that results in the acceleration of any Notes, on and after the date on which
+such acceleration has been rescinded, on each Distribution Date, the Relevant
+Trustee shall make payments and distributions from the Collection Account in
+accordance with Section 5.06(a).
+
+SECTION 5.07 Reserve Account.
+
+(a) On each Distribution Date, the Relevant Trustee will deposit Available
+Amounts into the Reserve Account pursuant to Section 5.06(c) as provided in the
+Servicer’s Certificate, until the amount on deposit therein equals the Specified
+Reserve Account Balance.
+
+(b) On each Distribution Date, to the extent that amounts on deposit in the
+Collection Account are insufficient to fully fund the payments and distributions
+described in clauses (i) through (iii) of Section 5.06(a) of this Agreement or
+clauses (1) through (5) of Section 5.04(b) of the Indenture, the Relevant
+Trustee will withdraw amounts then on deposit in the Reserve Account, up to the
+amounts of any such deficiencies, and deposit such amounts into the Collection
+Account for application pursuant to such clauses.
+
+(c) On each Distribution Date, as provided in the Servicer’s Certificate, the
+Relevant Trustee will release to the Certificateholders any amounts remaining on
+deposit in the Reserve Account in excess of the Specified Reserve Account
+Balance. Upon the payment in full of the Notes under the Indenture, as directed
+in writing by the Servicer, the Relevant Trustee will deposit into the
+Designated Account for distribution to the Certificateholders any amounts
+remaining on deposit in the Reserve Account and all rights to the Reserve
+Account and all other collateral registered or held therein shall vest in the
+Certificateholders. Upon any such distribution to the Certificateholders, the
+Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
+Relevant Trustee will have no further rights in, or claims to, such amounts.
+
+SECTION 5.08 Statements to Certificateholders and Noteholders.
+
+(a) On each Distribution Date, the Indenture Trustee shall include with each
+distribution to each Noteholder (or make available on its investor website) and
+the Owner Trustee (or, if the Indenture Trustee is the Paying Agent with respect
+to the Certificates, the Indenture Trustee) shall include with each distribution
+to each Certificateholder a statement (which statement may be the Servicer’s
+Certificate and which statement shall also be provided to the Servicer and the
+Servicer will thereafter deliver or otherwise make available a copy of such
+statement to each Rating Agency) based on information in the Servicer’s
+Certificate furnished pursuant to Section 4.08, setting forth for the Collection
+Period relating to such Distribution Date the following information:
+
+ 
+
+   39    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(i) the amount of the payment allocable to the principal amount of each Class of
+Notes;
+
+(ii) the amount of the payment allocable to interest on or with respect to each
+Class of Notes;
+
+(iii) the YSOC Amount;
+
+(iv) the Pool Balance as of the close of business on the last day of the related
+Collection Period;
+
+(v) the Adjusted Pool Balance as of the close of business on the last day of the
+related Collection Period;
+
+(vi) the amount of the Base Servicing Fee paid to the Servicer with respect to
+the related Collection Period, the amount of any unpaid Base Servicing Fees and
+the change in such amount from that of the prior Distribution Date and the
+amount of the Supplemental Servicing Fee, if any, paid to the Servicer with
+respect to the related Collection Period;
+
+(vii) the Noteholders’ Interest Carryover Shortfall and the Noteholders’
+Principal Carryover Shortfall, if any, with respect to each Class of Notes, and
+the change in such amounts from the preceding Distribution Date;
+
+(viii) the Outstanding Amount, the Note Factor and the Note Pool Factor with
+respect to each Class of Notes, and the Certificate Balance, the Certificate
+Factor and the Certificate Pool Factor with respect to the Certificates, in each
+case after giving effect to all payments in respect of principal on such
+Distribution Date;
+
+(ix) the balance of the Reserve Account on such Distribution Date, after giving
+effect to changes thereto on such Distribution Date and the amount of such
+changes;
+
+(x) the amount of defaults and net losses on the Receivables for the related
+Collection Period;
+
+(xi) the number of delinquencies on the Receivables as a percentage of the
+number of Receivables;
+
+(xii) the aggregate Principal Balance of 60-Day Delinquent Receivables for such
+Distribution Date;
+
+(xiii) the Delinquency Percentage;
+
+(xiv) the Delinquency Trigger;
+
+ 
+
+   40    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(xv) any material changes in practices with respect to charge-offs, collection
+and management of delinquent Receivables, and the effect of any grace period,
+re-aging, re-structuring, partial payments or other practices on delinquency and
+loss experience;
+
+(xvi) any material modifications, extensions or waivers to Receivables terms,
+fees, penalties or payments during the Collection Period; and
+
+(xvii) any material breaches of representations, warranties or covenants with
+respect to the Receivables.
+
+(b) Copies of such statements may be obtained by the Certificateholders or the
+Note Owners from the Owner Trustee or the Indenture Trustee, as the case may be,
+by a request in writing. The Owner Trustee or the Indenture Trustee, as the case
+may be, shall provide such copies promptly after such requests.
+
+(c) No disbursements shall be made directly by the Servicer to a Noteholder, and
+the Servicer shall not be required to maintain any investor record relating to
+the posting of disbursements or otherwise.
+
+ARTICLE VI.
+
+The Seller
+
+SECTION 6.01 Representations of Seller. The Seller makes the following
+representations on which the Issuer is deemed to have relied in acquiring the
+Receivables. The representations speak as of the Closing Date, and shall survive
+the sale of the Receivables to the Issuer and the pledge thereof to the
+Indenture Trustee pursuant to the Indenture.
+
+(a) Organization and Good Standing. The Seller is duly organized, validly
+existing and in good standing under the laws of the state of its formation, with
+power and authority to own its properties and to conduct its business as such
+properties are currently owned and such business is presently conducted, and had
+at all relevant times, and has, power, authority and legal right to acquire and
+own the Receivables.
+
+(b) Due Qualification. The Seller is duly qualified to do business as a foreign
+entity in good standing, and has obtained all necessary licenses and approvals
+in all jurisdictions in which the ownership or lease of property or the conduct
+of its business shall require such qualifications and where the failure to so
+qualify would have a material adverse effect on the ability of the Seller to
+perform its obligations under this Agreement.
+
+(c) Power and Authority. The Seller has the power and authority to execute and
+deliver this Agreement and to carry out its terms. The Seller has full power and
+authority to sell and assign the property to be sold and assigned to and
+deposited as part of the Owner Trust Estate, and has duly authorized such sale
+and assignment to the Issuer by all necessary action; and the execution,
+delivery and performance of this Agreement has been duly authorized by the
+Seller by all necessary action.
+
+ 
+
+   41    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(d) Valid Sale; Binding Obligations. This Agreement evidences a valid sale,
+transfer and assignment of the Receivables, enforceable against creditors of and
+purchasers from the Seller (other than a good faith purchaser for value in the
+ordinary course of business who takes actual possession of one or more
+Receivables); and this Agreement is a legal, valid and binding obligation of the
+Seller enforceable in accordance with its terms, subject to the effect of
+bankruptcy, insolvency, reorganization, moratorium or other similar laws
+affecting creditors’ rights generally and by general equitable principles,
+regardless of whether such enforceability shall be considered in a proceeding in
+equity or law.
+
+(e) No Violation. The consummation of the transactions contemplated by this
+Agreement and the fulfillment of the terms hereof do not conflict with, result
+in any breach of any of the terms and provisions of, nor constitute (with or
+without notice or lapse of time) a default under, the governing documents of the
+Seller, or any indenture, agreement or other instrument to which the Seller is a
+party or by which it shall be bound; nor result in the creation or imposition of
+any Lien upon any of its properties pursuant to the terms of any such indenture,
+agreement or other instrument (other than the Basic Documents); nor violate any
+law or, to the best of the Seller’s knowledge, any order, rule or regulation
+applicable to the Seller of any court or of any federal or state regulatory
+body, administrative agency or other governmental instrumentality having
+jurisdiction over the Seller or its properties; which breach, default, conflict,
+Lien or violation in any case would have a material adverse effect on the
+ability of the Seller to perform its obligations under this Agreement.
+
+(f) No Proceedings. There are no proceedings or investigations pending, or, to
+the Seller’s knowledge, threatened, before any court, regulatory body,
+administrative agency or other governmental instrumentality having jurisdiction
+over the Seller or its properties: (i) asserting the invalidity of this
+Agreement, the Trust Agreement, the Indenture, the Certificates or the Notes;
+(ii) seeking to prevent the issuance of the Certificates, or the Notes or the
+consummation of any of the transactions contemplated by this Agreement, the
+Trust Agreement, the Indenture; (iii) seeking any determination or ruling that
+would materially and adversely affect the performance by the Seller of its
+obligations under, or the validity or enforceability of, this Agreement, the
+Trust Agreement, the Indenture, the Certificates or the Notes; or (iv) relating
+to the Seller and that would adversely affect the federal or any state income
+tax attributes of the Issuer, the Certificates or the Notes.
+
+(g) Valid Assignment. The Receivables and the other Purchased Assets have been
+validly assigned by NMAC to the Seller pursuant to the Purchase Agreement and
+the Receivables and the other Transferred Assets have been validly assigned by
+the Seller to the Issuer pursuant to this Agreement.
+
+(h) Accuracy of Information. The information set forth in the Schedule of
+Receivables was true and correct in all material respects as of the opening of
+business on the Cut-off Date.
+
+ 
+
+   42    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(i) No Adverse Selection. No selection procedures believed to be adverse to the
+Securityholders were used to select the Receivables and other Purchased Assets.
+
+(j) Good Title. Immediately prior to the transfer and assignment herein
+contemplated, the Seller had good and marketable title to the Receivables and
+other Transferred Assets free and clear of all Liens, and immediately upon the
+transfer thereof, the Issuer, for the benefit of the Noteholders, the
+Certificateholders, shall have good and marketable title to the Transferred
+Assets, free and clear of all Liens and adverse interests of others.
+
+(k) No Liens. Other than the security interest granted to the Issuer pursuant to
+this Agreement, the Seller has not pledged, assigned, sold, granted a security
+interest in, or otherwise conveyed any of the Receivables or other Transferred
+Assets to any other Person. The Seller has not authorized the filing of and is
+not aware of any financing statements against the Seller that include a
+description of collateral covering the Receivables or other Transferred Assets
+other than any financing statement relating to the security interest granted to
+the Issuer hereunder or a financing statement as to which the security interest
+covering the Receivables or other Transferred Assets has been released. The
+Seller is not aware of any judgment or tax lien filings against the Seller.
+
+SECTION 6.02 Compliance with Organizational Documents. The Seller agrees with
+the Certificateholders, the Note Owners and each Rating Agency that the Seller
+shall at all times comply with its organizational documents.
+
+SECTION 6.03 Liability of Seller; Indemnities. The Seller shall be liable in
+accordance herewith only to the extent of the obligations specifically
+undertaken by the Seller under this Agreement. The Seller shall indemnify,
+defend and hold harmless the Trust, the Owner Trustee and the Indenture Trustee
+(in such role and as Successor Servicer) from and against any taxes that may at
+any time be asserted against any such Person with respect to, as of the date
+hereof, the sale of the Receivables to the Issuer or the issuance and original
+sale of the Notes and the Certificates, including any sales, gross receipts,
+general corporation, tangible personal property, privilege or license taxes and
+any and all other taxes levied or assessed upon the Issuer or upon all or any
+part of the Collateral (but, in the case of the Trust, not including any taxes
+asserted with respect to ownership of the Receivables or federal or other income
+taxes arising out of the transactions contemplated by this Agreement and the
+Basic Documents) and costs and expenses in defending against the same.
+
+Indemnification under this Section 6.03 shall survive the termination of this
+Agreement and shall include reasonable fees and expenses of counsel and expenses
+of litigation (including the costs of defending any claim or bringing any claim
+to enforce the Seller’s indemnity obligations hereunder). If the Seller shall
+have made any indemnity payment to any Person entitled thereto pursuant to this
+Section 6.03 and such Person thereafter shall collect any of such amounts from
+others, such Person shall promptly repay such amounts to the Seller, without
+interest (except to the extent the recipient collects interest from others).
+
+ 
+
+   43    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Promptly after receipt by a party indemnified under this Section 6.03 (for
+purposes of this paragraph, an “Indemnified Party”) of notice of the
+commencement of any action, such Indemnified Party will, if a claim is to be
+made in respect thereof against the Seller under this Section 6.03, notify the
+Seller of the commencement thereof. If any such action is brought against any
+Indemnified Party under this Section 6.03 and it notifies the Seller of the
+commencement thereof, the Seller will assume the defense thereof, with counsel
+reasonably satisfactory to such Indemnified Party (who may, unless there is, as
+evidenced by an Opinion of Counsel to the Indemnified Party stating that there
+is, a conflict of interest, be counsel to the Seller), and the Seller will not
+be liable to such Indemnified Party under this Section 6.03 for any legal or
+other expenses subsequently incurred by such Indemnified Party in connection
+with the defense thereof, other than reasonable costs of investigation. The
+obligations set forth in this Section 6.03 shall survive the termination of this
+Agreement or the resignation or removal of the Owner Trustee or the Indenture
+Trustee (in such role and as Successor Servicer) and shall include reasonable
+fees and expenses of counsel and expenses of litigation. If the Seller shall
+have made any indemnity payments pursuant to this Section 6.03 and the Person to
+or on behalf of whom such payments are made thereafter collects any of such
+amounts from others, such Person shall promptly repay such amounts to the
+Seller, without interest (except to the extent received by such Person).
+
+The Seller’s obligations under this Section 6.03 are obligations solely of the
+Seller and will not constitute a claim against the Seller to the extent that the
+Seller does not have funds sufficient to make payment of such obligations. In
+furtherance of and not in derogation of the foregoing, the Issuer, the Servicer,
+the Indenture Trustee and the Owner Trustee, by entering into or accepting this
+Agreement, acknowledge and agree that they have no right, title or interest in
+or to the Other Assets of the Seller. To the extent that, notwithstanding the
+agreements and provisions contained in the preceding sentence, the Issuer, the
+Servicer, the Indenture Trustee or the Owner Trustee either (i) asserts an
+interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have
+any such interest, claim to, or benefit in or from Other Assets, whether by
+operation of law, legal process, pursuant to applicable provisions of insolvency
+laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code
+or any successor provision having similar effect under the Bankruptcy Code),
+then the Issuer, the Servicer, the Indenture Trustee or the Owner Trustee, as
+applicable, further acknowledges and agrees that any such interest, claim or
+benefit in or from Other Assets is and will be expressly subordinated to the
+indefeasible payment in full, which, under the terms of the relevant documents
+relating to the securitization or conveyance of such Other Assets, are entitled
+to be paid from, entitled to the benefits of, or otherwise secured by such Other
+Assets (whether or not any such entitlement or security interest is legally
+perfected or otherwise entitled to a priority of distributions or application
+under applicable law, including insolvency laws, and whether or not asserted
+against the Seller), including the payment of post-petition interest on such
+other obligations and liabilities. This subordination agreement will be deemed a
+subordination agreement within the meaning of Section 510(a) of the Bankruptcy
+Code. The Issuer, the Servicer, the Indenture Trustee and the Owner Trustee each
+further acknowledges and agrees that no adequate remedy at law exists for a
+breach of this Section 6.03 and the terms of this Section 6.03 may be enforced
+by an action for specific performance. The provisions of this Section 6.03 will
+be for the third party benefit of those entitled to rely thereon and will
+survive the termination of this Agreement.
+
+SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of,
+Seller. Subject to Section 6.02, any Person (i) into which the Seller may be
+merged or consolidated, (ii) resulting from any merger, conversion or
+consolidation to which the Seller shall be a party,
+
+ 
+
+   44    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(iii) succeeding to the business of the Seller or (iv) that is a corporation
+more than 50% of the voting stock of which is owned directly or indirectly by
+Nissan, which Person in any of the foregoing cases executes an agreement of
+assumption to perform every obligation of the Seller under this Agreement, will
+be the successor to the Seller under this Agreement without the execution or
+filing of any document or any further act on the part of any of the parties to
+this Agreement; provided, however, that (x) immediately after giving effect to
+such transaction, no representation or warranty made pursuant to Section 6.01
+shall have been breached, (y) the Seller shall have delivered to the Owner
+Trustee and the Indenture Trustee an Officer’s Certificate stating that such
+consolidation, merger or succession and such agreement or assumption comply with
+this Section 6.04 and that all conditions precedent, if any, provided for in
+this Agreement relating to such transaction have been complied with and (z) the
+Seller shall have delivered to the Owner Trustee and the Indenture Trustee an
+Opinion of Counsel either (A) stating that, in the opinion of such counsel,
+based on customary qualifications and assumptions, all financing statements and
+continuation statements and amendments thereto have been executed and filed that
+are necessary to fully perfect the interest of the Issuer and the Indenture
+Trustee, respectively, in the Receivables, and reciting the details of such
+filings, or (B) stating that, in the opinion of such counsel, no such action
+shall be necessary to preserve and protect such interest. The Seller shall
+provide notice of any merger, consolidation or succession pursuant to this
+Section 6.04 to the Servicer and the Servicer shall provide notice thereof to
+each Rating Agency.
+
+SECTION 6.05 Limitation on Liability of Seller and Others.
+
+(a) Neither the Seller nor any of the directors, officers, employees or agents
+of the Seller shall be under any liability to the Trust, the Certificateholders
+or the Noteholders, except as provided under this Agreement, for any action
+taken or for refraining from the taking of any action pursuant to this Agreement
+or for errors in judgment; provided, however, that this provision shall not
+protect the Seller or any such person against any liability that would otherwise
+be imposed by reason of willful misfeasance, bad faith or negligence in the
+performance of duties or by reason of reckless disregard of obligations and
+duties under this Agreement. The Seller and any director, officer, employee or
+agent of the Seller may rely in good faith on the advice of counsel or on any
+document of any kind, prima facie properly executed and submitted by any Person
+respecting any matters arising under this Agreement.
+
+(b) The Seller shall not be under any obligation to appear in, prosecute or
+defend any legal action that shall not be incidental to its obligations under
+this Agreement, and that in its opinion may cause it to incur any expense or
+liability; provided, however, that the Servicer may undertake any reasonable
+action that it may deem necessary or desirable in respect of this Agreement and
+the rights and duties of the parties to this Agreement and the interests of the
+Certificateholders and the Noteholders under this Agreement. In such event, the
+legal expenses and costs of such action and any liability resulting therefrom
+shall be expenses, costs and liabilities of the Servicer, and the Servicer will
+not be entitled to be reimbursed therefor.
+
+SECTION 6.06 Seller May Own Certificates or Notes. The Seller and any Affiliate
+of the Seller may in its individual or any other capacity become the owner or
+pledgee of Certificates or Notes with the same rights as it would have if it
+were not the Seller or an Affiliate thereof,
+
+ 
+
+   45    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+except as otherwise provided in the Basic Documents. Certificates or Notes so
+owned by or pledged to the Seller or such controlling or commonly controlled
+Person shall have an equal and proportionate benefit under the provisions of
+this Agreement, without preference, priority or distinction as among all of the
+Certificates or the Notes, as the case may be, except as otherwise expressly
+provided in the Basic Documents.
+
+SECTION 6.07 Sarbanes-Oxley Act Requirements. To the extent any documents are
+required to be filed or any certification is required to be made with respect to
+the Issuer or the Notes pursuant to the Sarbanes-Oxley Act, the Issuer hereby
+authorizes the Servicer and the Seller, or either of them, to prepare, sign,
+certify and file any such documents or certifications on behalf of the Issuer.
+
+ARTICLE VII.
+
+The Servicer
+
+SECTION 7.01 Representations of Servicer. The Servicer makes the following
+representations, which speak as of the Closing Date and shall survive the sale
+of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee
+pursuant to the Indenture.
+
+(a) Organization and Good Standing. The Servicer is duly organized, validly
+existing and in good standing under the laws of the state of its formation, with
+power and authority to own its properties and to conduct its business as such
+properties are currently owned and such business is presently conducted, and had
+at all relevant times, and has, power, authority and legal right to acquire,
+own, sell and service the Receivables and to hold the Receivable Files as
+custodian on behalf of the Issuer and the Indenture Trustee.
+
+(b) Due Qualification. The Servicer is duly qualified to do business as a
+foreign entity in good standing, and has obtained all necessary licenses and
+approvals in all jurisdictions in which the ownership or lease of property or
+the conduct of its business relating to the servicing of the Receivables as
+required by this Agreement shall require such qualifications and where the
+failure to so qualify would have a material adverse effect on the ability of the
+Servicer to perform its obligations under this Agreement.
+
+(c) Power and Authority. The Servicer has the power and authority to execute and
+deliver this Agreement and to carry out its terms; and the execution, delivery
+and performance of this Agreement have been duly authorized by the Servicer by
+all necessary action.
+
+(d) Binding Obligation. This Agreement constitutes a legal, valid and binding
+obligation of the Servicer enforceable in accordance with its terms, subject to
+the effect of bankruptcy, insolvency, reorganization, moratorium or other
+similar laws affecting creditors’ rights generally and by general equitable
+principles, regardless of whether such enforceability shall be considered in
+equity or law.
+
+ 
+
+   46    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(e) No Violation. The consummation of the transactions contemplated by this
+Agreement, and the fulfillment of the terms hereof, do not conflict with, result
+in any breach of any of the terms and provisions of, nor constitute (with or
+without notice or lapse of time) a default under, the articles of incorporation
+or by-laws of the Servicer, or any indenture, agreement or other instrument to
+which the Servicer is a party or by which it shall be bound; nor result in the
+creation or imposition of any Lien upon any of its properties pursuant to the
+terms of any such indenture, agreement or other instrument (other than the Basic
+Documents); nor violate any law or any order, rule or regulation applicable to
+the Servicer of any court or of any federal or state regulatory body,
+administrative agency or other governmental instrumentality having jurisdiction
+over the Servicer or its properties; which breach, default, conflict, Lien or
+violation in any case would have a material adverse effect on the ability of the
+Seller to perform its obligations under this Agreement.
+
+(f) No Proceedings. There are no proceedings or investigations pending, or, to
+the Servicer’s knowledge, threatened, before any court, regulatory body,
+administrative agency or other governmental instrumentality having jurisdiction
+over the Servicer or its properties: (i) asserting the invalidity of this
+Agreement, the Trust Agreement, the Indenture, the Purchase Agreement, the
+Certificates or the Notes; (ii) seeking to prevent the issuance of the
+Certificates or the Notes or the consummation of any of the transactions
+contemplated by this Agreement, the Trust Agreement, the Indenture or the
+Purchase Agreement; (iii) seeking any determination or ruling that would
+materially and adversely affect the performance by the Servicer of its
+obligations under, or the validity or enforceability of, this Agreement, the
+Trust Agreement, the Indenture, the Purchase Agreement, the Certificates or the
+Notes; or (iv) relating to the Servicer and that would adversely affect the
+federal or any state income tax attributes of the Certificates or the Notes.
+
+SECTION 7.02 Indemnities of Servicer. The Servicer shall be liable in accordance
+herewith only to the extent of the obligations specifically undertaken by the
+Servicer under this Agreement:
+
+(a) The Servicer shall defend, indemnify and hold harmless the Owner Trustee,
+the Indenture Trustee, and the Trust from and against any and all costs
+(including reasonable attorneys’ fees), expenses, losses, damages, claims and
+liabilities, including any legal fees and expenses incurred in connection with
+the enforcement by such Person of any indemnification or other obligation of the
+Servicer (collectively, “Damages”) arising out of or resulting from the use,
+ownership or operation by the Servicer or any of its Affiliates (other than the
+Trust) of a Financed Vehicle.
+
+(b) The Servicer shall indemnify, defend and hold harmless the Owner Trustee,
+the Indenture Trustee, and the Issuer from and against any and all Damages to
+the extent that such Damage arose out of, or was imposed upon, the Owner
+Trustee, the Indenture Trustee, and the Trust, through the negligence, willful
+misfeasance or bad faith of the Servicer in the performance of its duties under
+this Agreement or by reason of reckless disregard of its obligations and duties
+under this Agreement.
+
+Promptly after receipt by a party indemnified under this Section 7.02 (for
+purposes of this paragraph, an “Indemnified Party”) of notice of the
+commencement of any action, such Indemnified Party will, if a claim in respect
+thereof is to be made against the Servicer under this
+
+ 
+
+   47    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Section 7.02, notify the Servicer of the commencement thereof. If any such
+action is brought against any Indemnified Party under this Section 7.02 and it
+notifies the Servicer of the commencement thereof, the Servicer will assume the
+defense thereof, with counsel reasonably satisfactory to such Indemnified Party
+(who may, unless there is, as evidenced by an Opinion of Counsel to the
+Indemnified Party stating that there is, a conflict of interest, be counsel to
+the Servicer), and the Servicer will not be liable to such Indemnified Party
+under this Section 7.02 for any legal or other expenses subsequently incurred by
+such Indemnified Party in connection with the defense thereof, other than
+reasonable costs of investigation. The obligations set forth in this
+Section 7.02 shall survive the termination of this Agreement or the resignation
+or removal of the Servicer, the Owner Trustee or the Indenture Trustee and shall
+include reasonable fees and expenses of counsel and expenses of litigation. If
+the Servicer shall have made any indemnity payments pursuant to this
+Section 7.02 and the Person to or on behalf of whom such payments are made
+thereafter collects any of such amounts from others, such Person shall promptly
+repay such amounts to the Servicer, without interest (except to the extent
+received by such Person).
+
+Indemnification under this Section 7.02 by NMAC (or any successor thereto
+pursuant to Section 7.03) as Servicer, with respect to the period such Person
+was the Servicer, shall survive the termination of such Person as Servicer or a
+resignation by such Person as Servicer as well as the termination of this
+Agreement and shall include reasonable fees and expenses of counsel and expenses
+of litigation. If the Servicer shall have made any indemnity payments pursuant
+to this Section 7.02 and the recipient thereafter collects any of such amounts
+from others, the recipient shall promptly repay such amounts to the Servicer,
+without interest (except to the extent the recipient collects interest from
+others).
+
+SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of,
+Servicer. Any Person (i) into which the Servicer may be merged or consolidated,
+(ii) resulting from any merger, conversion or consolidation to which the
+Servicer shall be a party, (iii) succeeding to the business of the Servicer, or
+(iv) so long as NMAC acts as Servicer, that is a corporation more than 50% of
+the voting stock of which is owned directly or indirectly by Nissan, which
+Person in any of the foregoing cases executes an agreement of assumption to
+perform every obligation of the Servicer under this Agreement, will be the
+successor to the Servicer under this Agreement without the execution or filing
+of any paper or any further act on the part of any of the parties to this
+Agreement; provided, however, that (x) the Servicer shall have delivered to the
+Owner Trustee and the Indenture Trustee an Officer’s Certificate stating that
+such consolidation, merger or succession and such agreement of assumption comply
+with this Section 7.03 and that all conditions precedent provided for in this
+Agreement relating to such transaction have been complied with and (y) the
+Servicer shall have delivered to the Owner Trustee and the Indenture Trustee an
+Opinion of Counsel either (A) stating that, in the opinion of such counsel,
+based on customary qualifications and assumptions, all financing statements and
+continuation statements and amendments thereto have been executed and filed that
+are necessary fully to preserve and protect the interest of the Issuer and the
+Indenture Trustee in the Receivables, and reciting the details of such filings,
+or (B) stating that, in the opinion of such counsel, no such action shall be
+necessary to perfect such interest. The Servicer shall provide notice of any
+merger, consolidation or succession pursuant to this Section 7.03 to each Rating
+Agency.
+
+ 
+
+   48    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 7.04 Limitation on Liability of Servicer and Others.
+
+(a) Neither the Servicer nor any of the directors, officers, employees or agents
+of the Servicer shall be under any liability to the Trust, the
+Certificateholders or the Noteholders, or any other Person, except as expressly
+provided under this Agreement, for any action taken or for refraining from the
+taking of any action pursuant to this Agreement or for errors in judgment;
+provided, however, that this provision shall not protect the Servicer or any
+such person against any liability that would otherwise be imposed by reason of
+willful misfeasance, bad faith or negligence in the performance of duties or by
+reason of reckless disregard of obligations and duties under this Agreement. The
+Servicer and any director, officer, employee or agent of the Servicer may rely
+in good faith on the advice of counsel or on any document of any kind, prima
+facie properly executed and submitted by any Person respecting any matters
+arising under this Agreement.
+
+(b) Except as provided in this Agreement, the Servicer shall not be under any
+obligation to appear in, prosecute or defend any legal action that shall not be
+incidental to its duties to service the Receivables in accordance with this
+Agreement, and that in its opinion may cause it to incur any expense or
+liability; provided, however, that the Servicer may undertake any reasonable
+action that it may deem necessary or desirable in respect of the Basic Documents
+and the rights and duties of the parties to the Basic Documents and the
+interests of the Certificateholders under this Agreement and the Noteholders
+under the Indenture. In such event, the legal expenses and costs of such action
+and any liability resulting therefrom shall be expenses, costs and liabilities
+of the Servicer, and the Servicer will not be entitled to be reimbursed
+therefor.
+
+SECTION 7.05 NMAC Not To Resign as Servicer. Subject to the provisions of
+Section 7.03, NMAC shall not resign from the obligations and duties hereby
+imposed on it as Servicer under this Agreement except upon determination that
+the performance of its duties under this Agreement shall no longer be
+permissible under applicable law. Notice of any such determination permitting
+the resignation of NMAC shall be communicated to the Owner Trustee and the
+Indenture Trustee at the earliest practicable time (and, if such communication
+is not in writing, shall be confirmed in writing at the earliest practicable
+time), and any such determination shall be evidenced by an Opinion of Counsel to
+such effect delivered to the Owner Trustee and the Indenture Trustee
+concurrently with or promptly after such notice. No such resignation shall
+become effective until the Indenture Trustee or a Successor Servicer shall
+(i) have taken the actions required by Section 8.01 of this Agreement to effect
+the termination of the responsibilities and rights of the predecessor Servicer
+under this Agreement, including the transfer to the Successor Servicer for
+administration by it of all cash amounts that shall at the time be held by the
+predecessor Servicer for deposit, or shall thereafter be received with respect
+to a Receivable and the delivery of the Receivable Files, and the related
+accounts and records maintained by the Servicer and (ii) have assumed the
+responsibilities and obligations of NMAC as Servicer under this Agreement in
+accordance with Section 8.02 of this Agreement.
+
+ 
+
+   49    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE VIII.
+
+Default
+
+SECTION 8.01 Servicer Default. If any one of the following events (a “Servicer
+Default”) shall occur and be continuing:
+
+(a) any failure by the Servicer to deliver or cause to be delivered to the
+Relevant Trustee for deposit in any of the Accounts any required payment or to
+direct the Relevant Trustee to make any required distributions therefrom, which
+failure continues unremedied for a period of ten Business Days after (i) receipt
+by the Servicer of written notice of such failure given by the Indenture Trustee
+or Holders of Notes evidencing not less than a majority of the Outstanding
+Amount, acting together as a single class, or, if no Notes are Outstanding,
+Holders of Certificates evidencing not less than a majority of the Certificate
+Balance or (ii) discovery of such failure by an Authorized Officer of the
+Servicer;
+
+(b) any failure by the Servicer to duly observe or perform in any material
+respect any other covenants or agreements of the Servicer set forth in this
+Agreement (including its obligation to purchase Receivables pursuant to
+Section 4.06), which failure shall materially and adversely affect the rights of
+the Securityholders and shall continue unremedied for a period of 90 days after
+receipt by the Servicer of written notice of such failure given by the Indenture
+Trustee or Holders of Notes evidencing not less than a majority of the
+Outstanding Amount, acting together as a single class, or, if no Notes are
+Outstanding, Holders of Certificates evidencing not less than a majority of the
+Certificate Balance; provided, however, that a failure under this clause
+(b) that continues unremedied for a period of 150 days or less will not
+constitute a Servicer Default if such failure was caused by force majeure or
+other similar occurrence; or
+
+(c) the occurrence of an Insolvency Event with respect to the Servicer;
+
+then, and in each and every case, so long as the Servicer Default shall not have
+been remedied, either the Indenture Trustee or the Holders of Notes evidencing a
+majority of the Outstanding Amount of the Notes, acting together as a single
+Class or, if no Notes are Outstanding, Holders of Certificates evidencing not
+less than a majority of the Certificate Balance, by notice then given in writing
+to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by
+the Noteholders) and the Administrator (and the Administrator will provide
+notice thereof to each Rating Agency pursuant to Section 1(d) of the
+Administration Agreement) may terminate all of the rights and obligations (other
+than the obligations set forth in Section 7.02 hereof) of the Servicer under
+this Agreement. On or after the receipt by the Servicer of such written notice,
+all authority and power of the Servicer under this Agreement, whether with
+respect to the Notes, the Certificates or the Receivables or otherwise, shall,
+without further action, pass to and be vested in the Indenture Trustee or such
+Successor Servicer as may be appointed under Section 8.02; and, without
+limitation, the Indenture Trustee and the Owner Trustee are hereby authorized
+and empowered to execute and deliver, for the benefit of the predecessor
+Servicer, as attorney-in-fact or otherwise, any and all documents and other
+instruments, and to do or accomplish all other acts or things necessary or
+appropriate to effect the purposes of such notice of termination, whether to
+
+ 
+
+   50    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+complete the transfer and endorsement of the Receivables and related documents,
+or otherwise. The predecessor Servicer shall cooperate with the Successor
+Servicer and the Owner Trustee in effecting the termination of the
+responsibilities and rights of the predecessor Servicer under this Agreement,
+including, without limitation, the transfer to the Successor Servicer for
+administration by it of all cash amounts that shall at the time be held by the
+predecessor Servicer for deposit, or have been deposited by the predecessor
+Servicer, in the Accounts or thereafter received with respect to the Receivables
+that shall at that time be held by the predecessor Servicer and the delivery of
+the Receivable Files and the related accounts and records maintained by the
+predecessor Servicer. All reasonable costs and expenses (including attorneys’
+fees) incurred in connection with transferring the Receivable Files to the
+Successor Servicer and amending this Agreement to reflect such succession as
+Servicer pursuant to this Section 8.01 shall be paid by the predecessor Servicer
+upon presentation of reasonable documentation of such costs and expenses.
+Notwithstanding the foregoing, in the event the predecessor Servicer is the
+Indenture Trustee, the original Servicer hereunder shall reimburse the Indenture
+Trustee for all reasonable costs and expenses as described in the immediately
+preceding sentence.
+
+SECTION 8.02 Appointment of Successor.
+
+(a) Upon the Servicer’s receipt of notice of termination pursuant to
+Section 8.01 or the Servicer’s resignation in accordance with the terms of this
+Agreement, the predecessor Servicer shall continue to perform its functions as
+Servicer under this Agreement, in the case of termination, only until the date
+specified in such termination notice or, if no such date is specified in a
+notice of termination, until receipt of such notice and, in the case of
+resignation, until the earlier of (i) the date 45 days from the delivery to the
+Owner Trustee and the Indenture Trustee of written notice of such resignation
+(or written confirmation of such notice) in accordance with the terms of this
+Agreement and (ii) the date upon which the predecessor Servicer shall become
+unable to act as Servicer, as specified in the notice of resignation and
+accompanying Opinion of Counsel. In the event of the Servicer’s resignation or
+termination hereunder, the Indenture Trustee (or, if no Notes are Outstanding,
+the Issuer acting upon the direction of Holders of Certificates evidencing not
+less than a majority of the Certificate Balance) shall appoint a Successor
+Servicer, and the Successor Servicer shall accept its appointment (including its
+appointment as Administrator under the Administration Agreement as set forth in
+Section 8.02(b)) by a written assumption in form acceptable to the Owner Trustee
+and the Indenture Trustee and shall provide in writing the information
+reasonably required by the Seller to comply with its reporting obligations under
+the Exchange Act with respect to a replacement servicer. If a Successor Servicer
+has not been appointed at the time when the predecessor Servicer has ceased to
+act as Servicer in accordance with this Section 8.02, the Indenture Trustee
+without further action shall automatically be appointed the Successor Servicer
+and the Indenture Trustee shall be entitled to the Base Servicing Fee.
+Notwithstanding the above, the Indenture Trustee (or, if no Notes are
+Outstanding, the Issuer acting upon the direction of Holders of Certificates
+evidencing not less than a majority of the Certificate Balance) shall, if it is
+unwilling or legally unable so to act, appoint or petition a court of competent
+jurisdiction to appoint, and the predecessor Servicer, if no successor Servicer
+has been appointed at the time the predecessor Servicer has ceased to act, may
+petition a court of competent jurisdiction to appoint any established
+institution having a net worth of not less than $100,000,000 and whose regular
+business shall include the servicing of automobile and/or light-duty truck
+receivables, as the successor to the Servicer under this Agreement.
+
+ 
+
+   51    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) Upon appointment, the Successor Servicer (including the Indenture Trustee
+acting as Successor Servicer) shall (i) be the successor in all respects to the
+predecessor Servicer and shall be subject to all the responsibilities, duties
+and liabilities arising thereafter relating thereto placed on the predecessor
+Servicer and shall be entitled, subject to the arrangements referred to in
+paragraph (c) below, to the servicing fee and all the rights granted to the
+predecessor Servicer by the terms and provisions of this Agreement and
+(ii) become the Administrator under the Administration Agreement in accordance
+with Section 8 of such Agreement. Notwithstanding anything to the contrary
+contained herein or in the Basic Documents, if the Indenture Trustee shall act
+as Successor Servicer, it shall not, in any event, have obligations (i) to pay
+any fees, expenses and other amounts owing to the Administrator, (ii) to pay any
+indemnities owed pursuant to Section 3.05 or Section 7.02, or (iii) to
+repurchase Receivables pursuant to Section 4.06 if such repurchase obligations
+are due to the actions or omissions of the predecessor Servicer.
+
+(c) In connection with such appointment, the Issuer may make such arrangements
+for the compensation of such Successor Servicer out of payments on Receivables
+as it and such Successor Servicer shall agree; provided, however, that no such
+compensation shall be in excess of that permitted the predecessor Servicer under
+this Agreement. The Issuer, the Indenture Trustee and such Successor Servicer
+shall take such action, consistent with this Agreement, as shall be necessary to
+effectuate any such succession.
+
+SECTION 8.03 Notification . Upon any termination of, or appointment of a
+successor to, the Servicer pursuant to this Article VIII, the Owner Trustee
+shall give prompt written notice thereof to the Certificateholders and the
+Indenture Trustee shall give prompt written notice thereof to the Noteholders
+and the Asset Representations Reviewer and the Administrator (and the
+Administrator will provide notice thereof to each Rating Agency pursuant to
+Section 1(d) of the Administration Agreement).
+
+SECTION 8.04 Waiver of Past Defaults. The Holders of Notes evidencing a majority
+of the Outstanding Amount of the Notes, or, in the case of any Servicer Default
+which does not adversely affect the Indenture Trustee or the Noteholders, the
+Holders of Certificates evidencing a majority of the Certificate Balance, may,
+on behalf of all the Noteholders and the Certificateholders, waive in writing
+any default by the Servicer in the performance of its obligations hereunder and
+its consequences, except a default in making any required deposits to or
+payments from the Collection Account in accordance with this Agreement. Upon any
+such waiver of a past default, such default shall cease to exist, and any
+Servicer Default arising therefrom shall be deemed to have been remedied for
+every purpose of this Agreement. No such waiver shall extend to any subsequent
+or other default or impair any right consequent thereto.
+
+ 
+
+   52    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+ARTICLE IX.
+
+Termination; Release of Receivables
+
+SECTION 9.01 Optional Purchase of All Receivables.
+
+(a) On each Distribution Date following the last day of a Collection Period as
+of which the Pool Balance shall be less than or equal to the Optional Purchase
+Percentage multiplied by the Original Pool Balance, NMAC, as Servicer, shall
+have the option to purchase, or cause to be purchased (the “Optional Purchase”),
+the Collateral (other than the Reserve Account) for an amount equal to the
+Optional Purchase Price. To exercise such option, NMAC, as Servicer, shall
+notify the Owner Trustee and the Indenture Trustee of its intention to do so in
+writing, no later than the first Business Day of the month in which such
+purchase is to be effected and shall, no later than 5:00 p.m., New York City
+time, on the Business Day prior to the Distribution Date on which such purchase
+is to occur (such Distribution Date, the “Redemption Date”), deposit pursuant to
+Section 5.05 in the Collection Account an amount equal to the Optional Purchase
+Price (subject to Section 5.05), and shall succeed to all interests in and to
+the Collateral (other than the Reserve Account). Amounts so deposited will be
+paid and distributed as set forth in Section 5.06 of this Agreement.
+
+(b) Notice of any such purchase of the Owner Trust Estate shall be given by the
+Owner Trustee and the Indenture Trustee to each Securityholder as soon as
+practicable after their receipt of notice thereof from the Servicer. The
+Servicer shall also deliver a copy of such notice to each Rating Agency.
+
+(c) Following the satisfaction and discharge of the Indenture and the payment in
+full of the principal of and interest on the Notes, the Certificateholders will
+succeed to the rights of the Noteholders hereunder other than under Section 5.06
+and the Owner Trustee will succeed to the rights of the Indenture Trustee
+provided for in this Agreement.
+
+SECTION 9.02 Release of Receivables.
+
+(a) Upon repurchase of any Receivable by the Seller pursuant to Section 3.02 or
+by the Servicer pursuant to Section 4.06 or Section 9.01, the Issuer and the
+Indenture Trustee on behalf of the Noteholders, shall, without further action,
+be deemed to transfer, assign, set-over and otherwise convey to the Seller or
+the Servicer, as the case may be, all right, title and interest of the Issuer
+in, to and under such repurchased Receivable, all monies due or to become due
+with respect thereto and all proceeds thereof and the other property conveyed to
+the Issuer hereunder pursuant to Section 2.01 with respect to such Receivable,
+and all security and any records relating thereto, such assignment being an
+assignment outright and not for security; and the Seller or the Servicer, as
+applicable, shall thereupon own each such Receivable, and all such related
+security and records, free of any further obligation to the Issuer, the Owner
+Trustee, the Certificateholders, the Indenture Trustee or the Noteholders with
+respect thereto.
+
+ 
+
+   53    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) The Issuer and Indenture Trustee shall execute such documents and
+instruments of transfer and assignment and take such other actions as shall be
+reasonably requested by the Seller or the Servicer, as the case may be, to
+effect the conveyance of such Receivable pursuant to Sections 3.02, 4.06 and
+9.02.
+
+SECTION 9.03 Termination.
+
+(a) The respective obligations of the Seller, the Servicer, NMAC (so long as
+NMAC has rights or obligations hereunder), the Owner Trustee, and the Indenture
+Trustee, as the case may be, pursuant to this Agreement shall terminate upon the
+earliest of (i) the maturity or other liquidation of the last Receivable and the
+final disposition of all amounts received upon liquidation of any remaining
+Receivables, or (ii) the election by the Servicer to purchase the Owner Trust
+Estate as described in Section 9.01 and the payment or distribution to
+Securityholders of all amounts required to be paid to them under the Indenture
+or the Trust Agreement, as the case may be.
+
+(b) Notice of any such termination under this Section 9.03 shall be given by the
+Indenture Trustee or the Owner Trustee to each Securityholder of record as
+specified in the Indenture or the Trust Agreement, as appropriate.
+
+SECTION 9.04 Rights of the Certificateholders. Notwithstanding anything
+contained herein or in any Basic Document to the contrary, after the Notes are
+no longer Outstanding following payment in full of the principal and interest on
+the Notes and the satisfaction and discharge of the Indenture, (i) the
+Certificateholders will succeed to the rights of the Noteholders under this
+Agreement and (ii) the Owner Trustee will succeed to the rights of, but not,
+without its express consent, the obligations of the Indenture Trustee pursuant
+to this Agreement; provided, however, the Certificateholders shall not be
+entitled to any payments pursuant to Section 5.06 other than pursuant to
+Section 5.06(a)(viii) of this Agreement and 5.04(b)(6) of the Indenture.
+
+ARTICLE X.
+
+Miscellaneous
+
+SECTION 10.01 Amendment.
+
+(a) Any term or provision of this Agreement may be amended by the Seller and the
+Servicer, without the consent of the Indenture Trustee, any Noteholder, the
+Issuer, the Owner Trustee or any other Person subject to the satisfaction of one
+of the following conditions:
+
+(i) the Seller or the Servicer delivers an Officer’s Certificate or Opinion of
+Counsel to the Indenture Trustee to the effect that such amendment will not
+materially and adversely affect the interests of the Noteholders; or
+
+(ii) the Rating Agency Condition is satisfied with respect to such amendment;
+
+ 
+
+   54    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+provided, that no amendment pursuant to this Section 10 shall be effective which
+affects the rights, protections or duties of the Indenture Trustee, the Owner
+Trustee or the Asset Representations Reviewer without the prior written consent
+of such Person, (which consent shall not be unreasonably withheld or delayed);
+provided, further, that in the event that any Certificates are held by anyone
+other than the Administrator or any of its Affiliates, this Agreement may only
+be amended by the Seller and the Servicer if, in addition, (i) the Holders of
+the Certificates evidencing a majority of the Certificate Balance of the
+Certificates consent to such amendment or (ii) such amendment shall not, as
+evidenced by an Officer’s Certificate of the Administrator or an Opinion of
+Counsel delivered to the Owner Trustee, materially and adversely affect the
+interests of the Certificateholders.
+
+(b) This Agreement may also be amended by the Seller and the Servicer for the
+purpose of adding any provisions to or changing in any manner or eliminating any
+of the provisions of this Agreement or of modifying in any manner the rights of
+the Noteholders or the Certificateholders with the consent of:
+
+(i) the Holders of Notes evidencing not less than a majority of the Outstanding
+Amount of the Notes; and
+
+(ii) the Holders of the Certificates evidencing a majority of the Certificate
+Balance.
+
+It will not be necessary for the consent of Noteholders or Certificateholders to
+approve the particular form of any proposed amendment or consent, but it will be
+sufficient if such consent approves the substance thereof.
+
+(c) Promptly after the execution of any such amendment or consent, the Servicer
+shall furnish written notification of the substance of such amendment or consent
+to each Rating Agency.
+
+(d) Prior to its execution of any amendment to this Agreement, each of the Owner
+Trustee and the Indenture Trustee shall be entitled to receive and rely upon an
+Opinion of Counsel stating that the execution of such amendment is authorized or
+permitted by this Agreement. The Owner Trustee and the Indenture Trustee may,
+but shall not be obligated to, enter into any such amendment which adversely
+affects the Owner Trustee’s or the Indenture Trustee’s, as applicable, own
+rights, duties or immunities under this Agreement.
+
+SECTION 10.02 Protection of Title to Trust.
+
+(a) The Seller shall authorize and file such financing statements and cause to
+be executed and filed such continuation statements, all in such manner and in
+such places as may be required by law fully to preserve, maintain and protect
+the interest of the Issuer and of the Indenture Trustee in the Receivables and
+in the proceeds thereof. The Seller shall deliver (or cause to be delivered) to
+the Owner Trustee and the Indenture Trustee file-stamped copies of, or filing
+receipts for, any document filed as provided above, as soon as available
+following such filing.
+
+ 
+
+   55    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(b) The Seller and the Servicer shall notify the Owner Trustee and the Indenture
+Trustee within 30 days after any change of its name, identity or corporate
+structure in any manner that would, could or might make any financing statement
+or continuation statement filed in accordance with paragraph (a) above seriously
+misleading within the meaning of Section 9-507(c) of the UCC, and shall promptly
+file appropriate amendments to all previously filed financing statements or
+continuation statements.
+
+(c) The Servicer shall maintain accounts and records as to each Receivable
+accurately and in sufficient detail to permit (i) the reader thereof to know at
+any time the status of such Receivable, including payments and recoveries made
+and payments owing (and the nature of each), and (ii) reconciliation between
+payments or recoveries on (or with respect to) each Receivable and the amounts
+from time to time deposited in the Collection Account in respect of such
+Receivable.
+
+(d) The Servicer shall maintain its computer systems so that, from and after the
+time of sale under this Agreement of the Receivables to the Trust, the
+Servicer’s master computer records that refer to any Receivable shall indicate
+clearly the interest of the Issuer and the Indenture Trustee in such Receivable
+and that such Receivable is owned by the Issuer and has been pledged to the
+Indenture Trustee. The Servicer shall at all times maintain control of the
+Receivables constituting electronic chattel paper. Indication of these
+respective interests in a Receivable shall be deleted from or modified on the
+Servicer’s computer systems when, and only when, the related Receivable shall
+have become a Liquidated Receivable or been purchased by the Seller or NMAC.
+
+(e) If at any time the Seller or the Servicer shall propose to sell, grant a
+security interest in, or otherwise transfer any interest in automotive
+receivables to, any prospective purchaser, lender or other transferee, the
+Servicer shall give to such prospective purchaser, lender or other transferee
+computer tapes, records or printouts that, if they shall refer in any manner
+whatsoever to any Receivable, shall indicate clearly that such Receivable has
+been sold and is owned by the Issuer and has been pledged to the Indenture
+Trustee.
+
+SECTION 10.03 Notices. All demands, notices, communications and instructions
+upon or to the Seller, the Servicer, the Owner Trustee, the Indenture Trustee or
+the Rating Agencies under this Agreement shall be in writing, personally
+delivered, mailed by certified mail, return receipt requested, or delivered by
+telecopier or electronically by email (if an email address is provided), and
+shall be deemed to have been duly given upon receipt (a) in the case of the
+Seller, to Nissan Auto Receivables Corporation II, One Nissan Way, Franklin,
+Tennessee, 37067 (telecopier no. (615) 725-8530) (email:
+doug.gwin@nissan-usa.com), Attention: Treasurer, (b) in the case of the
+Servicer, to Nissan Motor Acceptance Corporation, One Nissan Way, Franklin,
+Tennessee, 37067 (telecopier no. (615) 725-8530) (email:
+doug.gwin@nissan-usa.com), Attention: Treasurer, (c) in the case of the Issuer
+or the Owner Trustee, to Nissan Auto Receivables 2020-A Owner Trust, c/o
+Wilmington Trust, National Association, Rodney Square North, 1100 North Market
+Street, Wilmington, Delaware 19890 (telecopier no. (302) 636-4140) (email:
+DCostello@wilmingtontrust.com), Attention: Nissan Auto Receivables 2020-A Owner
+Trust, (d) in the case of the Indenture Trustee, to U.S. Bank National
+Association, 190 South LaSalle Street, 7th Floor, Chicago, IL 60603 (telecopier
+no. (312) 332-7493) (email:
+
+ 
+
+   56    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+brian.kozack@usbank.com), Attention: NAROT 2020-A, (e) in the case of Moody’s,
+to Moody’s Investors Service, Inc., ABS Monitoring Department, 7 World Trade
+Center, 250 Greenwich Street, New York, New York 10007 (telecopier no. (212)
+553-7820) (email: ServicerReports@Moodys.com), (f) in the case of S&P, to S&P
+Global Ratings, 55 Water Street, New York, New York 10041 (email:
+servicer_reports@spglobal.com); or, as to each of the foregoing, at such other
+address as shall be designated by written notice to the other parties.
+
+All notices, requests, reports, consents or other communications required to be
+delivered to the Rating Agencies by the Servicer hereunder shall be delivered by
+the Servicer to each Rating Agency then rating the Notes; provided, however,
+that all notices, requests, reports, consents or other communications required
+to be delivered to the Rating Agencies hereunder or under any other Basic
+Document shall be deemed to be delivered if a copy of such notice, request,
+report, consent or other communication has been posted on any website maintained
+by or on behalf of NMAC pursuant to a commitment to any Rating Agency relating
+to the Notes in accordance with 17 C.F.R. 240 17g-5(a)(3).
+
+SECTION 10.04 Limitations on Rights of Others. The provisions of this Agreement
+are solely for the benefit of the Seller, the Servicer, the Issuer, the Owner
+Trustee, the Certificateholders, the Indenture Trustee, and the Noteholders and
+nothing in this Agreement, whether express or implied, shall be construed to
+give to any other Person any legal or equitable right, remedy or claim in the
+Owner Trust Estate or under or in respect of this Agreement or any covenants,
+conditions or provisions contained herein.
+
+SECTION 10.05 Severability. Any provision of this Agreement that is prohibited
+or unenforceable in any jurisdiction shall, as to such jurisdiction, be
+ineffective to the extent of such prohibition or unenforceability without
+invalidating the remaining provisions hereof, and any such prohibition or
+unenforceability in any jurisdiction shall not invalidate or render
+unenforceable such provision in any other jurisdiction.
+
+SECTION 10.06 Separate Counterparts and Electronic Signature. This Agreement may
+be executed by the parties hereto in separate counterparts, each of which when
+so executed and delivered shall be an original, but all such counterparts shall
+together constitute but one and the same instrument. Each party agrees that this
+Agreement and any other documents to be delivered in connection herewith may be
+digitally or electronically signed, and that any digital or electronic
+signatures (including pdf, facsimile or electronically imaged signatures
+provided by a digital signature provider as specified in writing to the
+Indenture Trustee) appearing on this Agreement or such other documents shall
+have the same effect as manual signatures for the purpose of validity,
+enforceability and admissibility. Other than with respect to instances in which
+manual signatures are expressly required by this paragraph, each party hereto
+shall be entitled to conclusively rely upon, and shall have no liability with
+respect to, any digital or electronic signature appearing on this Agreement or
+any other documents to be delivered in connection herewith and shall have no
+duty to investigate, confirm or otherwise verify the validity or authenticity
+thereof.
+
+SECTION 10.07 Headings. The headings of the various Articles and Sections herein
+are for convenience of reference only and shall not define or limit any of the
+terms or provisions hereof.
+
+SECTION 10.08 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
+WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
+PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
+STATE OF NEW YORK), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
+HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
+
+ 
+
+   57    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 10.09 Assignment by Issuer. The Seller hereby acknowledges and consents
+to any mortgage, pledge, assignment and grant of a security interest by the
+Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the
+Noteholders of all right, title and interest of the Issuer in, to and under the
+Receivables and the related property acquired hereunder and/or the assignment of
+any or all of the Issuer’s rights and obligations hereunder to the Indenture
+Trustee.
+
+SECTION 10.10 Nonpetition Covenant. Each party hereto agrees that, prior to the
+date which is one year and one day after payment in full of all obligations of
+each Bankruptcy Remote Party in respect of all securities issued by any
+Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy Remote
+Party to commence a voluntary winding-up or other voluntary case or other
+Proceeding seeking liquidation, reorganization or other relief with respect to
+such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or
+other similar law now or hereafter in effect in any jurisdiction or seeking the
+appointment of an administrator, a trustee, receiver, liquidator, custodian or
+other similar official with respect to such Bankruptcy Remote Party or any
+substantial part of its property or to consent to any such relief or to the
+appointment of or taking possession by any such official in an involuntary case
+or other Proceeding commenced against such Bankruptcy Remote Party, or to make a
+general assignment for the benefit of, its creditors generally, any party hereto
+or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall
+not commence, join with any other Person in commencing or institute with any
+other Person, any Proceeding against such Bankruptcy Remote Party under any
+bankruptcy, reorganization, liquidation or insolvency law or statute now or
+hereafter in effect in any jurisdiction. This Section shall survive the
+termination of this Agreement.
+
+SECTION 10.11 Limitation of Liability of Owner Trustee and Indenture Trustee.
+Notwithstanding anything contained herein to the contrary, this Agreement has
+been executed by Wilmington Trust, National Association, not in its individual
+capacity, but solely in its capacity as Owner Trustee of the Issuer, and by U.S.
+Bank National Association, not in its individual capacity, but solely in its
+capacity as Indenture Trustee under the Indenture. In no event shall Wilmington
+Trust, National Association or U.S. Bank National Association, have any
+liability for the representations, warranties, covenants, agreements or other
+obligations of the Issuer hereunder or in any of the certificates, notices or
+agreements delivered by the Seller or the Servicer, or prepared by the Seller or
+the Servicer for delivery by the Owner Trustee on behalf of the Issuer, pursuant
+hereto, as to all of which recourse shall be had solely to the assets of the
+Issuer. For all purposes of this Agreement, in the performance of its duties or
+obligations hereunder or in the performance of any duties or obligations of the
+Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the
+benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust
+Agreement.
+
+SECTION 10.12 Waivers. No failure or delay on the part of the Issuer in
+exercising any power, right or remedy under this Agreement or the Assignment
+shall operate as a waiver hereof or thereof, nor shall any single or partial
+exercise of any such power, right or remedy preclude any other or further
+exercise hereof or thereof or the exercise of any such power, right or remedy
+preclude any other or further exercise hereof or thereof or the exercise of any
+other power, right or remedy.
+
+ 
+
+   58    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 10.13 Dispute Resolution.
+
+(a) If the Seller, Issuer, an Investor, the Owner Trustee (acting at the
+direction of a Certificateholder) or the Indenture Trustee (acting at the
+direction of an Investor pursuant to Section 7.07 of the Indenture) (the
+“Requesting Party”) requests that NMAC or the Seller repurchase any Receivable
+pursuant to Section 4.3 of the Purchase Agreement or Section 3.02 hereof,
+respectively, (the party or parties requested to repurchase a receivable, the
+“Requested Party” or “Requested Parties”) and the repurchase request has not
+been fulfilled or otherwise resolved to the reasonable satisfaction of the
+Requesting Party within 180 days of the receipt of notice of the request by NMAC
+or the Seller, as applicable, the Requesting Party will have the right to refer
+the matter, at its discretion, to either mediation or arbitration pursuant to
+this Section 10.13. If the Requesting Party is the Indenture Trustee or the
+Owner Trustee, the Indenture Trustee or the Owner Trustee, as applicable, will
+follow the direction of the related Investor or Certificateholder, as
+applicable, during the mediation or arbitration. If both the Owner Trustee (on
+behalf of one or more Certificateholders) and the Indenture Trustee (on behalf
+of one or more Investors) are Requesting Parties, then the Indenture Trustee as
+Requesting Party (at the direction of the Investor that directed the Indenture
+Trustee to make the repurchase request) shall have the right to make the
+selection of mediation or arbitration.
+
+(b) The Requesting Party will provide notice in accordance with the provisions
+of Section 10.03 of its intention to refer the matter to mediation or
+arbitration, as applicable, to the Requested Parties, with a copy to the Issuer,
+the Owner Trustee and the Indenture Trustee. Each of NMAC and the Seller agree
+that such Person will participate in the resolution method selected by the
+Requesting Party to the extent such Person is a Requested Party. The Requested
+Party shall provide notice to the Seller, Issuer, the Owner Trustee, and the
+Indenture Trustee that the Requested Party has received a request to mediate or
+arbitrate a repurchase request. Upon receipt of such notice, the Depositor, the
+Issuer, the Owner Trustee and the Indenture Trustee shall advise the Requesting
+Party and Requested Party of an intent to join in the mediation or arbitration,
+which shall result in their being joined as a Requesting Party in the
+proceeding. A Requesting Party may not initiate a mediation or arbitration
+pursuant to this Section 10.13 with respect to a Receivable that is, or has
+been, the subject of an ongoing or previous mediation or arbitration (whether by
+that Requesting Party or another Requesting Party) but will have the right to
+join an existing mediation or arbitration with respect to that Receivable if the
+mediation or arbitration has not yet concluded, subject to a determination by
+the parties to the existing mediation or arbitration that such joinder would not
+prejudice the rights of the participants to such existing mediation or
+arbitration or unduly delay such proceeding.
+
+(c) If the Requesting Party selects mediation as the resolution method, the
+following provisions will apply:
+
+(i) The mediation will be administered by a nationally recognized arbitration
+and mediation association selected by the Requesting Party and conducted
+pursuant to such association’s mediation procedures in effect at such time.
+
+ 
+
+   59    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(ii) The fees and expenses of the mediation will be allocated as mutually agreed
+by the parties as part of the mediation.
+
+(iii) The mediator is required to be impartial, knowledgeable about and
+experienced with the laws of the State of New York that are relevant to the
+repurchase dispute and will be appointed from a list of neutrals maintained by
+the American Arbitration Association (the “AAA”).
+
+(d) If the Requesting Party selects arbitration as the resolution method, the
+following provisions will apply:
+
+(i) The arbitration will be administered by a nationally recognized arbitration
+and mediation association jointly selected by the parties, and if the parties
+are unable to agree on an association, by the AAA, and conducted pursuant to
+such association’s arbitration procedures in effect at such time.
+
+(ii) The arbitrator is required to be impartial, knowledgeable about and
+experienced with the laws of the State of New York that are relevant to the
+repurchase dispute and will be appointed from a list of neutrals maintained by
+AAA.
+
+(iii) The arbitrator will make its final determination no later than 90 days
+after appointment or as soon as practicable thereafter. The arbitrator will
+resolve the dispute in accordance with the terms of this Agreement, and may not
+modify or change this Agreement in any way. The arbitrator will not have the
+power to award punitive damages or consequential damages in any arbitration
+conducted by it, and the Requested Party shall not be required to pay more than
+the applicable Repurchase Amount with respect to any receivable which such
+Requested Party is required to repurchase under the terms of the Purchase
+Agreement or this Agreement, as applicable. In its final determination, the
+arbitrator will determine and award the costs of the arbitration (including the
+fees of the arbitrator, cost of any record or transcript of the arbitration, and
+administrative fees) and reasonable attorneys’ fees to the parties as determined
+by the arbitrator in its reasonable discretion. If an Asset Review was conducted
+in connection with the Receivables that are the subject of the arbitration, then
+the arbitrator will determine the party or parties required to pay the related
+Asset Reviewer Fee. The determination of the arbitrator will be in writing and
+counterpart copies will be promptly delivered to the parties. The determination
+will be final and non-appealable absent manifest error and may be enforced in
+any court of competent jurisdiction.
+
+(iv) By selecting arbitration, the Requesting Party is waiving the right to sue
+in court, including the right to a trial by jury.
+
+(v) No person may bring a putative or certified class action to arbitration.
+
+ 
+
+   60    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+(e) For the avoidance of doubt, neither the Owner Trustee nor the Indenture
+Trustee shall be responsible to evaluate the qualifications of any mediator or
+arbitrator, or for paying the costs, expenses and fees of any mediation or
+arbitration initiated by a Requesting Party in accordance with this
+Section 10.13.
+
+(f) The following provisions will apply to both mediations and arbitrations:
+
+(i) Any mediation or arbitration will be held in New York, New York or such
+other location mutually agreed to by the Requesting Party and the Requested
+Parties;
+
+(ii) Notwithstanding this dispute resolution provision, the parties will have
+the right to seek provisional relief from a competent court of law, including a
+temporary restraining order, preliminary injunction or attachment order,
+provided such relief would otherwise be available by law;
+
+(iii) The details and/or existence of any unfulfilled repurchase request, any
+meetings or discussions regarding any unfulfilled repurchase request, mediations
+or arbitration proceedings conducted under this Section 10.13, including all
+offers, promises, conduct and statements, whether oral or written, made in the
+course of the parties’ attempt to resolve an unfulfilled repurchase request, any
+information exchanged in connection with any mediation, and any discovery taken
+in connection with any arbitration (collectively, “Confidential Information”),
+shall be and remain confidential and inadmissible (except disclosures required
+by Applicable Law) for any purpose, including impeachment, in any mediation,
+arbitration or litigation, or other proceeding (including any proceeding under
+this Section 10.13) other than as required to be disclosed in accordance with
+applicable law, regulatory requirements, or court order or to the extent that
+the Requested Party, in its sole discretion, elects to disclose such
+information. Such information will be kept strictly confidential and will not be
+disclosed or discussed with any third party, except that a party may disclose
+such information to its own attorneys, experts, accountants and other agents and
+representatives (collectively “Representatives”), as reasonably required in
+connection with any resolution procedure under this Section 10.13, and the Asset
+Representations Reviewer, if an Asset Review has been conducted, if the
+disclosing Party (a) directs such Representatives to keep the information
+confidential, (b) is responsible for any disclosure by its Representatives of
+such information and (c) takes at its sole expense all reasonable measures to
+restrain such Representatives from disclosing such information. If any party
+receives a subpoena or other request for information from a third party (other
+than a governmental regulatory body) for Confidential Information, the recipient
+will promptly notify the other party and will provide the other party with the
+opportunity to object to the production of its Confidential Information or seek
+other appropriate protective remedies, consistent with the applicable
+requirements of law and regulation. If, in the absence of a protective order,
+such party or any of its representatives are compelled as a matter of law,
+regulation, legal process or by regulatory authority to disclose any portion of
+the Confidential Information, such party may disclose to the party compelling
+disclosure only the part of such Confidential Information that is required to be
+disclosed.
+
+ 
+
+   61    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+SECTION 10.14 Cooperation with Voting. Each of NMAC, the Seller and the Issuer
+hereby acknowledges and agrees that it shall reasonably cooperate with the
+Indenture Trustee to facilitate any vote by the Instituting Noteholders pursuant
+to terms of Section 7.08 of the Indenture.
+
+[Signature Page Follows]
+
+ 
+
+   62    (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
+executed by their respective officers as of the day and year first above
+written.
+
+ 
+
+NISSAN AUTO RECEIVABLES 2020-A
+
+OWNER TRUST
+
+By:   WILMINGTON TRUST, NATIONAL ASSOCIATION,   not in its individual capacity
+but solely as   Owner Trustee on behalf of the Trust By:  
+
+/s/ Dorri Costello
+
+  Name: Dorri Costello   Title: Vice President NISSAN AUTO RECEIVABLES
+CORPORATION II, as Seller By:  
+
+/s/ Victor Pausin
+
+  Name: Victor Pausin   Title: Treasurer NISSAN MOTOR ACCEPTANCE CORPORATION,
+individually and as Servicer By:  
+
+/s/ Kevin J. Cullum
+
+  Name: Kevin J. Cullum   Title: President
+
+U.S. BANK NATIONAL ASSOCIATION, not in
+
+its individual capacity but
+
+solely as Indenture Trustee
+
+By:  
+
+/s/ Brian Kozack
+
+  Name: Brian Kozack   Title: Vice President
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+Schedule I
+
+REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE RECEIVABLES
+
+ 
+
+  (a)
+
+Characteristics of Receivables. Such Receivable
+
+ 
+
+  a.
+
+has been originated in the United States of America by a Dealer for the retail
+sale of a Financed Vehicle, has been fully and properly executed or
+authenticated by the parties thereto, and has been validly assigned by such
+Dealer to NMAC,
+
+ 
+
+  b.
+
+created a valid and enforceable security interest in favor of NMAC in such
+Financed Vehicle,
+
+ 
+
+  c.
+
+contains provisions that entitle the holder thereof to realize on the collateral
+as security,
+
+ 
+
+  d.
+
+provides for level monthly payments that fully amortize the Amount Financed over
+an original term of no greater than 75 payments, except that (i) the payment
+amount in the first or last month in the life of the Receivable may be minimally
+different from the level payment amount and (ii) the initial payment on such
+Receivable may have been deferred for up to 92 days, and
+
+ 
+
+  e.
+
+provides for interest at the related APR.
+
+ 
+
+  (b)
+
+Compliance with Law. Such Receivable complied at the time it was originated or
+made with all requirements of applicable federal, state and local laws, and
+regulations thereunder.
+
+ 
+
+  (c)
+
+Binding Obligation. Such Receivable represents the legal, valid and binding
+payment obligation in writing of the related Obligor, enforceable by the holder
+thereof in accordance with its terms subject to (i) the effect of bankruptcy,
+insolvency, reorganization, moratorium or other similar laws affecting
+creditors’ rights generally, (ii) the effect of general equitable principles and
+(iii) the potential unenforceability of waivers of jury trial provisions in
+certain states.
+
+ 
+
+  (d)
+
+Security Interest in Financed Vehicle. Immediately prior to the sale, assignment
+and transfer thereof to the Issuer, such Receivable was secured by a validly
+perfected first priority security interest in the Financed Vehicle in favor of
+NMAC as secured party or all necessary and appropriate actions shall have been
+commenced that would result in the valid perfection of a first priority security
+interest in the Financed Vehicle in favor of NMAC as secured party.
+
+ 
+
+  (e)
+
+Repossession. As of the Cut-off Date, according to the records of NMAC, the
+Financed Vehicle related to such Receivable has not been repossessed and the
+possession thereof not reinstated.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+  (f)
+
+Receivables in Force. The records of the Servicer do not reflect that such
+Receivable has been satisfied, subordinated or rescinded, nor that any Financed
+Vehicle has been released from the lien granted by the related Receivable in
+whole or in part.
+
+ 
+
+  (g)
+
+No Waiver. No provision of the Receivable has been waived in a manner that is
+prohibited by the provisions of Section 4.01.
+
+ 
+
+  (h)
+
+No Defenses. The records of the Servicer do not reflect that such Receivable is
+subject to any asserted or threatened right of rescission, setoff, counterclaim
+or defense.
+
+ 
+
+  (i)
+
+No Default. The records of the Servicer reflect that, except for payment
+defaults continuing for a period of not more than 29 days as of the Cut-off
+Date, no default, breach, violation or event permitting acceleration under the
+terms of such Receivable has occurred.
+
+ 
+
+  (j)
+
+Insurance. The Obligor is required under the terms of the related Receivable to
+maintain physical damage insurance covering the Financed Vehicle.
+
+ 
+
+  (k)
+
+Certificate of Title. The Receivable File related to such Receivable contains
+the original Certificate of Title (or a photocopy or image thereof) or evidence
+that an application for a Certificate of Title has been filed.
+
+ 
+
+  (l)
+
+Lawful Assignment. Such Receivable has not been originated in, or shall be
+subject to the laws of, any jurisdiction under which the sale, transfer and
+assignment of such Receivable under this Agreement are unlawful, void or
+voidable.
+
+ 
+
+  (m)
+
+Chattel Paper. Such Receivable constitutes either “tangible chattel paper” or
+“electronic chattel paper” as such terms are defined in the UCC.
+
+ 
+
+  (n)
+
+Simple Interest Receivables. Such Receivable is a Simple Interest Receivable.
+
+ 
+
+  (o)
+
+APR. The Annual Percentage Rate of such Receivable ranges from 0.00% to 11.83%.
+
+ 
+
+  (p)
+
+Maturity. As of the Cut-off Date, such Receivable had a remaining term to
+maturity of not less than 3 payments and not greater than 73 payments.
+
+ 
+
+  (q)
+
+First Payment. As of the Cut-off Date, the related Obligor has made the initial
+payment on such Receivable.
+
+ 
+
+  (r)
+
+Balance. Such Receivable had an original Principal Balance of not more than
+$84,932.38 and, as of the Cut-off Date, had a Principal Balance of not less than
+$1,999.58 and not more than $81,510.89.
+
+ 
+
+  (s)
+
+Delinquency. Such Receivable was not more than 29 days past due as of the
+Cut-off Date, and such Receivable has not been extended by more than two months.
+
+ 
+
+  (t)
+
+Bankruptcy. The records of the Servicer do not reflect that the related Obligor
+was the subject of a bankruptcy proceeding as of the Cut-off Date.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+
+
+
+--------------------------------------------------------------------------------
+
+  (u)
+
+Origination. Such Receivable has an origination date on or after March 12, 2014.
+
+ 
+
+  (v)
+
+Receivable Files. There is only one original executed copy of each “tangible
+record” constituting or forming a part of such Receivable that is tangible
+chattel paper and a single “authoritative copy” (as such term is used in
+Section 9-105 of the UCC) of each electronic record constituting or forming a
+part of such Receivable that is electronic chattel paper. The Receivable Files
+that constitute or evidence such Receivable do not have any marks or notations
+indicating that they have been pledged, assigned or otherwise conveyed by the
+Seller to any Person other than the Issuer.
+
+ 
+
+  (w)
+
+Forced-Placed Insurance Premiums. No contract relating to such Receivable has
+had forced-placed insurance premiums added to the amount financed.
+
+ 
+
+  (x)
+
+No Government Obligors. Such receivable shall not be due from the United States
+or any state, or from any agency, department subdivision or instrumentality
+thereof.
+
+ 
+
+      (NAROT 2020-A Sale and Servicing Agreement)
+Certain information has been excluded from this agreement (indicated by “[***]”)
+because such information (i) is not material and (ii) would be competitively
+harmful if publicly disclosed.
+
+ 
+
+EXHIBIT 10.2
+
+MEZZANINE
+LOAN AND SECURITY AGREEMENT
+
+THIS MEZZANINE LOAN AND SECURITY AGREEMENT (this “Agreement”) dated as of March
+10, 2020 (the “Effective Date”) among (a) SILICON VALLEY BANK, a California
+corporation (“SVB”), in its capacity as administrative agent and collateral
+agent (“Agent”), (b) SILICON VALLEY BANK, a California corporation (“SVB”), as a
+lender, (c) WESTRIVER INNOVATION LENDING FUND VIII, L.P., a Delaware limited
+partnership (“WestRiver”), as a lender (SVB and WestRiver and each of the other
+“Lenders” from time to time a party hereto are referred to herein collectively
+as the “Lenders” and each individually as a “Lender”), and (d) VERRICA
+PHARMACEUTICALS INC., a Delaware corporation (“Borrower”), provides the terms on
+which Agent and the Lenders shall lend to Borrower and Borrower shall repay
+Agent and the Lenders.  The parties agree as follows:
+
+1ACCOUNTING AND OTHER TERMS
+
+Accounting terms not defined in this Agreement shall be construed following
+GAAP. Calculations and determinations must be made following GAAP; provided that
+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 Borrower or
+Agent shall so request, Borrower and Agent shall negotiate in good faith to
+amend such ratio or requirement to preserve the original intent thereof in light
+of such change in GAAP; provided further, that until so amended, (a) such ratio
+or requirement shall continue to be computed in accordance with GAAP prior to
+such change therein and (b) Borrower shall provide Agent with 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.
+In addition, no effect shall be given to Accounting Standards Codification 842,
+Leases (or any other Accounting Standards Codification having similar result or
+effect) (and related interpretations) to the extent any lease (or similar
+arrangement) would be required to be treated as a capital lease thereunder where
+such lease (or arrangement) would have been treated as an operating lease under
+GAAP as in effect immediately prior to the effectiveness of such Accounting
+Standards Codification. Notwithstanding the foregoing, all financial covenant
+and other financial calculations shall be computed with respect to Borrower
+only, and not on a consolidated basis.  Capitalized terms not otherwise defined
+in this Agreement shall have the meanings set forth in Section 14 of this
+Agreement. All other terms contained in this Agreement, unless otherwise
+indicated, shall have the meaning provided by the Code to the extent such terms
+are defined therein.
+
+2LOAN AND TERMS OF PAYMENT
+
+2.1Promise to Pay.  Borrower hereby unconditionally promises to pay to Agent,
+for the ratable benefit of each Lender, the outstanding principal amount of all
+Credit Extensions advanced to Borrower by such Lender and accrued and unpaid
+interest thereon, together with any fees as and when due in accordance with this
+Agreement.
+
+2.1.1Term Loan Advances
+
+(a)Availability.  Subject to the terms and conditions of this Agreement, upon
+Borrower’s request, the Lenders, severally and not jointly, shall make one (1)
+term loan advance to Borrower on or about the Effective Date in an original
+principal amount of Thirty-Five Million Dollars ($35,000,000.00) according to
+each Lender’s Term Loan Commitment as set forth on Schedule 1 hereto (the “Term
+A Loan Advance”).  Subject to the terms and conditions of this Agreement, upon
+Borrower’s request, during the Draw Period, the Lenders, severally and not
+jointly, shall make one (1) term loan advance available to Borrower in an
+original principal amount of Fifteen Million Dollars ($15,000,000.00) according
+to each Lender’s Term Loan Commitment as set forth on Schedule 1 hereto (the
+“Term B Loan Advance”). The Term A Loan Advance and the Term B Loan Advance are
+hereinafter referred to singly as a “Term Loan Advance” and collectively as the
+“Term Loan Advances”. After repayment, no Term Loan Advance (or any portion
+thereof) may be reborrowed.
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(b)Interest Period.  Commencing on the first (1st) Payment Date of the month
+following the month in which the Funding Date of the applicable Term Loan
+Advance occurs, and continuing on the Payment Date of each month thereafter,
+Borrower shall make monthly payments of interest to Agent, for the account of
+the Lenders, in arrears, on the principal amount of each Term Loan Advance, at
+the rate set forth in Section 2.2 (a).
+
+(c)Repayment.  Commencing on the Term Loan Amortization Date and continuing on
+each Payment Date thereafter, Borrower shall repay the aggregate outstanding
+Term Loan Advances to Agent, for the account of the Lenders, in (i) consecutive
+equal monthly installments of principal based on the applicable Repayment
+Schedule, plus (ii) monthly payments of accrued interest at the rate set forth
+in Section 2.2(a). All outstanding principal and accrued and unpaid interest
+with respect to the Term Loan Advances, and all other outstanding Obligations
+under the Term Loan Advances, are due and payable in full on the Term Loan
+Maturity Date.
+
+(d)Permitted Prepayment.  Borrower shall have the option to prepay all or a
+portion of the Term Loan Advances advanced by the Lenders under this Agreement,
+provided that such partial prepayments shall be in increments of at least One
+Million Dollars ($1,000,000.00), and provided further that Borrower (i) delivers
+written notice to Agent of its election to prepay all or such portion of the
+Term Loan Advances at least five (5) Business Days prior to such prepayment, and
+(ii) pays to Agent, for the account of the Lenders in accordance with its
+respective Pro Rata Share, on the date of such prepayment (A) the outstanding
+principal plus accrued and unpaid interest with respect to the Term Loan
+Advances, (B) the Final Payment, (C) the Prepayment Premium with respect to the
+amount of such prepaid portion of the Term Loan Advances, and (D) all other
+sums, if any, that shall have become due and payable with respect to the Term
+Loan Advances, including Lenders’ Expenses and interest at the Default Rate with
+respect to any past due amounts. Any of payments of principal with respect to
+the Term Loan Advances made under this Section 2.1.1(d) will be applied to the
+principal balance of the Term Loan Advances in the inverse order of maturity.
+
+(e)Mandatory Prepayment Upon an Acceleration.  If the Term Loan Advances are
+accelerated by Agent, following the occurrence of an Event of Default, Borrower
+shall immediately pay to Agent, for the account of the Lenders in accordance
+with its respective Pro Rata Share, an amount equal to the sum of (i) all
+outstanding principal plus accrued and unpaid interest with respect to the Term
+Loan Advances, (ii) the Final Payment, (iii) the Prepayment Premium, and (iv)
+all other sums, if any, that shall have become due and payable with respect to
+the Term Loan Advances, including Lenders’ Expenses and interest at the Default
+Rate with respect to any past due amounts.
+
+2.2Payment of Interest on the Credit Extensions.
+
+(a)Interest Rate.  Subject to Section 2.2(b), the principal amount outstanding
+under each Term Loan Advance shall accrue interest at a floating per annum rate
+equal to the greater of (i) seven and one-quarter of one percent (7.25%) and
+(ii) two and one-half of one percent (2.50%) above the Prime Rate, which
+interest, in each case, shall be payable monthly in accordance with Section
+2.2(d) below.
+
+(b)Default Rate.  Immediately upon the occurrence and during the continuance of
+an Event of Default, Obligations shall bear interest at a rate per annum which
+is four percent (4.0%) above the rate that is otherwise applicable thereto (the
+“Default Rate”).  Fees and expenses which are required to be paid by Borrower
+pursuant to the Loan Documents (including, without limitation, Lenders’
+Expenses) but are not paid when due shall bear interest until paid at a rate
+equal to the highest rate applicable to the Obligations.  Payment or acceptance
+of the increased interest rate provided in this Section 2.2(b) is not a
+permitted alternative to timely payment and shall not constitute a waiver of any
+Event of Default or otherwise prejudice or limit any rights or remedies of Agent
+or any Lender.
+
+(c)Adjustment to Interest Rate.  Changes to the interest rate of any Credit
+Extension based on changes to the Prime Rate shall be effective on the effective
+date of any change to the Prime Rate and to the extent of any such change.
+
+(d)Payment; Interest Computation.  Interest is payable monthly on the Payment
+Date of each month and shall be computed on the basis of a 360-day year for the
+actual number of days elapsed.  In computing interest, (i) all payments received
+after 12:00 p.m. Eastern time on any day shall be deemed received at the opening
+of business on the next Business Day, and (ii) the date of the making of any
+Credit Extension shall be included and the date of payment shall be excluded;
+provided, however, that if any Credit Extension is repaid on the same day on
+which it is made, such day shall be included in computing interest on such
+Credit Extension.
+
+-2-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+2.3Fees.  Borrower shall pay to Agent:  
+
+(a)Commitment Fee.  A fully earned, non-refundable commitment fee of Five
+Hundred Thousand Dollars ($500,000.00), payable on the Effective Date, to be
+shared between the Lenders pursuant to their respective Term Loan Commitment
+Percentages;
+
+(b)Final Payment.  The Final Payment, when due hereunder, to be shared between
+the Lenders pursuant to their respective Term Loan Commitment Percentages;
+
+(c)Prepayment Premium.  The Prepayment Premium, when due hereunder, to be shared
+between the Lenders pursuant to their respective Term Loan Commitment
+Percentages; and
+
+(d)Lenders’ Expenses.  All Lenders’ Expenses (including reasonable attorneys’
+fees and expenses for documentation and negotiation of this Agreement) incurred
+through and after the Effective Date, when due (or, if no stated due date, upon
+demand by Agent).
+
+Unless otherwise provided in this Agreement or in a separate writing by Agent,
+Borrower shall not be entitled to any credit, rebate, or repayment of any fees
+earned by Agent or any Lender pursuant to this Agreement notwithstanding any
+termination of this Agreement or the suspension or termination of any Lender’s
+obligation to make loans and advances hereunder.  Agent may deduct amounts owing
+by Borrower under the clauses of this Section 2.3 pursuant to the terms of
+Section 2.4(e).  Agent shall provide Borrower written notice of deductions made
+from the Designated Deposit Account pursuant to the terms of the clauses of this
+Section 2.3.
+
+2.4Payments; Pro Rata Treatment; Application of Payments; Debit of Accounts.  
+
+(a)All payments (including prepayments) to be made by Borrower under any Loan
+Document shall be made to Agent for the account of Lenders, in immediately
+available funds in Dollars, without setoff or counterclaim, before 12:00 p.m.
+Eastern time on the date when due.   Agent shall distribute such payments to
+Lenders in like funds as set forth in Section 2.5.  Payments of principal and/or
+interest received after 12:00 p.m. Eastern time are considered received at the
+opening of business on the next Business Day. When a payment is due on a day
+that is not a Business Day, the payment shall be due the next Business Day, and
+additional fees or interest, as applicable, shall continue to accrue until paid.
+
+(b)Each borrowing by Borrower from Lenders hereunder shall be made according to
+the respective Term Loan Commitment Percentages of the relevant Lenders.
+
+(c)Except as otherwise provided herein, each payment (including each prepayment)
+by Borrower on account of principal or interest on the Term Loan Advances shall
+be applied according to each Lender’s Pro Rata Share of the outstanding
+principal amount of the Term Loan Advances.  The amount of each principal
+prepayment of the Term Loan Advances shall be applied to reduce the then
+remaining installments of the Term Loan Advances based upon each Pro Rata Share
+of Term Loan Advances.
+
+(d)Agent has the exclusive right to determine the order and manner in which all
+payments with respect to the Obligations may be applied.  Borrower shall have no
+right to specify the order or the accounts to which Agent shall allocate or
+apply any payments required to be made by Borrower to Agent or otherwise
+received by Agent or any Lender under this Agreement when any such allocation or
+application is not specified elsewhere in this Agreement.
+
+(e)Agent may debit any of Borrower’s deposit accounts, including the Designated
+Deposit Account, for principal and interest payments or any other amounts
+Borrower owes Agent or any Lender when due. These debits shall not constitute a
+set-off.
+
+(f)Unless Agent shall have been notified in writing by Borrower prior to the
+date of any payment due to be made by Borrower hereunder that Borrower will not
+make such payment to Agent, Agent may assume that Borrower is making such
+payment, and Agent may, but shall not be required to, in reliance upon such
+
+-3-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+assumption, make available to Lenders their respective Pro Rata Share of a
+corresponding payment amount.  If such payment is not made to Agent by Borrower
+within three (3) Business Days after such due date, Agent shall be entitled to
+recover, on demand, from each Lender to which any amount which was made
+available pursuant to the preceding sentence, such amount with interest thereon
+at the rate per annum equal to the daily average Federal Funds Effective
+Rate.  Nothing herein shall be deemed to limit the rights of Agent or any Lender
+against Borrower.
+
+2.5Settlement Procedures.  If Agent receives any payment for the account of
+Lenders on or prior to 12:00 p.m. (Eastern time) on any Business Day, Agent
+shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment
+on such Business Day. If Agent receives any payment for the account of Lenders
+after 12:00 p.m. (Eastern time) on any Business Day, Agent shall pay to each
+applicable Lender such Lender’s Pro Rata Share of such payment on the next
+Business Day.  
+
+2.6Withholding by Borrower.  Payments received by Agent from Borrower under this
+Agreement will be made free and clear of and without deduction for any and all
+present or future taxes, levies, imposts, duties, deductions, withholdings,
+assessments, fees or other charges imposed by any Governmental Authority
+(including any interest, additions to tax or penalties applicable
+thereto).  Specifically, however, if at any time any Governmental Authority,
+applicable law, regulation or international agreement requires Borrower to make
+any withholding or deduction from any such payment or other sum payable
+hereunder to Agent, Borrower hereby covenants and agrees that the amount due
+from Borrower with respect to such payment or other sum payable hereunder will
+be increased to the extent necessary to ensure that, after the making of such
+required withholding or deduction, Agent receives a net sum equal to the sum
+which it would have received had no withholding or deduction been required, and
+Borrower shall pay the full amount withheld or deducted to the relevant
+Governmental Authority.  Borrower will, upon request, furnish Agent with proof
+reasonably satisfactory to Agent indicating that Borrower has made such
+withholding payment; provided, however, that Borrower need not make any
+withholding payment if the amount or validity of such withholding payment is
+contested in good faith by appropriate and timely proceedings and as to which
+payment in full is bonded or reserved against by Borrower.  The agreements and
+obligations of Borrower contained in this Section 2.6 shall survive the
+termination of this Agreement.
+
+ 
+
+3CONDITIONS OF LOANS
+
+3.1Conditions Precedent to Initial Credit Extension.  Each Lender’s obligation
+to make the initial Credit Extension hereunder is subject to the condition
+precedent that Agent shall have received, in form and substance satisfactory to
+Agent and the Lenders, such documents, and completion of such other matters, as
+Agent may reasonably deem necessary or appropriate, including, without
+limitation:
+
+(a)duly executed Senior Loan Documents and satisfaction of all conditions
+precedent therein;
+
+(b)duly executed signatures to the Loan Documents;
+
+(c)the Operating Documents and a long-form good standing certificate of Borrower
+certified by the Secretary of State of Delaware and each other state in which
+Borrower is qualified to conduct business, each as of a date no earlier than
+thirty (30) days prior to the Effective Date;
+
+(d)duly executed signatures to the secretary’s corporate borrowing certificate
+of Borrower with respect to such Borrower’s Operating Documents, incumbency,
+specimen signatures and resolutions authorizing the execution and delivery of
+this Agreement and the other Loan Documents to which it is a party;
+
+(e)duly executed signatures to the completed Borrowing Resolutions for Borrower;
+
+(f)certified copies, dated as of a recent date, of financing statement searches,
+as Agent may request, accompanied by written evidence (including any UCC
+termination statements) that the Liens indicated in any such financing
+statements either constitute Permitted Liens or have been or, in connection with
+the initial Credit Extension, will be terminated or released;
+
+-4-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(g)the Perfection Certificate of Borrower, together with the duly executed
+signatures thereto; and
+
+(h)payment of the fees and Lenders’ Expenses then due as specified in Section
+2.3 hereof.
+
+3.2Conditions Precedent to all Credit Extensions.  Each Lender’s obligation to
+make each Credit Extension, including the initial Credit Extension, is subject
+to the following conditions precedent:
+
+(a)timely receipt by the Lenders of (i) an executed Disbursement Letter and (ii)
+an executed Payment/Advance Form and any materials and documents required by
+Section 3.4;  
+
+(b)the representations and warranties in this Agreement shall be true, accurate,
+and complete in all material respects on the date of the Disbursement Letter
+(and the Payment/Advance Form) and on the Funding Date of each Credit Extension;
+provided, however, that such materiality qualifier shall not be applicable to
+any representations and warranties that already are qualified or modified by
+materiality in the text thereof; and provided, further that those
+representations and warranties expressly referring to a specific date shall be
+true, accurate and complete in all material respects as of such date, and no
+Event of Default shall have occurred and be continuing or result from the Credit
+Extension.  Each Credit Extension is Borrower’s representation and warranty on
+that date that the representations and warranties in this Agreement remain true,
+accurate, and complete in all material respects; provided, however, that such
+materiality qualifier shall not be applicable to any representations and
+warranties that already are qualified or modified by materiality in the text
+thereof; and provided, further that those representations and warranties
+expressly referring to a specific date shall be true, accurate and complete in
+all material respects as of such date; and
+
+(c)Agent and each Lender determine to its reasonable satisfaction that there has
+not been any material impairment in the general affairs, management, results of
+operation, financial condition or the prospect of repayment of the Obligations,
+nor any material adverse deviation by Borrower from the most recent business
+plan of Borrower presented to and accepted by Agent and the Lenders.
+
+3.3Covenant to Deliver. Borrower agrees to deliver to Agent and each Lender each
+item required to be delivered to Agent and each Lender under this Agreement as a
+condition precedent to any Credit Extension.  Borrower expressly agrees that a
+Credit Extension made prior to the receipt by Agent and each Lender of any such
+item shall not constitute a waiver by Agent or Lenders of Borrower’s obligation
+to deliver such item, and the making of any Credit Extension in the absence of a
+required item shall be in each Lender’s sole discretion.
+
+3.4Procedures for Borrowing.  
+
+(a)Term Loan Advances.  Subject to the prior satisfaction of all other
+applicable conditions to the making of a Credit Extension set forth in this
+Agreement, to obtain a Credit Extension, Borrower shall notify Agent (which
+notice shall be irrevocable) by electronic mail, facsimile, or telephone by
+12:00 p.m. Eastern time at least five (5) Business Days before the proposed
+Funding Date of such Credit Extension.  Together with any such electronic or
+facsimile notification, Borrower shall deliver to Agent by electronic mail or
+facsimile a completed Disbursement Letter (and Payment/Advance Form) executed by
+an Authorized Signer.  Agent may rely on any telephone notice given by a person
+whom Agent believes is an Authorized Signer.  On the Funding Date, Agent shall
+credit the Credit Extensions to the Designated Deposit Account.  Agent may make
+Credit Extensions under this Agreement based on instructions from an Authorized
+Signer or without instructions if the Credit Extensions are necessary to meet
+Obligations which have become due.
+
+(b)Funding.  In determining compliance with any condition hereunder to the
+making of a Credit Extension that, by its terms, must be fulfilled to the
+satisfaction of a Lender, Agent may presume that such condition is satisfactory
+to such Lender unless Agent shall have received notice to the contrary from such
+Lender prior to the making of such Credit Extension.  Unless Agent shall have
+been notified in writing by any Lender prior to the date of any Credit
+Extension, that such Lender will not make the amount that would constitute its
+share of such borrowing available to Agent, Agent may assume that such Lender is
+making such amount available to Agent, and Agent may, in reliance upon such
+assumption, make available to Borrower a corresponding amount.  If such amount
+
+-5-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+is not made available to Agent by the required time on the Funding Date
+therefor, such Lender shall pay to Agent, on demand, such amount with interest
+thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate
+or (ii) a rate determined by Agent in accordance with banking industry rules on
+interbank compensation, for the period until such Lender makes such amount
+immediately available to Agent.  If such Lender’s share of such Credit Extension
+is not made available to Agent by such Lender within three (3) Business Days
+after such Funding Date, Agent shall also be entitled to recover such amount
+with interest thereon at the rate per annum applicable to the Term Loan
+Advances, on demand, from Borrower.
+
+4CREATION OF SECURITY INTEREST
+
+4.1Grant of Security Interest.  Borrower hereby grants Agent, for the ratable
+benefit of the Lenders, to secure the payment and performance in full of all of
+the Obligations, a continuing security interest in, and pledges to Agent, for
+the ratable benefit of the Lenders, the Collateral, wherever located, whether
+now owned or hereafter acquired or arising, and all proceeds and products
+thereof.  For clarity, any reference to “Agent’s Lien” or any granting of
+collateral to Agent in this Agreement or any Loan Document means the Lien
+granted to Agent for the ratable benefit of the Lenders.
+
+ 
+
+If this Agreement is terminated, Agent’s Lien in the Collateral shall continue
+until the Obligations (other than inchoate indemnity obligations) are repaid in
+full in cash.  Upon payment in full in cash of the Obligations (other than
+inchoate indemnity obligations) and at such time as the Lenders’ obligation to
+make Credit Extensions has terminated, Agent shall, at the sole cost and expense
+of Borrower, release its Liens in the Collateral and all rights therein shall
+revert to Borrower. Agent’s Lien in the assets of Borrower securing the
+Obligations of Borrower to Lenders under this Agreement shall be junior and
+subordinated to SVB’s security interest in the assets of Borrower securing the
+Obligations of Borrower to SVB under the Senior Loan Agreement.
+
+4.2Priority of Security Interest.  Borrower represents, warrants, and covenants
+that the security interests granted herein are and shall at all times continue
+to be a first priority perfected security interests in the Collateral (subject
+only to Permitted Liens that are permitted pursuant to the terms of this
+Agreement to have superior priority to Agent’s Lien under this Agreement).  If
+Borrower shall acquire a commercial tort claim, Borrower shall promptly notify
+Agent in a writing signed by Borrower of the general details thereof and grant
+to Agent, for the ratable benefit of the Lenders, in such writing a security
+interest therein and in the proceeds thereof, all upon the terms of this
+Agreement, with such writing to be in form and substance reasonably satisfactory
+to Agent.
+
+4.3Authorization to File Financing Statements.  Borrower hereby authorizes
+Agent, on behalf of the Lenders, to file financing statements, without notice to
+Borrower, with all appropriate jurisdictions to perfect or protect Agent’s and
+Lenders’ interest or rights hereunder, including a notice that any disposition
+of the Collateral, by Borrower or any other Person, shall be deemed to violate
+the rights of Agent under the Code.  Such financing statements may indicate the
+Collateral as “all assets of the Debtor” or words of similar effect, or as being
+of an equal or lesser scope, or with greater detail, all in Agent’s discretion.
+
+5REPRESENTATIONS AND WARRANTIES
+
+Borrower represents and warrants as follows:
+
+5.1Due Organization, Authorization; Power and Authority.  Borrower is duly
+existing and in good standing as a Registered Organization in its jurisdiction
+of formation and is qualified and licensed to do business and is in good
+standing in any jurisdiction in which the conduct of its business or its
+ownership of property requires that it be qualified except where the failure to
+do so could not reasonably be expected to have a material adverse effect on
+Borrower’s business. In connection with this Agreement, Borrower has delivered
+to Agent and each Lender a completed certificate signed by Borrower, entitled
+“Perfection Certificate” (the “Perfection Certificate”).  Borrower represents
+and warrants to Agent and each Lender that: (a) Borrower’s exact legal name is
+that indicated on the Perfection Certificate and on the signature page hereof;
+(b) Borrower is an organization of the type and is organized in the jurisdiction
+set forth in the Perfection Certificate; (c) the Perfection Certificate
+accurately sets forth Borrower’s organizational identification number or
+accurately states that Borrower has none; (d) the Perfection Certificate
+accurately sets forth Borrower’s place of business, or, if more than one, its
+chief executive office as well as Borrower’s mailing address (if different than
+its chief executive office); (e) Borrower (and each of its predecessors) has
+not, in the
+
+-6-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+past five (5) years, changed its jurisdiction of formation, organizational
+structure or type, or any organizational number assigned by its jurisdiction;
+and (f) all other information set forth on the Perfection Certificate pertaining
+to Borrower and each of its Subsidiaries is accurate and complete in all
+material respects (it being understood and agreed that Borrower may from time to
+time update certain information in the Perfection Certificate after the
+Effective Date to the extent permitted by one or more specific provisions in
+this Agreement).  If Borrower is not now a Registered Organization but later
+becomes one, Borrower shall promptly notify Agent of such occurrence and provide
+Agent with Borrower’s organizational identification number.
+
+The execution, delivery and performance by Borrower of the Loan Documents to
+which it is a party have been duly authorized, and do not (i) conflict with any
+of Borrower’s organizational documents, (ii) contravene, conflict with,
+constitute a default under or violate any material Requirement of Law, (iii)
+contravene, conflict or violate any applicable order, writ, judgment,
+injunction, decree, determination or award of any Governmental Authority by
+which Borrower or any of its Subsidiaries or any of their property or assets may
+be bound or affected, (iv) require any action by, filing, registration, or
+qualification with, or Governmental Approval from, any Governmental Authority
+(except (i) such Governmental Approvals which have already been obtained and are
+in full force and effect or are being obtained pursuant to Section 6.1(b), and
+(ii) any filings required by the Code in connection with perfecting the security
+interest granted herein), or (v) conflict with, contravene, constitute a default
+or breach under, or result in or permit the termination or acceleration of, any
+material agreement by which Borrower is bound.  Borrower is not in default under
+any agreement to which it is a party or by which it is bound in which the
+default could reasonably be expected to have a material adverse effect on
+Borrower’s business.  
+
+5.2Collateral.  Borrower has good title to, rights in, and the power to transfer
+each item of the Collateral upon which it purports to grant a Lien hereunder,
+free and clear of any and all Liens except Permitted Liens.  Borrower has no
+Collateral Accounts at or with any bank or financial institution other than SVB
+or SVB’s Affiliates except for the Collateral Accounts described in the
+Perfection Certificate delivered to Agent and each Lender in connection herewith
+or established in accordance with Section 6.6(b) and which Borrower has given
+Agent notice and taken such actions as are necessary to give Agent, for the
+ratable benefit of the Lenders, a perfected security interest therein, pursuant
+to the terms of Section 6.6(b).  The Accounts are bona fide, existing
+obligations of the Account Debtors.  
+
+The Collateral is not in the possession of any third party bailee (such as a
+warehouse) except as otherwise provided in the Perfection Certificate or as
+permitted pursuant to Section 7.2. None of the components of the Collateral
+shall be maintained at locations other than as provided in the Perfection
+Certificate or as permitted pursuant to Section 7.2.
+
+All Inventory is in all material respects of good and marketable quality, free
+from material defects.
+
+Borrower is the sole owner of the Intellectual Property which it owns or
+purports to own except for (a) licenses permitted hereunder, (b)
+over-the-counter software that is commercially available to the public, and (c)
+material Intellectual Property licensed to Borrower and noted on the Perfection
+Certificate or as otherwise disclosed to Agent in writing. To Borrower’s
+knowledge, each Patent which it owns or purports to own and which is material to
+Borrower’s business is valid and enforceable, and no part of the Intellectual
+Property which Borrower owns or purports to own and which is material to
+Borrower’s business has been judged invalid or unenforceable, in whole or in
+part.  To the best of Borrower’s knowledge, no claim has been made that any part
+of the Intellectual Property violates the rights of any third party except to
+the extent such claim would not reasonably be expected to have a material
+adverse effect on Borrower’s business.
+
+Except as noted on the Perfection Certificate or as otherwise disclosed to Agent
+in writing pursuant to Section 6.8(b), Borrower is not a party to, nor is it
+bound by, any Restricted License.
+
+5.3Litigation.  There are no actions or proceedings pending or, to the knowledge
+of any Responsible Officer, threatened in writing by or against Borrower or any
+of its Subsidiaries involving more than, individually or in the aggregate, Five
+Hundred Thousand Dollars ($500,000.00).
+
+5.4Financial Statements; Financial Condition.  All consolidated financial
+statements for Borrower and any of its Subsidiaries delivered to Agent and the
+Lenders fairly present in all material respects Borrower’s consolidated
+financial condition and Borrower’s consolidated results of operations as of the
+date or for the period
+
+-7-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+covered by such financial statements (except with respect to unaudited financial
+statements, subject to normal year-end adjustments and the absence of
+footnotes). There has not been any material deterioration in Borrower’s
+consolidated financial condition since the date of the most recent financial
+statements submitted to Agent and the Lenders.
+
+5.5Solvency.  The fair salable value of Borrower’s consolidated assets
+(including goodwill minus disposition costs) exceeds the fair value of
+Borrower’s liabilities; Borrower is not left with unreasonably small capital
+after the transactions in this Agreement; and Borrower is able to pay its debts
+(including trade debts) as they mature.
+
+5.6Regulatory Compliance.  Borrower is not an “investment company” or a company
+“controlled” by an “investment company” under the Investment Company Act of
+1940, as amended.  Borrower is not engaged as one of its important activities in
+extending credit for margin stock (under Regulations X, T and U of the Federal
+Reserve Board of Governors).  Borrower (a) has complied in all material respects
+with all applicable Requirements of Law except where Borrower’s failure to do so
+could not reasonably be expected to have a material adverse effect on Borrower’s
+business, and (b) has not violated any Requirements of Law the violation of
+which could reasonably be expected to have a material adverse effect on its
+business.  None of Borrower’s or any of its Subsidiaries’ properties or assets
+has been used by Borrower or any Subsidiary or, to the best of Borrower’s
+knowledge, by previous Persons, in disposing, producing, storing, treating, or
+transporting any hazardous substance other than legally.  Borrower and each of
+its Subsidiaries have obtained all consents, approvals and authorizations of,
+made all declarations or filings with, and given all notices to, all
+Governmental Authorities that are necessary to continue their respective
+businesses as currently conducted except where Borrower’s failure to do so could
+not reasonably be expected to have a material adverse effect on Borrower’s
+business.
+
+5.7Subsidiaries; Investments.  Borrower does not own any stock, partnership, or
+other ownership interest or other equity securities except for Permitted
+Investments.  
+
+5.8Tax Returns and Payments; Pension Contributions.  Borrower has timely filed
+all required tax returns and reports, or duly filed valid extensions thereof,
+and Borrower has timely paid when due and payable all foreign, federal, state
+and local taxes, assessments, deposits and contributions owed by Borrower except
+(a) to the extent such taxes are being contested in good faith by appropriate
+proceedings promptly instituted and diligently conducted, so long as such
+reserve or other appropriate provision, if any, as shall be required in
+conformity with GAAP shall have been made therefor, or (b) if such taxes,
+assessments, deposits and contributions do not, individually or in the
+aggregate, exceed Fifty Thousand Dollars ($50,000.00).  
+
+To the extent Borrower defers payment of any contested taxes, Borrower shall (i)
+notify Agent in writing of the commencement of, and any material development in,
+the proceedings and (ii) post bonds or take any other steps required to prevent
+the Governmental Authority levying such contested taxes from obtaining a Lien
+upon any of the Collateral that is other than a “Permitted Lien.”  Borrower is
+unaware of any claims or adjustments proposed for any of Borrower’s prior tax
+years which could result in additional taxes becoming due and payable by
+Borrower in excess of Fifty Thousand Dollars ($50,000.00).  Borrower has paid
+all amounts necessary to fund all present pension, profit sharing and deferred
+compensation plans in accordance with their terms, and Borrower has not
+withdrawn from participation in, and has not permitted partial or complete
+termination of, or permitted the occurrence of any other event with respect to,
+any such plan which could reasonably be expected to result in any liability of
+Borrower, including any liability to the Pension Benefit Guaranty Corporation or
+its successors or any other governmental agency.
+
+5.9Use of Proceeds.  Borrower shall use the proceeds of the Credit Extensions as
+working capital and to fund its general business requirements and not for
+personal, family, household or agricultural purposes.
+
+5.10Full Disclosure.  No written representation, warranty or other statement of
+Borrower in any certificate or written statement given to Agent or any Lender,
+as of the date such representation, warranty, or other statement was made, taken
+together with all such written certificates and written statements given to
+Agent or any Lender, contains any untrue statement of a material fact or omits
+to state a material fact necessary to make the statements contained in the
+certificates or statements not misleading (it being recognized by Agent and each
+Lender that the projections and forecasts provided by Borrower in good faith and
+based upon reasonable assumptions are not
+
+-8-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+viewed as facts and that actual results during the period or periods covered by
+such projections and forecasts may differ from the projected or forecasted
+results).
+
+5.11Definition of “Knowledge.”  For purposes of the Loan Documents, whenever a
+representation or warranty is made to Borrower’s knowledge or awareness, to the
+“best of” Borrower’s knowledge, or with a similar qualification, knowledge or
+awareness means the actual knowledge, after reasonable investigation, of any
+Responsible Officer.
+
+6AFFIRMATIVE COVENANTS
+
+Borrower shall do all of the following:
+
+6.1Government Compliance.  
+
+(a)Except as permitted under Section 7.3, maintain its and all its Subsidiaries’
+legal existence and good standing in their respective jurisdictions of formation
+and maintain qualification in each jurisdiction in which the failure to so
+qualify would reasonably be expected to have a material adverse effect on
+Borrower’s business or operations; provided, that nothing in this Section 6.1
+shall prohibit or prevent Borrower from discontinuing the legal existence and
+qualification of any Immaterial Subsidiary in any jurisdiction other than its
+jurisdiction of formation, with prior written notice to Agent, if in the
+reasonable good faith judgment of Borrower such discontinuance or qualification
+is no longer desirable in the conduct of its business or such Subsidiary is no
+longer useful to the business of Borrower or such Subsidiary.  Borrower shall
+comply, and have each Subsidiary comply, in all material respects, with all
+laws, ordinances and regulations to which it is subject, the failure to comply
+with which would reasonably be expected to result in a material adverse effect
+on Borrower’s business or operations.
+
+(b)Obtain all of the Governmental Approvals necessary for the performance by
+Borrower of its obligations under the Loan Documents to which it is a party and
+the grant of a security interest to Agent, for the ratable benefit of the
+Lenders, in all of its property.  Borrower shall promptly provide copies of any
+such obtained Governmental Approvals to Agent.
+
+6.2Financial Statements, Reports, Certificates.  Provide Agent and each Lender
+with the following:
+
+(a)Monthly Compliance Certificate.  Within thirty (30) days after the last day
+of each month and together with Borrower’s monthly revenue, net profit and cash
+balance statements, a duly completed Compliance Certificate signed by a
+Responsible Officer, certifying that as of the end of such month, Borrower was
+in full compliance with all of the terms and conditions of this Agreement, and
+setting forth calculations showing compliance with the financial covenants set
+forth in this Agreement (if any) and such other information as Agent or the
+Lenders may reasonably request;
+
+(b)Quarterly Financial Statements. As soon as available, but no later than
+forty-five (45) days after the end of each calendar quarter (ninety (90) days
+for the calendar quarter ending December 31 of each fiscal year), a company
+prepared consolidated balance sheet and income statement covering Borrower’s and
+each of its Subsidiary’s operations for such calendar quarter certified by a
+Responsible Officer and in a form acceptable to Agent (the “Quarterly Financial
+Statements”);
+
+(c)Quarterly Compliance Certificate. Within forty-five (45) days after the end
+of each calendar quarter (ninety (90) days for the calendar quarter ending
+December 31 of each fiscal year) and together with the Quarterly Financial
+Statements, a duly completed Compliance Certificate signed by a Responsible
+Officer, certifying that as of the end of such calendar quarter, Borrower was in
+full compliance with all of the terms and conditions of this Agreement, and
+setting forth calculations showing compliance with the financial covenants set
+forth in this Agreement and such other information as Agent or the Lenders may
+reasonably request, including, without limitation, a statement that at the end
+of such month there were no held checks;
+
+(d)Board Projections.  Within thirty (30) days after the last day of each fiscal
+year of Borrower, and contemporaneously with any updates or amendments thereto,
+(A) annual operating budgets (including income
+
+-9-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+statements, balance sheets and cash flow statements, by month), and (B) annual
+financial projections (on a quarterly basis), in each case as approved by the
+Board, together with any related business forecasts used in the preparation of
+such annual financial projections;
+
+(e)Annual Audited Financial Statements.  As soon as available, and in any event
+within one hundred eighty (180) days following the end of Borrower’s fiscal
+year, (A) audited consolidated financial statements prepared under GAAP,
+consistently applied, together with an unqualified opinion on the financial
+statements from an independent certified public accounting firm reasonably
+acceptable to Agent and (B) a duly completed Compliance Certificate signed by a
+Responsible Officer, certifying that as of the end of such calendar year,
+Borrower was in full compliance with all of the terms and conditions of this
+Agreement, and setting forth calculations showing compliance with the financial
+covenants set forth in this Agreement and such other information as Agent or the
+Lenders may reasonably request, including, without limitation, a statement that
+at the end of such month there were no held checks;
+
+(f)10-Q Reports. Within forty-five (45) days after the last day of each fiscal
+quarter (ninety (90) days for the calendar quarter ending December 31 of each
+fiscal year), Borrower’s 10-Q report;
+
+(g)SEC Filings.  Within five (5) days of filing, copies of all periodic and
+other reports, proxy statements and other materials filed by Borrower with the
+SEC, any Governmental Authority succeeding to any or all of the functions of the
+SEC or with any national securities exchange, or distributed to its
+shareholders, as the case may be.  Documents required to be delivered pursuant
+to the terms hereof (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 on which Borrower
+posts such documents, or provides a link thereto, on Borrower’s website on the
+internet at Borrower’s website address;
+
+(h)Other Statements.  Within five (5) days of delivery, copies of all
+statements, reports and notices made available to Borrower’s security holders or
+to any holders of Subordinated Debt;
+
+(i)Beneficial Ownership Information. Prompt written notice of any changes to the
+beneficial ownership information set out in Section 14 of the Perfection
+Certificate.  Borrower understands and acknowledges that each Lender relies on
+such true, accurate and up-to-date beneficial ownership information to meet such
+Lender’s regulatory obligations to obtain, verify and record information about
+the beneficial owners of its legal entity customers;
+
+(j)Legal Action Notice.  A prompt report of any legal actions pending or
+threatened in writing against Borrower or any of its Subsidiaries that could
+result in damages or costs to Borrower or any of its Subsidiaries of,
+individually or in the aggregate, Five Hundred Thousand Dollars ($500,000.00) or
+more; and
+
+(k)Other Financial Information.  Other financial information reasonably
+requested by Agent or any Lender.
+
+Notwithstanding the foregoing, documents required to be delivered pursuant to
+the terms hereof (to the extent any such documents are included in materials
+otherwise filed with the SEC), including without limitation any documents
+required to be delivered pursuant to Sections 6.2(c), 6.2(f), 6.2(g), 6.2(j) and
+6.2(k), may be delivered electronically and if so delivered, shall be deemed to
+have been delivered on the date on which Borrower posts such documents, or
+provides a link thereto, on Borrower’s website on the internet at Borrower’s
+website address.
+
+6.3Taxes; Pensions. Timely file, and require each of its Subsidiaries to timely
+file, all required tax returns and reports and timely pay, and require each of
+its Subsidiaries to timely pay, all foreign, federal, state and local taxes,
+assessments, deposits and contributions owed by Borrower and each of its
+Subsidiaries, except for deferred payment of any taxes contested pursuant to the
+terms of Section 5.8 hereof, and shall deliver to Agent, on demand, appropriate
+certificates attesting to such payments, and pay all amounts necessary to fund
+all present pension, profit sharing and deferred compensation plans in
+accordance with their terms.
+
+6.4Inventory; Returns.  Keep all Inventory in good and marketable condition,
+free from material defects.  Returns and allowances between Borrower and its
+Account Debtors shall follow Borrower’s customary
+
+-10-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+practices as they exist at the Effective Date.  Borrower must promptly notify
+Agent and the Lenders of all returns, recoveries, disputes and claims that
+involve more than Two Hundred Fifty Thousand Dollars ($250,000.00).
+
+6.5Insurance.  
+
+(a)Keep its business and the Collateral insured for risks and in amounts
+customary for companies in Borrower’s industry and location and as Agent may
+reasonably request.  Insurance policies shall be in a form, with financially
+sound and reputable insurance companies that are not Affiliates of Borrower, and
+in amounts that are reasonably satisfactory to Agent. All property policies
+shall have a lender’s loss payable endorsement showing Agent as the sole lender
+loss payee.  All liability policies shall show, or have endorsements showing,
+Agent as an additional insured.  Agent shall be named as lender loss payee
+and/or additional insured with respect to any such insurance providing coverage
+in respect of any Collateral.
+
+(b)Ensure that proceeds payable under any property policy are, at Agent’s
+option, payable to Agent for the ratable benefit of the Lenders on account of
+the Obligations. Notwithstanding the foregoing, (a) so long as no Event of
+Default has occurred and is continuing, Borrower shall have the option of
+applying the proceeds of any casualty policy toward the replacement or repair of
+destroyed or damaged property; provided that any such replaced or repaired
+property (i) shall be of equal or like value as the replaced or repaired
+Collateral and (ii) shall be deemed Collateral in which Agent has been granted a
+first priority security interest, and (b) after the occurrence and during the
+continuance of an Event of Default, all proceeds payable under such casualty
+policy shall, at the option of Agent, be payable to Agent on account of the
+Obligations.
+
+(c)At Agent’s request, Borrower shall deliver certified copies of insurance
+policies and evidence of all premium payments.  Each provider of any such
+insurance required under this Section 6.5 shall agree, by endorsement upon the
+policy or policies issued by it or by independent instruments furnished to
+Agent, that it will give Agent thirty (30) days (ten (10) days for nonpayment of
+premium) prior written notice before any such policy or policies shall be
+canceled.  If Borrower fails to obtain insurance as required under this Section
+6.5 or to pay any amount or furnish any required proof of payment to third
+persons and Agent, Agent may make all or part of such payment or obtain such
+insurance policies required in this Section 6.5, and take any action under the
+policies Agent deems prudent.
+
+6.6Operating Accounts.
+
+(a)Maintain all of its and all of its Subsidiaries’ operating accounts and
+excess cash with SVB and SVB’s Affiliates. In addition, Borrower shall conduct
+all other primary banking with SVB for services such as letters of credit and
+business credit cards. Any Guarantor shall maintain all operating accounts and
+excess cash with SVB and SVB’s Affiliates
+
+(b)Provide Agent five (5) days prior written notice before establishing any
+Collateral Account at or with any bank or financial institution other than SVB
+or SVB’s Affiliates. In addition, for each account that the Lenders in their
+sole discretion permit Borrower at any time to open or maintain (other than
+accounts at SVB), Borrower shall cause the applicable bank or financial
+institution (other than SVB) at or with which any such Collateral Account is
+opened or maintained to execute and deliver a Control Agreement or other
+appropriate instrument with respect to such Collateral Account to perfect
+Agent’s Lien in such Collateral Account in accordance with the terms hereunder,
+which Control Agreement may not be terminated without the prior written consent
+of the Lenders.  The provisions of the previous sentence shall not apply to
+deposit accounts exclusively used for payroll, payroll taxes and other employee
+wage and benefit payments to or for the benefit of Borrower’s employees and
+identified to Agent and the Lenders by Borrower as such.
+
+6.7Financial Covenant – Trailing Six (6) Month Net Revenue.  During a Testing
+Period, Borrower shall achieve (calculated with respect to Borrower only and not
+on a consolidated basis) for the most recent calendar quarter then-ended and
+each calendar quarter thereafter if such Testing Period is still in effect,
+minimum net revenue, generated from the sale of Borrower’s products (excluding
+revenue generated with respect to licensing arrangements), determined in
+accordance with GAAP, measured on a trailing six (6) month basis, of at least:
+
+Trailing Six (6) Month Period Ending
+
+Minimum Revenue
+
+ 
+
+-11-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+September 30, 2020
+
+[***]
+
+December 31, 2020
+
+[***]
+
+March 31, 2021
+
+[***]
+
+June 30, 2021
+
+ 
+
+September 30, 2021
+
+ 
+
+December 31, 2021
+
+[***]
+
+ 
+
+[***]
+
+ 
+
+[***]
+
+ 
+
+With respect to the period ending March 31, 2022 and each calendar quarter
+thereafter, the levels of minimum revenue shall be mutually agreed upon between
+Borrower, Agent and Lenders, based upon, among other factors, Borrower’s
+Board-approved operating plan and financial projections and Lenders’ then
+current credit underwriting. With respect thereto, Borrower’s failure to agree
+in writing (which agreement shall be set forth in a written amendment to this
+Agreement) on or before March 15, 2022, to any net revenue covenant levels
+proposed by Agent and Lenders with respect to any period from March 31, 2022
+through and including December 31, 2023, shall result in an immediate Event of
+Default for which there shall be no grace or cure period.
+
+6.8Protection of Intellectual Property Rights.
+
+(a)(i) Use commercially reasonable efforts to protect, defend and maintain the
+validity and enforceability of its Intellectual Property material to Borrower’s
+business; (ii) promptly advise Agent in writing of material infringements or any
+other event that could reasonably be expected to materially and adversely affect
+the value of its Intellectual Property material to Borrower’s business; and
+(iii) not allow any Intellectual Property material to Borrower’s business to be
+abandoned, forfeited or dedicated to the public without Agent’s written
+consent.  
+
+(b)Provide written notice to Agent within ten (10) days of entering or becoming
+bound by any Restricted License (other than over-the-counter software that is
+commercially available to the public).  Borrower shall take such commercially
+reasonable steps as Agent reasonably requests to obtain the consent of, or
+waiver by, any person whose consent or waiver is necessary for (i) any
+Restricted License to be deemed “Collateral” and for Agent to have a security
+interest in it that might otherwise be restricted or prohibited by law or by the
+terms of any such Restricted License, whether now existing or entered into in
+the future, and (ii) Agent to have the ability in the event of a liquidation of
+any Collateral to dispose of such Collateral in accordance with Agent’s and the
+Lenders’ rights and remedies under this Agreement and the other Loan Documents.
+
+6.9Litigation Cooperation.  From the date hereof and continuing through the
+termination of this Agreement, make available to Agent, without expense to Agent
+or any Lender, Borrower and its officers, employees and agents and Borrower’s
+books and records, to the extent that Agent and/or the Lenders may deem them
+reasonably necessary to prosecute or defend any third-party suit or proceeding
+instituted by or against Agent and/or any Lender with respect to any Collateral
+or relating to Borrower.
+
+6.10Access to Collateral; Books and Records.  Allow Agent or its agents, at
+reasonable times, on one (1) Business Day’s notice (provided no notice is
+required if an Event of Default has occurred and is continuing), to inspect the
+Collateral and audit and copy Borrower’s Books. The foregoing inspections and
+audits shall be conducted no more often than twice every twelve (12) months
+unless an Event of Default has occurred and is continuing in which case such
+inspections and audits shall occur as often as Agent shall determine is
+necessary. The foregoing inspections and audits shall be conducted at Borrower’s
+expense and the charge therefor shall be One Thousand Dollars ($1,000.00) per
+person per day (or such higher amount as shall represent Agent’s then-current
+standard charge for the same), plus reasonable out-of-pocket expenses. In the
+event Borrower and Agent schedule an audit more than eight (8) days in advance,
+and Borrower cancels or reschedules the audit with less than eight (8) days
+written notice to Agent, then (without limiting any of Agent’s or any Lender’s
+rights or remedies) Borrower shall pay Agent a fee of Two Thousand Dollars
+($2,000.00) plus any out-of-pocket expenses incurred by Agent to compensate
+Agent for the anticipated costs and expenses of the cancellation or
+rescheduling.
+
+-12-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+6.11Further Assurances.  Execute any further instruments and take further action
+as Agent and the Lenders reasonably request to perfect or continue Agent’s Lien
+in the Collateral or to effect the purposes of this Agreement.  Deliver to Agent
+and the Lenders, within five (5) days after the same are sent or received,
+copies of all material correspondence, reports, documents and other material
+filings with any Governmental Authority regarding compliance with or maintenance
+of Governmental Approvals or Requirements of Law or that could reasonably be
+expected to have a material effect on any of the Governmental Approvals or
+otherwise on the operations of Borrower or any of its Subsidiaries.
+
+6.12Formation or Acquisition of Subsidiaries.  Notwithstanding and without
+limiting the negative covenants contained in Sections 7.3 and 7.7 hereof, at the
+time that Borrower or any Guarantor forms any direct or indirect Subsidiary or
+acquires any direct or indirect Subsidiary after the Effective Date (including,
+without limitation, pursuant to a Division), Borrower and such Guarantor shall
+(a) cause such new Subsidiary to provide to Agent and Lenders a joinder to this
+Agreement to become a co-borrower hereunder, together with such appropriate
+financing statements and/or Control Agreements, all in form and substance
+satisfactory to Agent (including being sufficient to grant Agent a first
+priority Lien (subject to Permitted Liens) in and to the assets of such newly
+formed or acquired Subsidiary), (b) provide to Agent appropriate certificates
+and powers and financing statements, pledging all of the direct or beneficial
+ownership interest in such new Subsidiary, in form and substance satisfactory to
+Agent; and (c) provide to Agent all other documentation in form and substance
+satisfactory to Agent, including one or more opinions of counsel satisfactory to
+Agent, which in its opinion is appropriate with respect to the execution and
+delivery of the applicable documentation referred to above. Any document,
+agreement, or instrument executed or issued pursuant to this Section 6.12 shall
+be a Loan Document.
+
+6.13Post-Closing Deliverables.  Deliver to Bank (i) within sixty (60) days after
+the Effective Date, (A) a bailee’s waiver in favor of Bank for each of the
+following locations where Borrower maintains property with a third party: (1)
+Pharma Packaging Solutions - 341 JD Yarnell Industrial Parkway, Clinton, TN
+37716, (2) Sterling Pharmaceutical Services LLC - 102 Coulter Road, East
+Carondelet, IL 62240, and (3) Albany Molecular Research, Inc. - 33 Riverside
+Avenue, Rensselaer, NY 12144, by the respective third party thereof, together
+with the duly executed original signatures thereto, and (B) evidence
+satisfactory to Bank that the insurance policies and endorsements required by
+Section 6.7 hereof are in full force and effect, together with appropriate
+evidence showing lender loss payable and/or additional insured clauses or
+endorsements in favor of Bank, and (ii) within forty-five (45) days after the
+Effective Date, (A) a completed Marketing Consent Form, together with the duly
+executed signature thereto and (B) duly executed signatures to the Control
+Agreement with U.S. Bank and SVB Asset Management.
+
+6.14NEGATIVE COVENANTS
+
+Borrower shall not do any of the following without the prior written consent of
+the Lenders:
+
+6.15Dispositions.  Convey, sell, lease, transfer, assign, or otherwise dispose
+of (including, without limitation, pursuant to a Division) (collectively,
+“Transfer”), or permit any of its Subsidiaries to Transfer, all or any part of
+its business or property, except for Transfers (a) of Inventory in the ordinary
+course of business; (b) of worn-out, surplus or obsolete Equipment that is, in
+the reasonable judgment of Borrower, no longer economically practicable to
+maintain or useful in the ordinary course of business of Borrower; (c)
+consisting of Permitted Liens and Permitted Investments; (d) consisting of the
+sale or issuance of any stock of Borrower permitted under Section 7.2 of this
+Agreement; (e) consisting of Borrower’s use or transfer of money or Cash
+Equivalents in a manner that is not prohibited by the terms of this Agreement or
+the other Loan Documents; (f) of non-exclusive licenses for the use of the
+property of Borrower or its Subsidiaries in the ordinary course of business and
+licenses that could not result in a legal transfer of title of the licensed
+property but that may be exclusive in respects other than territory and that may
+be exclusive as to territory only as to discrete geographical areas outside of
+the United States; (g) subject to the limitations set forth in Section 6.7(b)
+with respect to the remittance of proceeds, Transfers of any property subject to
+a casualty event; (h) consisting of the abandonment, cancellation, non-renewal
+or discontinuance of use or maintenance of any Intellectual Property (or rights
+relating thereto) that Borrower determined in its good faith business judgment
+is no longer material to Borrower’s business and not materially disadvantageous
+to the interests of Agent and Lenders; and (i) not otherwise permitted by this
+Section 7.1, in an aggregate amount not to exceed Two Hundred Fifty Thousand
+Dollars ($250,000.00) in any twelve (12) month period.
+
+-13-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+6.16Changes in Business, Management, Control, or Business Locations.  (a) Engage
+in or permit any of its Subsidiaries to engage in any business other than the
+businesses currently engaged in by Borrower and such Subsidiary, as applicable,
+or reasonably related thereto; (b) liquidate or dissolve; (c) fail to provide
+notice to Agent and Lenders of any Key Person departing from or ceasing to be
+employed by Borrower within five (5) days after such Key Person’s departure from
+Borrower; or (d) permit or suffer any Change in Control.  
+
+Borrower shall not, without at least ten (10) days prior written notice to
+Agent: (1) add any new offices or business locations, including warehouses
+(unless such new offices or business locations contain less than Two Hundred
+Fifty Thousand Dollars ($250,000.00) in Borrower’s assets or property) or
+deliver any portion of the Collateral valued, individually or in the aggregate,
+in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) to a bailee at a
+location other than to a bailee and at a location already disclosed in the
+Perfection Certificate, excluding contract manufacturers or clinical sites, (2)
+change its jurisdiction of organization, (3) change its organizational structure
+or type, (4) change its legal name, or (5) change any organizational number (if
+any) assigned by its jurisdiction of organization.  If Borrower intends to add
+any new offices or business locations, including warehouses, containing in
+excess of Two Hundred Fifty Thousand Dollars ($250,000.00) of Borrower's assets
+or property, then Borrower will cause such landlord of any such new offices or
+business locations, including warehouses, to execute and deliver a landlord
+consent in form and substance reasonably satisfactory to Agent. If Borrower
+intends to deliver any portion of the Collateral valued, individually or in the
+aggregate, in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) to a
+bailee, and Agent and such bailee are not already parties to a bailee agreement
+governing both the Collateral and the location to which Borrower intends to
+deliver the Collateral, then Borrower will cause such bailee to execute and
+deliver a bailee agreement in form and substance reasonably satisfactory to
+Agent, excluding contract manufacturers or clinical sites.
+
+6.17Mergers or Acquisitions.  Merge or consolidate, or permit any of its
+Subsidiaries to merge or consolidate, with any other Person, or acquire, or
+permit any of its Subsidiaries to acquire, all or substantially all of the
+capital stock or property of another Person (including, without limitation, by
+the formation of any Subsidiary or pursuant to a Division) other than Permitted
+Acquisitions.  Notwithstanding the foregoing, a Subsidiary may merge or
+consolidate into another Subsidiary or into Borrower.
+
+6.18Indebtedness.  Create, incur, assume, or be liable for any Indebtedness, or
+permit any Subsidiary to do so, other than Permitted Indebtedness.
+
+6.19Encumbrance.  Create, incur, allow, or suffer any Lien on any of its
+property, or assign or convey any right to receive income, including the sale of
+any Accounts, or permit any of its Subsidiaries to do so, except for Permitted
+Liens and Transfers permitted by Section 7.1, permit any Collateral not to be
+subject to the first priority security interest granted herein (subject only to
+Permitted Liens that are permitted pursuant to the terms of this Agreement to
+have superiority to Agent’s Lien under this Agreement), or enter into any
+agreement, document, instrument or other arrangement (except with or in favor of
+Agent, for the ratable benefit of the Lenders or pursuant to the Senior Loan
+Documents) with any Person which directly or indirectly prohibits or has the
+effect of prohibiting Borrower or any Subsidiary from assigning, mortgaging,
+pledging, granting a security interest in or upon, or encumbering any of
+Borrower’s or any Subsidiary’s Intellectual Property, except (a) as is otherwise
+permitted in Section 7.1 hereof and the definition of Permitted Liens herein,
+(b) customary restrictions on assignment, transfer and encumbrances in license
+agreements under which Borrower or a Subsidiary is the licensee, and (c)
+covenants with such restrictions in contracts of sale or merger or acquisition
+agreements, provided that in the case of this clause (c), (i) such covenants do
+not prohibit or restrict Borrower from granting a security interest in
+Borrower’s or any Subsidiary’s Intellectual Property in favor of Agent, for the
+ratable benefit of the Lenders, and (ii) the counter-parties to such covenants
+are not permitted to receive or obtain a security interest in Borrower’s
+Intellectual Property or any Collateral.
+
+6.20Maintenance of Collateral Accounts.  Maintain any Collateral Account except
+pursuant to the terms of Section 6.6(b) hereof.
+
+6.21Distributions; Investments.  (a) Pay any dividends or make any distribution
+or payment or redeem, retire or purchase any capital stock provided that
+Borrower may (i) convert any of its convertible securities into other securities
+pursuant to the terms of such convertible securities, (ii) pay dividends solely
+in common stock, (iii) make cash payments in lieu of fractional shares of
+capital stock arising out of stock dividends, splits or combinations or
+
+-14-
+
+224419752 v2
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+
+Permitted Acquisitions in an aggregate amount not to exceed Twenty-Five Thousand
+Dollars ($25,000.00) in any twelve (12) month period, (iv) repurchase the stock
+of former employees, directors or consultants pursuant to stock repurchase
+agreements so long as an Event of Default does not exist at the time of any such
+repurchase and would not exist after giving effect to any such repurchase,
+provided that the aggregate amount of all such repurchases does not exceed One
+Hundred Fifty Thousand Dollars ($150,000.00) per fiscal year, and (v) purchase
+capital stock in connection with the exercise of stock options, warrants or
+other equity awards by way of cashless exercise or in connection with the
+satisfaction of withholding tax obligations; or (b) directly or indirectly make
+any Investment (including, without limitation, by the formation of any
+Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries
+to do so.
+
+6.22Transactions with Affiliates.  Directly or indirectly enter into or permit
+to exist any material transaction with any Affiliate of Borrower, except for (i)
+transactions that are in the ordinary course of Borrower’s business, upon fair
+and reasonable terms that are no less favorable to Borrower than would be
+obtained in an arm’s length transaction with a non-affiliated Person, (ii)
+reasonable and customary fees paid to members of the Board of Borrower and its
+Subsidiaries, (iii) compensation arrangements and benefit plans for officers and
+other employees of Borrower and its Subsidiaries entered into or maintained in
+the ordinary course of business, (iv) bridge financings and equity financings
+with Borrower’s investors that are otherwise permitted by Section 7.2 and
+constitutes Subordinated Debt, (v) transactions of the type described in and
+permitted by Section 7.7, and (vi) transactions of the type described in and
+permitted by subsection (f) of Permitted Investments and subsection (h) of
+Permitted Indebtedness.
+
+6.23Subordinated Debt.  (a) Make or permit any payment on any Subordinated Debt,
+except under the terms of the subordination, intercreditor, or other similar
+agreement to which such Subordinated Debt is subject, or (b) amend any provision
+in any document relating to the Subordinated Debt which would increase the
+amount thereof, provide for earlier or greater principal, interest, or other
+payments thereon, or adversely affect the subordination thereof to Obligations
+owed to Agent and the Lenders.
+
+6.24Compliance.  Become an “investment company” or a company controlled by an
+“investment company”, under the Investment Company Act of 1940, as amended, or
+undertake as one of its important activities extending credit to purchase or
+carry margin stock (as defined in Regulation U of the Board of Governors of the
+Federal Reserve System), or use the proceeds of any Credit Extension for that
+purpose; fail to meet the minimum funding requirements of ERISA, permit a
+Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; fail
+to comply with the Federal Fair Labor Standards Act or violate any other law or
+regulation, if the violation could reasonably be expected to have a material
+adverse effect on Borrower’s business, or permit any of its Subsidiaries to do
+so; withdraw or permit any Subsidiary to withdraw from participation in, permit
+partial or complete termination of, or permit the occurrence of any other event
+with respect to, any present pension, profit sharing and deferred compensation
+plan which could reasonably be expected to result in any liability of Borrower,
+including any liability to the Pension Benefit Guaranty Corporation or its
+successors or any other governmental agency.
+
+7EVENTS OF DEFAULT
+
+Any one of the following shall constitute an event of default (an “Event of
+Default”) under this Agreement:
+
+7.1Payment Default.�� Borrower fails to (a) make any payment of principal or
+interest on any Credit Extension when due, or (b) pay any other Obligations
+within three (3) Business Days after such Obligations are due and payable (which
+three (3) Business Day cure period shall not apply to payments due on the Term
+Loan Maturity Date).  During the cure period, the failure to make or pay any
+payment specified under clause (b) hereunder is not an Event of Default (but no
+Credit Extension will be made during the cure period);
+
+7.2Covenant Default.  
+
+(a) Borrower fails or neglects to perform any obligation in Sections 6.2, 6.3,
+6.4, 6.5, 6.6, 6.7, 6.8(b) or 6.13, or violates any covenant in Section 7; or
+
+(b) Borrower fails or neglects to perform, keep, or observe any other term,
+provision, condition, covenant or agreement contained in this Agreement or any
+Loan Documents, and as to any default (other than those specified in
+
+-15-
+
+224419752 v2
+
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+
+this Section 8) under such other term, provision, condition, covenant or
+agreement that can be cured, has failed to cure the default within ten (10) days
+after the occurrence thereof; provided, however, that if the default cannot by
+its nature be cured within the ten (10) day period or cannot after diligent
+attempts by Borrower be cured within such ten (10) day period, and such default
+is likely to be cured within a reasonable time, then Borrower shall have an
+additional period (which shall not in any case exceed thirty (30) days) to
+attempt to cure such default, and within such reasonable time period the failure
+to cure the default shall not be deemed an Event of Default (but no Credit
+Extensions shall be made during such cure period).  Cure periods provided under
+this section shall not apply, among other things, to financial covenants or any
+other covenants set forth in clause (a) above;
+
+7.3Material Adverse Change.  A Material Adverse Change occurs;
+
+7.4Attachment; Levy; Restraint on Business.  
+
+(a)(i) The service of process seeking to attach, by trustee or similar process,
+any funds of Borrower or of any entity under the control of Borrower (including
+a Subsidiary), or (ii) a notice of lien or levy is filed against any of
+Borrower’s assets by any Governmental Authority, and the same under subclauses
+(i) and (ii) hereof are not, within ten (10) days after the occurrence thereof,
+discharged or stayed (whether through the posting of a bond or otherwise);
+provided, however, no Credit Extensions shall be made during any ten (10) day
+cure period; or
+
+(b) (i) any material portion of Borrower’s assets is attached, seized, levied
+on, or comes into possession of a trustee or receiver, or (ii) any court order
+enjoins, restrains, or prevents Borrower from conducting all or any material
+part of its business;
+
+7.5Insolvency.  (a) Borrower or any of its Subsidiaries is unable to pay its
+debts (including trade debts) as they become due or otherwise becomes insolvent;
+(b) Borrower or any of its Subsidiaries begins an Insolvency Proceeding; or
+(c) an Insolvency Proceeding is begun against Borrower or any of its
+Subsidiaries and is not dismissed or stayed within forty-five (45) days (but no
+Credit Extensions shall be made while any of the conditions described in clause
+(a) exist and/or until any Insolvency Proceeding is dismissed);
+
+7.6Other Agreements.  There is, under any agreement to which Borrower or any
+Guarantor is a party with a third party or parties, (a) any default resulting in
+a right by such third party or parties, whether or not exercised, to accelerate
+the maturity of any Indebtedness in an amount individually or in the aggregate
+in excess of Five Hundred Thousand Dollars ($500,000.00); or (b) any breach or
+default by Borrower or Guarantor, the result of which could have a material
+adverse effect on Borrower’s or any Guarantor’s business; provided, however,
+that the Event of Default under this Section 8.6 caused by the occurrence of a
+breach or default under such other agreement shall be cured or waived for
+purposes of this Agreement upon Agent receiving written notice from the party
+asserting such breach or default of such cure or waiver of the breach or default
+under such other agreement, if at the time of such cure or waiver under such
+other agreement (x) Agent has not declared an Event of Default under this
+Agreement and/or exercised any rights with respect thereto; (y) any such cure or
+waiver does not result in an Event of Default under any other provision of this
+Agreement or any Loan Document; and (z) in connection with any such cure or
+waiver under such other agreement, the terms of any agreement with such third
+party are not modified or amended in any manner which could in the good faith
+business judgment of Agent be materially less advantageous to Borrower or any
+Guarantor;
+
+7.7Judgments; Penalties.  One or more fines, penalties, or final judgments,
+orders or decrees for the payment of money in an amount, individually or in the
+aggregate, of at least Five Hundred Thousand Dollars ($500,000.00) (not covered
+by independent third-party insurance as to which liability has been accepted by
+such insurance carrier) shall be rendered against Borrower by any Governmental
+Authority, and the same are not, within ten (10) days after the entry,
+assessment or issuance thereof, discharged, satisfied, or paid, or after
+execution thereof, stayed or bonded pending appeal, or such judgments are not
+discharged prior to the expiration of any such stay (provided that no Credit
+Extensions will be made prior to the satisfaction, payment, discharge, stay, or
+bonding of such fine, penalty, judgment, order or decree);
+
+7.8Misrepresentations.  Borrower or any Person acting for Borrower makes any
+representation, warranty, or other statement now or later in this Agreement, any
+Loan Document or in any writing delivered to Agent or any Lender or to induce
+Agent or any Lender to enter this Agreement or any Loan Document, and such
+representation, warranty, or other statement is incorrect in any material
+respect when made (it being recognized by
+
+-16-
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+
+Agent that the projections and forecasts provided by Borrower in good faith and
+based upon reasonable assumptions are not viewed as facts and that actual
+results during the period or periods covered by such projections and forecasts
+may differ from the projected or forecasted results);
+
+7.9Subordinated Debt.  Any document, instrument, or agreement evidencing any
+Subordinated Debt shall for any reason be revoked or invalidated or otherwise
+cease to be in full force and effect (provided that any revocation,
+cancellation, invalidation, or termination of any such document, instrument or
+agreement that (i) is consented to in writing by Agent in its sole and absolute
+discretion or (ii) results from Borrower’s payment in full of the Subordinated
+Debt if permitted under any subordination agreement, shall not constitute an
+Event of Default under this Section 8.9), any Person shall be in breach thereof
+or contest in any manner the validity or enforceability thereof or deny that it
+has any further liability or obligation thereunder, or the Obligations shall for
+any reason be subordinated or shall not have the priority contemplated by this
+Agreement or any applicable subordination or intercreditor agreement; or
+
+7.10Governmental Approvals.  Any Governmental Approval shall have been
+(a) revoked, rescinded, suspended, modified in an adverse manner or not renewed
+in the ordinary course for a full term or (b) subject to any decision by a
+Governmental Authority that designates a hearing with respect to any
+applications for renewal of any of such Governmental Approval or that could
+result in the Governmental Authority taking any of the actions described in
+clause (a) above, and such decision or such revocation, rescission, suspension,
+modification or non-renewal (i) cause, or could reasonably be expected to cause,
+a Material Adverse Change, or (ii)  materially adversely affects the legal
+qualifications of Borrower or any of its Subsidiaries to hold such Governmental
+Approval in any applicable jurisdiction and such revocation, rescission,
+suspension, modification or non-renewal could reasonably be expected to
+materially adversely affect the status of or legal qualifications of Borrower or
+any of its Subsidiaries to hold any Governmental Approval in any other
+jurisdiction.
+
+7.11Senior Loan Agreement. The occurrence of an Event of Default (as defined in
+the Senior Loan Agreement) under the Senior Loan Agreement.
+
+8RIGHTS AND REMEDIES
+
+8.1Rights and Remedies.  Upon the occurrence and during the continuance of an
+Event of Default, Agent, in accordance with the Lender Intercreditor Agreement
+or, if such rights and remedies are not addressed in the Lender Intercreditor
+Agreement, as directed by Lenders having a majority of the Obligations, may,
+without notice or demand, do any or all of the following:
+
+(a)declare all Obligations immediately due and payable (but if an Event of
+Default described in Section 8.5 occurs all Obligations are immediately due and
+payable without any action by Agent or any Lender);
+
+(b)stop advancing money or extending credit for Borrower’s benefit under this
+Agreement or under any other agreement among Borrower, Agent and/or any Lenders;
+
+(c)demand that Borrower (i) deposit cash with SVB in an amount equal to at least
+(x) one hundred five percent (105.0%) of the Dollar Equivalent of the aggregate
+face amount of all Letters of Credit denominated in Dollars remaining undrawn,
+and (y) one hundred ten percent (110.0%) of the Dollar Equivalent of the
+aggregate face amount of all Letters of Credit denominated in a Foreign Currency
+remaining undrawn (plus, in each case, all interest, fees, and costs due or to
+become due in connection therewith (as estimated by SVB in its good faith
+business judgment)), to secure all of the Obligations relating to such Letters
+of Credit, as collateral security for the repayment of any future drawings under
+such Letters of Credit, and Borrower shall forthwith deposit and pay such
+amounts, and (ii) pay in advance all letter of credit fees scheduled to be paid
+or payable over the remaining term of any Letters of Credit;
+
+(d)terminate any FX Contracts;
+
+(e)verify the amount of, demand payment of and performance under, and collect
+any Accounts and General Intangibles, settle or adjust disputes and claims
+directly with Account Debtors for amounts on terms and
+
+-17-
+
+224419752 v2
+
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+
+in any order that Agent and/or the Lenders consider advisable, and notify any
+Person owing Borrower money of Agent’s security interest in such funds;  
+
+(f)make any payments and do any acts Agent or any Lender considers necessary or
+reasonable to protect the Collateral and/or its security interest in the
+Collateral.  Borrower shall assemble the Collateral if Agent requests and make
+it available as Agent designates.  Agent may enter premises where the Collateral
+is located, take and maintain possession of any part of the Collateral, and pay,
+purchase, contest, or compromise any Lien which appears to be prior or superior
+to its security interest or charges and pay all expenses incurred. Borrower
+grants Agent a license to enter and occupy any of its premises, without charge,
+to exercise any of Agent’s rights or remedies;
+
+(g)apply to the Obligations (i) any balances and deposits of Borrower it holds,
+or (ii) any amount held by Agent owing to or for the credit or the account of
+Borrower;
+
+(h)ship, reclaim, recover, store, finish, maintain, repair, prepare for sale,
+advertise for sale, and sell the Collateral.  Agent, for the benefit of the
+Lenders, is hereby granted a non-exclusive, royalty-free license or other right
+to use, without charge, Borrower’s labels, Patents, Copyrights, mask works,
+rights of use of any name, trade secrets, trade names, Trademarks, and
+advertising matter, or any similar property as it pertains to the Collateral, in
+completing production of, advertising for sale, and selling any Collateral and,
+in connection with Agent’s exercise of its rights under this Section, Borrower’s
+rights under all licenses and all franchise agreements inure to Agent, for the
+ratable benefit of the Lenders;
+
+(i)place a “hold” on any account maintained with Agent or Lenders and/or deliver
+a notice of exclusive control, any entitlement order, or other directions or
+instructions pursuant to any Control Agreement or similar agreements providing
+control of any Collateral;
+
+(j)demand and receive possession of Borrower’s Books; and
+
+(k)exercise all rights and remedies available to Agent and the Lenders under the
+Loan Documents or at law or equity, including all remedies provided under the
+Code (including disposal of the Collateral pursuant to the terms thereof).
+
+8.2Power of Attorney.  Borrower hereby irrevocably appoints Agent, for the
+benefit of the Lenders, as its lawful attorney-in-fact, exercisable upon the
+occurrence and during the continuance of an Event of Default, to: (a) endorse
+Borrower’s name on any checks or other forms of payment or security; (b) sign
+Borrower’s name on any invoice or bill of lading for any Account or drafts
+against Account Debtors; (c) settle and adjust disputes and claims about the
+Accounts directly with Account Debtors, for amounts and on terms Agent
+determines reasonable; (d) make, settle, and adjust all claims under Borrower’s
+insurance policies; (e) pay, contest or settle any Lien, charge, encumbrance,
+security interest, and adverse claim in or to the Collateral, or any judgment
+based thereon, or otherwise take any action to terminate or discharge the same;
+and (f) transfer the Collateral into the name of Agent or a third party as the
+Code permits. Borrower hereby appoints Agent as its lawful attorney-in-fact to
+sign Borrower’s name on any documents necessary to perfect or continue the
+perfection of Agent’s security interest in the Collateral regardless of whether
+an Event of Default has occurred until all Obligations (other than inchoate
+indemnity obligations or other obligations which, by their terms, survive the
+termination of this Agreement) have been satisfied in full and Lenders are under
+no further obligation to make Credit Extensions hereunder. Agent’s foregoing
+appointment as Borrower’s attorney in fact, and all of Agent’s rights and
+powers, coupled with an interest, are irrevocable until all Obligations have
+been fully repaid and performed and each Lender’s obligation to provide Credit
+Extensions terminates.
+
+8.3Protective Payments.  If Borrower fails to obtain the insurance called for by
+Section 6.5 or fails to pay any premium thereon or fails to pay any other amount
+which Borrower is obligated to pay under this Agreement or any other Loan
+Document or which may be required to preserve the Collateral, Agent may obtain
+such insurance or make such payment, and all amounts so paid by Agent are
+Lenders’ Expenses and immediately due and payable, bearing interest at the then
+highest rate applicable to the Obligations, and secured by the Collateral. Agent
+will make reasonable efforts to provide Borrower with notice of Agent obtaining
+such insurance at the time it is obtained or within a reasonable time
+thereafter. No payments by Agent are deemed an agreement to make similar
+payments in the future or Agent’s or and Lenders’ waiver of any Event of
+Default.
+
+-18-
+
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+
+8.4Application of Payments and Proceeds Upon Default.  If an Event of Default
+has occurred and is continuing, Agent shall have the right to apply in any order
+any funds in its possession, whether from Borrower account balances, payments,
+proceeds realized as the result of any collection of Accounts or other
+disposition of the Collateral, or otherwise, to the Obligations. Agent shall pay
+any surplus to Borrower by credit to the Designated Deposit Account or to other
+Persons legally entitled thereto; Borrower shall remain liable to Agent and the
+Lenders for any deficiency. If Agent, directly or indirectly, enters into a
+deferred payment or other credit transaction with any purchaser at any sale of
+Collateral, Agent shall have the option, exercisable at any time, of either
+reducing the Obligations by the principal amount of the purchase price or
+deferring the reduction of the Obligations until the actual receipt by Agent of
+cash therefor.
+
+8.5Liability for Collateral.  So long as Agent and Lenders comply with
+reasonable banking practices regarding the safekeeping of the Collateral in
+their possession or under the control of Agent and/or Lenders, Agent and Lenders
+shall not be liable or responsible for: (a) the safekeeping of the Collateral;
+(b) any loss or damage to the Collateral; (c) any diminution in the value of the
+Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or
+other Person. Borrower bears all risk of loss, damage or destruction of the
+Collateral, except to the extent caused by the gross negligence or willful
+misconduct of Agent or Lenders.
+
+8.6No Waiver; Remedies Cumulative.  Agent’s and any Lender’s failure, at any
+time or times, to require strict performance by Borrower of any provision of
+this Agreement or any other Loan Document shall not waive, affect, or diminish
+any right of Agent or any Lender thereafter to demand strict performance and
+compliance herewith or therewith. No waiver hereunder shall be effective unless
+signed by the party granting the waiver and then is only effective for the
+specific instance and purpose for which it is given. Agent’s and each Lender’s
+rights and remedies under this Agreement and the other Loan Documents are
+cumulative. Agent and each Lender have all rights and remedies provided under
+the Code, by law, or in equity. Agent’s or any Lender’s exercise of one right or
+remedy is not an election and shall not preclude Agent or any Lender from
+exercising any other remedy under this Agreement or any other Loan Document or
+other remedy available at law or in equity, and Agent’s or any Lender’s waiver
+of any Event of Default is not a continuing waiver. Agent’s or any Lender’s
+delay in exercising any remedy is not a waiver, election, or acquiescence.  
+
+8.7Demand Waiver.  To the extent permitted by law, Borrower waives demand,
+notice of default or dishonor, notice of payment and nonpayment, notice of any
+default, nonpayment at maturity, release, compromise, settlement, extension, or
+renewal of accounts, documents, instruments, chattel paper, and guarantees held
+by Agent on which Borrower is liable.
+
+9Agent
+
+9.1Appointment and Authority.
+
+(a)Each Lender hereby irrevocably appoints SVB to act on its behalf as Agent
+hereunder and under the other Loan Documents and authorizes Agent to take such
+actions on its behalf and to exercise such powers as are delegated to Agent by
+the terms hereof or thereof, together with such actions and powers as are
+reasonably incidental thereto.
+
+(b)The provisions of this Section 10 are solely for the benefit of Agent and
+Lenders, and Borrower shall not have rights as a third party beneficiary of any
+of such provisions.  Notwithstanding any provision to the contrary elsewhere in
+this Agreement, Agent shall not have any duties or responsibilities to any
+Lender or any other Person, except those expressly set forth herein, or any
+fiduciary relationship with any Lender, and no implied covenants, functions,
+responsibilities, duties, obligations or liabilities shall be read into this
+Agreement or any other Loan Document or otherwise exist against Agent.
+
+9.2Delegation of Duties.  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 Agent.  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 Indemnified Persons.  The exculpatory
+provisions of this Section 10.2 shall apply to any such sub-agent and to the
+Indemnified Persons of Agent and any such sub-agent, and shall apply to their
+respective activities in connection with the syndication of the credit
+facilities provided for herein as well as activities as Agent.
+
+-19-
+
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+
+9.3  Exculpatory Provisions.  Agent shall have no duties or obligations except
+those expressly set forth herein and in the other Loan Documents.  Without
+limiting the generality of the foregoing, Agent shall not:
+
+(a)be subject to any fiduciary, trust, agency or other similar duties,
+regardless of whether any Event of Default has occurred and is continuing;
+
+(b)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 Agent is required to exercise as directed in
+writing by the Lenders, as applicable; provided that Agent shall not be required
+to take any action that, in its opinion or the opinion of its counsel, may
+expose Agent to liability or that is contrary to any Loan Document or applicable
+law; and
+
+(c)except as expressly set forth herein and in the other Loan Documents, have
+any duty to disclose, and Agent shall not be liable for the failure to disclose,
+any information relating to Borrower or any of its Affiliates that is
+communicated to or obtained by any Person serving as Agent or any of its
+Affiliates in any capacity.
+
+Agent shall not be liable for any action taken or not taken by it (i) with the
+consent or at the request of the Lenders (or as Agent shall believe in good
+faith shall be necessary, under the circumstances as provided in Section 13.7)
+or (ii) in the absence of its own gross negligence or willful misconduct.
+
+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 Event of Default, (iv) the validity, enforceability,
+effectiveness or genuineness of this Agreement, any other Loan Document or any
+other agreement, instrument or document or (v) the satisfaction of any condition
+set forth in Section 3 or elsewhere herein, other than to confirm receipt of
+items expressly required to be delivered to Agent.
+
+ 
+
+9.4 Reliance by Agent.  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.  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.  Agent may consult with legal
+counsel (who may be counsel for 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.  In determining compliance with any condition hereunder to the making
+of a Credit Extension that, by its terms, must be fulfilled to the satisfaction
+of a Lender, Agent may presume that such condition is satisfactory to such
+Lender unless Agent shall have received notice to the contrary from such Lender
+prior to the making of such Credit Extension.  Agent shall in all cases be fully
+protected in acting, or in refraining from acting, under this Agreement and the
+other Loan Documents in accordance with a request of the Lenders, and such
+request and any action taken or failure to act pursuant thereto shall be binding
+upon Lenders and all future holders of the Credit Extensions.
+
+9.5 Notice of Default.  Agent shall not be deemed to have knowledge or notice of
+the occurrence of any Event of Default (except with respect to defaults in the
+payment of principal, interest or fees required to be paid to Agent for the
+account of Lenders), unless Agent has received notice from a Lender or Borrower
+referring to this Agreement, describing such Event of Default and stating that
+such notice is a “notice of default”.  In the event that Agent receives such a
+notice, Agent shall give notice thereof to Lenders.  Agent shall take such
+action with respect to such Event of Default as shall be reasonably directed by
+the Lenders.
+
+9.6 Non-Reliance on Agent and Other Lenders.  Each Lender expressly acknowledges
+that neither Agent nor any of its officers, directors, employees, agents,
+attorneys in fact or affiliates has made any representations or warranties to it
+and that no act by Agent hereafter taken, including any review of the affairs of
+a Group Member or any Affiliate of a Group Member, shall be deemed to constitute
+any representation or warranty by Agent to any Lender.  Each Lender represents
+to Agent that it has, independently and without reliance upon Agent or any other
+Lender, and
+
+-20-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+based on such documents and information as it has deemed appropriate, made its
+own appraisal of, and investigation into, the business, operations, property,
+financial and other condition and creditworthiness of the Group Members and
+their Affiliates and made its own decision to make its Credit Extensions
+hereunder and enter into this Agreement.  Each Lender also represents that it
+will, independently and without reliance upon Agent or any other Lender, and
+based on such documents and information as it shall deem appropriate at the
+time, continue to make its own credit analysis, appraisals and decisions in
+taking or not taking action under this Agreement and the other Loan Documents,
+and to make such investigation as it deems necessary to inform itself as to the
+business, operations, property, financial and other condition and
+creditworthiness of the Group Members and their Affiliates.  Except for notices,
+reports and other documents expressly required to be furnished to Lenders by
+Agent hereunder, Agent shall have no duty or responsibility to provide any
+Lender with any credit or other information concerning the business, operations,
+property, condition (financial or otherwise), prospects or creditworthiness of
+any Group Member or any Affiliate of a Group Member that may come into the
+possession of Agent or any of its officers, directors, employees, agents,
+attorneys in fact or Affiliates.
+
+9.7Indemnification.  Each Lender agrees to indemnify Agent in its capacity as
+such (to the extent not reimbursed by Borrower and without limiting the
+obligation of Borrower to do so in accordance with the terms hereof), according
+to its Term Loan Commitment Percentage in effect on the date on which
+indemnification is sought under this Section 10.7 (or, if indemnification is
+sought after the date upon which the Commitments shall have terminated and the
+Obligations shall have been paid in full, in accordance with its Term Loan
+Commitment Percentage immediately prior to such date), from and against any and
+all liabilities, obligations, losses, damages, penalties, actions, judgments,
+suits, costs, expenses or disbursements of any kind whatsoever that may at any
+time (whether before or after the payment of the Credit Extensions) be imposed
+on, incurred by or asserted against Agent in any way relating to or arising out
+of, the Commitments, this Agreement, any of the other Loan Documents or any
+documents contemplated by or referred to herein or therein or the transactions
+contemplated hereby or thereby or any action taken or omitted by Agent under or
+in connection with any of the foregoing; provided that no Lender shall be liable
+for the payment of any portion of such liabilities, obligations, losses,
+damages, penalties, actions, judgments, suits, costs, expenses or disbursements
+that are found by a final and nonappealable decision of a court of competent
+jurisdiction to have resulted primarily from Agent’s gross negligence or willful
+misconduct.  The agreements in this Section shall survive the payment of the
+Credit Extensions and all other amounts payable hereunder.
+
+9.8Agent in Its Individual Capacity.  The Person serving as 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 Agent and the term
+“Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the
+context otherwise requires, include each such Person serving as 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 Borrower, any
+Guarantor or any Subsidiary or other Affiliate thereof as if such Person were
+not Agent hereunder and without any duty to account therefor to Lenders.
+
+9.9  Successor Agent.  Agent may at any time give notice of its resignation to
+Lenders and Borrower, which resignation shall not be effective until the time at
+which the majority of the Lenders have delivered to Agent their written consent
+to such resignation.  Upon receipt of any such notice of resignation, the
+Lenders shall have the right, in consultation with Borrower, to appoint a
+successor, which shall be a financial institution with an office in the State of
+California, or an Affiliate of any such bank with an office in the State of
+California.  If no such successor shall have been so appointed by the Lenders
+and shall have accepted such appointment within thirty (30) days after the
+retiring Agent has received the written consent of the majority of the Lenders
+to such resignation, then the retiring Agent may on behalf of Lenders, appoint a
+successor Agent meeting the qualifications set forth above; provided that in no
+event shall any such successor Agent be a Defaulting Lender and provided further
+that if the retiring Agent shall notify Borrower and 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 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 Agent on
+behalf of the Lenders under any of the Loan Documents, the retiring Agent shall
+continue to hold such collateral security until such time as a successor Agent
+is appointed and such collateral security is assigned to such successor Agent)
+and (2) all payments, communications and determinations provided to be made by,
+to or through Agent shall instead be made by or to each Lender directly, until
+such time as the Lenders appoint a successor Agent as provided for above in this
+Section 10.9.  Upon the acceptance of a successor’s appointment as Agent
+hereunder, such successor shall succeed to and become vested with all of the
+rights, powers, privileges and duties of the retiring
+
+-21-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(or retired) Agent, and the retiring 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 10.9).  The fees
+payable by Borrower to a successor Agent shall be the same as those payable to
+its predecessor unless otherwise agreed between Borrower and such
+successor.  After the retiring Agent’s resignation hereunder and under the other
+Loan Documents, the provisions of this Section 10 shall continue in effect for
+the benefit of such retiring Agent, its sub-agents and their respective
+Indemnified Persons in respect of any actions taken or omitted to be taken by
+any of them while the retiring Agent was acting as Agent.
+
+9.10Defaulting Lender.  
+
+(a)Defaulting Lender Adjustments.  Notwithstanding anything to the contrary
+contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
+until such time as such 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 long as said Lender is a Defaulting Lender.
+
+(ii)Defaulting Lender Waterfall.  Any payment of principal, interest, fees or
+other amounts received by the Agent for the account of such Defaulting Lender
+(whether voluntary or mandatory, at maturity, pursuant to Section 8 or
+otherwise, and including any amounts made available to the Agent by such
+Defaulting Lender pursuant to Section 13.10), shall be applied at such time or
+times as may be determined by the Agent as follows: first, to the payment of any
+amounts owing by such Defaulting Lender to the Agent hereunder; second, as
+Borrower may request (so long as no Event of Default exists), to the funding of
+any Term Loan Advance in respect of which such Defaulting Lender has failed to
+fund its portion thereof as required by this Agreement, as determined by the
+Agent; third, if so determined by the Agent and Borrower, to be held in a
+Deposit Account and released pro rata to satisfy such Defaulting Lender’s
+potential future funding obligations with respect to Term Loan Advances under
+this Agreement; fourth, so long as no Event of Default has occurred and is
+continuing, to the payment of any amounts owing to Borrower as a result of any
+judgment of a court of competent jurisdiction obtained by Borrower against such
+Defaulting Lender as a result of such Defaulting Lender’s breach of its
+obligations under this Agreement; and fifth, to such Defaulting Lender or as
+otherwise directed by a court of competent jurisdiction; provided that if
+(A) such payment is a payment of the principal amount of any Term Loan Advances
+in respect of which such Defaulting Lender has not fully funded its appropriate
+share and (B) such Term Loan Advances were made at a time when the conditions
+set forth in Section 3.1 were satisfied or waived, such payment shall be applied
+solely to pay the Term Loan Advance of all non-Defaulting Lenders on a pro rata
+basis prior to being applied to the payment of any Term Loan Advances of such
+Defaulting Lender until such time as all Term Loan Advances are held by the
+Lenders pro rata in accordance with the Term Loan Commitments under this
+Agreement.  Any payments, prepayments or other amounts paid or payable to a
+Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting
+Lender pursuant to this Section 10.10(a)(ii) shall be deemed paid to and
+redirected by such Defaulting Lender, and each Lender irrevocably consents
+hereto.
+
+(iii)Certain Fees.  No Defaulting Lender shall be entitled to receive any fee
+pursuant to Section 2.3(b) or Section 2.3(c) for any period during which such
+Lender is a Defaulting Lender (and Borrower shall not be required to pay any
+such fee that otherwise would have been required to have been paid to such
+Defaulting Lender).  
+
+(b)Defaulting Lender Cure.  If Borrower and Agent agree in writing that a Lender
+is no longer a Defaulting Lender, 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, such Lender will, to the extent applicable,
+purchase at par that portion of outstanding Term Loan Advances of the other
+Lenders or take such other actions as Agent may determine to be necessary to
+cause the Term Loan Advances to be held on a pro rata basis by the Lenders in
+accordance with their respective Term Loan Commitment Percentages, whereupon
+such Lender will cease to be a Defaulting Lender;
+
+-22-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+provided that no adjustments will be made retroactively with respect to fees
+accrued or payments made by or on behalf of Borrower while such 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 such Lender having been a Defaulting Lender.
+
+(c)Termination of Defaulting Lender.  Borrower may terminate the unused amount
+of the Term Loan Commitment of any Lender that is a Defaulting Lender upon not
+less than ten (10) Business Days’ prior notice to Agent (which shall promptly
+notify the Lenders thereof), and in such event the provisions of Section
+10.10(a)(ii) will apply to all amounts thereafter paid by Borrower for the
+account of such Defaulting Lender under this Agreement (whether on account of
+principal, interest, fees, indemnity or other amounts); provided that (i) no
+Event of Default shall have occurred and be continuing, and (ii) such
+termination shall not be deemed to be a waiver or release of any claim Borrower,
+Agent or any Lender may have against such Defaulting Lender.
+
+(d)If the Person serving as Agent is a Defaulting Lender pursuant to clause (d)
+of the definition thereof, the non-Defaulting Lenders may, to the extent
+permitted by applicable law, by notice in writing to Borrower and such Person,
+remove such Person as Agent and, in consultation with Borrower, appoint a
+successor.  If no such successor shall have been so appointed by the
+non-Defaulting Lenders and shall have accepted such appointment within thirty
+(30) days (or such earlier day as shall be agreed by the non-Defaulting Lenders)
+(the “Removal Effective Date”), then such removal shall nonetheless become
+effective in accordance with such notice on the Removal Effective Date.
+
+10NOTICES
+
+All notices, consents, requests, approvals, demands, or other communication by
+any party to this Agreement or any other Loan Document must be in writing and
+shall be deemed to have been validly served, given, or delivered: (a) upon the
+earlier of actual receipt and three (3) Business Days after deposit in the U.S.
+mail, first class, registered or certified mail return receipt requested, with
+proper postage prepaid; (b) upon transmission, when sent by electronic mail or
+facsimile transmission; (c) one (1) Business Day after deposit with a reputable
+overnight courier with all charges prepaid; or (d) when delivered, if
+hand-delivered by messenger, all of which shall be addressed to the party to be
+notified and sent to the address, facsimile number, or email address indicated
+below. Agent or Borrower may change its mailing or electronic mail address or
+facsimile number by giving the other party written notice thereof in accordance
+with the terms of this Section 11.
+
+If to Borrower:Verrica Pharmaceuticals Inc.
+
+10 North High Street, Suite 200
+
+West Chester, Pennsylvania 19380
+Attn: Brian Davis
+
+Email: Bdavis@verrica.com
+
+ 
+
+with a copy to:
+
+ 
+
+ 
+
+Cooley LLP
+
+101 California Street, 5th Floor
+
+San Francisco, California 94111-5800
+
+Attention: Maricel Mojares-Moore
+
+Fax: (415) 693-2222
+
+Email: mmoore@cooley.com
+
+ 
+
+If to Agent or SVB:Silicon Valley Bank
+275 Grove Street, Suite 2-200
+Newton, Massachusetts 02466
+Attn:Michael McMahon
+Email:  Mmcmahon@svb.com
+
+-23-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+ 
+
+with a copy to:Morrison & Foerster LLP
+200 Clarendon Street, 20th Floor
+Attn: David A. Ephraim, Esquire
+
+Email: Dephraim@mofo.com
+
+If to WestRiver:WestRiver Innovation Lending Fund VIII, L.P.
+
+c/o WestRiver Management, LLC
+
+920 5th Avenue, Suite 3450
+Seattle, WA 98104
+
+Attn: Harper Ellison
+
+Email: Harper@wrg.VC
+
+ 
+
+11Choice of Law, Venue AND Jury Trial Waiver
+
+Except as otherwise expressly provided in any of the Loan Documents, California
+law governs the Loan Documents without regard to principles of conflicts of
+law.  Except to the extent otherwise set forth in the Loan Documents, Borrower,
+Agent and Lenders each submit to the exclusive jurisdiction of the State and
+Federal courts in Santa Clara County, California; provided, however, that
+nothing in this Agreement shall be deemed to operate to preclude Agent or
+Lenders from bringing suit or taking other legal action in any other
+jurisdiction to realize on the Collateral or any other security for the
+Obligations, or to enforce a judgment or other court order in favor of Agent or
+any Lender.  Borrower expressly submits and consents in advance to such
+jurisdiction in any action or suit commenced in any such court, and Borrower
+hereby waives any objection that it may have based upon lack of personal
+jurisdiction, improper venue, or forum non conveniens and hereby consents to the
+granting of such legal or equitable relief as is deemed appropriate by such
+court.  Borrower hereby waives personal service of the summons, complaints, and
+other process issued in such action or suit and agrees that service of such
+summons, complaints, and other process may be made by registered or certified
+mail addressed to Borrower at the address set forth in, or subsequently provided
+by Borrower in accordance with, Section 11 of this Agreement and that service so
+made shall be deemed completed upon the earlier to occur of Borrower’s actual
+receipt thereof or three (3) days after deposit in the U.S. mails, proper
+postage prepaid.
+
+TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, AGENT AND EACH
+LENDER EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
+ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
+CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
+CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS
+AGREEMENT.  EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
+
+This Section 12 shall survive the termination of this Agreement.
+
+12GENERAL PROVISIONS
+
+12.1Termination Prior to Term Loan Maturity Date; Survival.  All covenants,
+representations and warranties made in this Agreement continue in full force
+until this Agreement has terminated pursuant to its terms and all Obligations
+(other than inchoate indemnity obligations, any other obligations which, by
+their terms, are to survive the termination of this Agreement) have been
+satisfied.  So long as Borrower has satisfied the Obligations (other than
+inchoate indemnity obligations, any other obligations which, by their terms, are
+to survive the termination of this Agreement), this Agreement may be terminated
+prior to the Term Loan Maturity Date by Borrower, effective three (3) Business
+Days after written notice of termination is given to Agent.  Those obligations
+that are expressly specified in this Agreement as surviving this Agreement’s
+termination shall continue to survive notwithstanding this Agreement’s
+termination.  No termination of this Agreement shall in any way affect or impair
+any right or remedy of Agent or any Lender, nor shall any such termination
+relieve Borrower of any Obligation to any Lender, until all of the Obligations
+have been paid and performed in full. Those Obligations that are expressly
+specified in this Agreement as
+
+-24-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+surviving this Agreement’s termination shall continue to survive notwithstanding
+this Agreement’s termination and payment in full of the Obligations then
+outstanding.
+
+12.2Successors and Assigns.  This Agreement binds and is for the benefit of the
+successors and permitted assigns of each party. Borrower may not assign this
+Agreement or any rights or obligations under it without Agent and Lenders’ prior
+written consent (which may be granted or withheld in Agent’s and Lenders’ sole
+discretion). Agent and each Lender has the right, without the consent of or
+notice to Borrower, to sell, transfer, assign, negotiate, or grant participation
+in all or any part of, or any interest in, such Lender’s obligations, rights,
+and benefits under this Agreement and the other Loan Documents. Notwithstanding
+the foregoing, prior to the occurrence of an Event of Default, Lenders shall not
+assign any interest in the Loan Documents to any person who is a direct
+competitor of Borrower.
+
+12.3Indemnification.  Borrower agrees to indemnify, defend and hold Agent, each
+Lender and their respective directors, officers, employees, agents, attorneys,
+or any other Person affiliated with or representing Agent or any Lender (each,
+an “Indemnified Person”) harmless against: (i) all obligations, demands, claims,
+and liabilities (collectively, “Claims”) claimed or asserted by any other party
+in connection with the transactions contemplated by the Loan Documents; and (ii)
+all losses or expenses (including Lenders’ Expenses) in any way suffered,
+incurred, or paid by such Indemnified Person as a result of, following from,
+consequential to, or arising from transactions between Agent, Lenders and
+Borrower (including  reasonable attorneys’ fees and expenses),  except for
+Claims and/or losses directly caused by such Indemnified Person’s gross
+negligence or willful misconduct.  This Section 13.3 shall survive until all
+statutes of limitation with respect to the Claims, losses, and expenses for
+which indemnity is given shall have run.
+
+12.4Time of Essence.  Time is of the essence for the performance of all
+Obligations in this Agreement.
+
+12.5Severability of Provisions.  Each provision of this Agreement is severable
+from every other provision in determining the enforceability of any provision.
+
+12.6Correction of Loan Documents.  Agent may correct patent errors and fill in
+any blanks in the Loan Documents consistent with the agreement of the parties.
+
+12.7Amendments in Writing; Waiver; Integration.  No purported amendment or
+modification of any Loan Document, or waiver, discharge or termination of any
+obligation under any Loan Document, or release, or subordinate Lenders’ security
+interest in, or consent to the transfer of, any Collateral shall be enforceable
+or admissible unless, and only to the extent, expressly set forth in a writing
+signed by Agent, with the consent of the Lenders in accordance with the Lender
+Intercreditor Agreement or, if such item is not addressed in the Lender
+Intercreditor Agreement, as consented to by a majority of the Lenders, and
+Borrower.  Without limiting the generality of the foregoing, no oral promise or
+statement, nor any action, inaction, delay, failure to require performance or
+course of conduct shall operate as, or evidence, an amendment, supplement or
+waiver or have any other effect on any Loan Document.  Any waiver granted shall
+be limited to the specific circumstance expressly described in it, and shall not
+apply to any subsequent or other circumstance, whether similar or dissimilar, or
+give rise to, or evidence, any obligation or commitment to grant any further
+waiver.  The Loan Documents represent the entire agreement about this subject
+matter and supersede prior negotiations or agreements.  All prior agreements,
+understandings, representations, warranties, and negotiations between the
+parties about the subject matter of the Loan Documents merge into the Loan
+Documents.  In the event any provision of any other Loan Document is
+inconsistent with the provisions of this Agreement, the provisions of this
+Agreement shall exclusively control.
+
+12.8Counterparts.  This Agreement may be executed in any number of counterparts
+and by different parties on separate counterparts, each of which, when executed
+and delivered, is an original, and all taken together, constitute one Agreement.
+
+12.9Confidentiality. Agent and each Lender agrees to maintain the
+confidentiality of Information (as defined below), except that Information may
+be disclosed (a) to Agent and/or any Lender’s subsidiaries or Affiliates, and
+their respective employees, directors, investors, potential investors, agents,
+attorneys, accountants and other professional advisors (collectively,
+“Representatives” and, together with Agent and the Lenders, collectively,
+“Lender Entities”) provided that such Representatives shall agree to be bound by
+the confidentiality provisions or
+
+-25-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+agreements substantially the same as those set forth in this Section 13.9; (b)
+to prospective transferees, assignees, credit providers or purchasers of any of
+Agent’s or Lenders’ interests under or in connection with this Agreement and
+their Representatives (provided, however, Agent and the Lenders shall use their
+best efforts to obtain any such prospective transferee’s, assignee’s, credit
+provider’s, or purchaser’s or their Representatives’ agreement to the terms of
+this provision); (c) as required by law, regulation, subpoena, or other order;
+(d) to Agent’s or any Lender’s regulators or as otherwise required in connection
+with Agent’s or any Lender’s examination or audit; (e) as Agent or any Lender
+considers appropriate in exercising remedies under the Loan Documents; and (f)
+to third-party service providers of Agent and/or any Lender so long as such
+service providers have executed a confidentiality agreement with Agent or the
+Lenders, as applicable, with terms no less restrictive than those contained
+herein. The term “Information” means all information received from Borrower
+regarding Borrower or its business, in each case other than information that is
+either: (i) in the public domain or in Agent’s or any Lender’s possession when
+disclosed to Agent or such Lender, or becomes part of the public domain (other
+than as a result of its disclosure by Agent or a Lender in violation of this
+Agreement) after disclosure to Agent and/or the Lenders; or (ii) disclosed to
+Agent and/or a Lender by a third party, if Agent or such Lender, as applicable,
+does not know that the third party is prohibited from disclosing the
+information.
+
+Lender Entities may use anonymous forms of confidential information for
+aggregate datasets, for analyses or reporting, and for any other uses not
+expressly prohibited in writing by Borrower. The provisions of the immediately
+preceding sentence shall survive the termination of this Agreement.
+
+12.10Right of Setoff.   Borrower hereby grants to Agent, for the ratable benefit
+of the Lenders, a Lien, security interest, and a right of setoff as security for
+all Obligations to Agent and the Lenders, whether now existing or hereafter
+arising upon and against all deposits, credits, collateral and property, now or
+hereafter in the possession, custody, safekeeping or control of Agent or any
+entity under the control of Agent (including a subsidiary of Agent) or in
+transit to any of them.  At any time after the occurrence and during the
+continuance of an Event of Default, without demand or notice, Agent or any
+Lender may setoff the same or any part thereof and apply the same to any
+liability or obligation of Borrower even though unmatured and regardless of the
+adequacy of any other collateral securing the Obligations.  ANY AND ALL RIGHTS
+TO REQUIRE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT
+TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS
+RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF
+BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
+
+12.11Electronic Execution of Documents.  The words “execution,” “signed,”
+“signature” and words of like import in any Loan Document 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 and enforceability as a
+manually executed signature or the use of a paper-based recordkeeping systems,
+as the case may be, to the extent and as provided for in any applicable law,
+including, without limitation, any state law based on the Uniform Electronic
+Transactions Act.
+
+12.12Captions.  The headings used in this Agreement are for convenience only and
+shall not affect the interpretation of this Agreement.
+
+12.13Construction of Agreement.  The parties mutually acknowledge that they and
+their attorneys have participated in the preparation and negotiation of this
+Agreement.  In cases of uncertainty this Agreement shall be construed without
+regard to which of the parties caused the uncertainty to exist.
+
+12.14Relationship.  The relationship of the parties to this Agreement is
+determined solely by the provisions of this Agreement.  The parties do not
+intend to create any agency, partnership, joint venture, trust, fiduciary or
+other relationship with duties or incidents different from those of parties to
+an arm’s-length contract.
+
+12.15Third Parties.  Nothing in this Agreement, whether express or implied, is
+intended to: (a) confer any benefits, rights or remedies under or by reason of
+this Agreement on any persons other than the express parties to it and their
+respective permitted successors and assigns; (b) relieve or discharge the
+obligation or liability of any person not an express party to this Agreement; or
+(c) give any person not an express party to this Agreement any right of
+subrogation or action against any party to this Agreement.
+
+-26-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+12.16Patriot Act.  Each Lender hereby notifies Borrower that pursuant to the
+requirements of the USA PATRIOT Act, it is required to obtain, verify and record
+information that identifies Borrower and each of its Subsidiaries, which
+information includes the names and addresses of Borrower and each of its
+Subsidiaries and other information that will allow Lender, as applicable, to
+identify Borrower and each of its Subsidiaries in accordance with the USA
+PATRIOT Act.
+
+13DEFINITIONS
+
+13.1Definitions.  As used in the Loan Documents, the word “shall” is mandatory,
+the word “may” is permissive, the word “or” is not exclusive, the words
+“includes” and “including” are not limiting, the singular includes the plural,
+and numbers denoting amounts that are set off in brackets are negative.  As used
+in this Agreement, the following capitalized terms have the following meanings:
+
+“Account” is, as to any Person, any “account” of such Person as “account” is
+defined in the Code with such additions to such term as may hereafter be made,
+and includes, without limitation, all accounts receivable and other sums owing
+to such Person.
+
+“Account Debtor” is any “account debtor” as defined in the Code with such
+additions to such term as may hereafter be made.
+
+“Acquisition” is (a) the purchase or other acquisition by Borrower or any of its
+Subsidiaries of all or substantially all of the assets of any other Person, or
+(b) the purchase or other acquisition (whether by means of merger,
+consolidation, or otherwise) by Borrower or any of its Subsidiaries of all or
+substantially all of the stock or other equity interest of any other Person.
+
+“Affiliate” is, with respect to any Person, each other Person that owns or
+controls directly or indirectly the Person, any Person that controls or is
+controlled by or is under common control with the Person, and each of that
+Person’s senior executive officers, directors, partners and, for any Person that
+is a limited liability company, that Person’s managers and members.
+
+“Agent” is defined in the preamble hereof.
+
+“Agreement” is defined in the preamble hereof.
+
+“Authorized Signer” is any individual listed in Borrower’s Borrowing Resolution
+who is authorized to execute the Loan Documents, including any Credit Extension
+request, on behalf of Borrower.
+
+“Board” is Borrower’s board of directors.
+
+“Borrower” is defined in the preamble hereof.
+
+“Borrower’s Books” are all Borrower’s books and records including ledgers,
+federal and state tax returns, records regarding Borrower’s assets or
+liabilities, the Collateral, business operations or financial condition, and all
+computer programs or storage or any equipment containing such information.
+
+“Borrowing Resolutions” are, with respect to any Person, those resolutions
+adopted by such Person’s board of directors (and, if required under the terms of
+such Person’s Operating Documents, stockholders) and delivered by such Person to
+Agent approving the Loan Documents to which such Person is a party and the
+transactions contemplated thereby, together with a certificate executed by its
+secretary on behalf of such Person certifying (a) such Person has the authority
+to execute, deliver, and perform its obligations under each of the Loan
+Documents to which it is a party, (b) that set forth as a part of or attached as
+an exhibit to such certificate is a true, correct, and complete copy of the
+resolutions then in full force and effect authorizing and ratifying the
+execution, delivery, and performance by such Person of the Loan Documents to
+which it is a party, (c) the name(s) of the Person(s) authorized to execute the
+Loan Documents, including any Credit Extension request, on behalf of such
+Person, together with a sample of the true signature(s) of such Person(s), and
+(d) that Agent and Lenders may conclusively rely on such certificate unless
+
+-27-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+and until such Person shall have delivered to Agent and Lenders a further
+certificate canceling or amending such prior certificate.
+
+“Business Day” is any day that is not a Saturday, Sunday or a day on which Agent
+is closed.
+
+“Cash Equivalents” means (a) marketable direct obligations issued or
+unconditionally guaranteed by the United States or any agency or any State
+thereof having maturities of not more than one (1) year from the date of
+acquisition; (b) commercial paper maturing no more than one (1) year after its
+creation and having the highest rating from either Standard & Poor’s Ratings
+Group or Moody’s Investors Service, Inc.; (c) SVB’s certificates of deposit
+issued maturing no more than one (1) year after issue; and (d) money market
+funds at least ninety-five percent (95.0%) of the assets of which constitute
+Cash Equivalents of the kinds described in clauses (a) through (c) of this
+definition.
+
+“Change in Control” means (a) at any time, any “person” or “group” (as such
+terms are used in Sections 13(d) and 14(d) of the Exchange Act), shall become,
+or obtain rights (whether by means of warrants, options or otherwise) to become,
+the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)‑5 under the
+Exchange Act), directly or indirectly, of forty-nine percent (49.0%) or more of
+the ordinary voting power for the election of directors of Borrower (determined
+on a fully diluted basis) other than by the sale of Borrower’s equity securities
+in a public offering or to venture capital or private equity investors so long
+as Borrower identifies to the Agent and the Lenders the venture capital or
+private equity investors at least seven (7) Business Days prior to the closing
+of the transaction and provides to Agent and the Lenders a description of the
+material terms of the transaction; (b) during any period of twelve (12)
+consecutive months, a majority of the members of the board of directors or other
+equivalent governing body of 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; or (c) at any time, Borrower shall cease to own and control, of record and
+beneficially, directly or indirectly, one hundred percent (100.0%) of each class
+of outstanding capital stock of each Subsidiary of Borrower free and clear of
+all Liens (except Liens created by this Agreement).
+
+“Claims” is defined in Section 13.3.
+
+“Code” is the Uniform Commercial Code, as the same may, from time to time, be
+enacted and in effect in the State of California; provided, that, to the extent
+that the Code is used to define any term herein or in any Loan Document and such
+term is defined differently in different Articles or Divisions of the Code, the
+definition of such term contained in Article or Division 9 shall govern;
+provided further, that in the event that, by reason of mandatory provisions of
+law, any or all of the attachment, perfection, or priority of, or remedies with
+respect to, Agent’s Lien on any Collateral is governed by the Uniform Commercial
+Code in effect in a jurisdiction other than the State of California, the term
+“Code” shall mean the Uniform Commercial Code as enacted and in effect in such
+other jurisdiction solely for purposes of the provisions thereof relating to
+such attachment, perfection, priority, or remedies and for purposes of
+definitions relating to such provisions.
+
+“Collateral” is any and all properties, rights and assets of Borrower described
+on Exhibit A.
+
+“Collateral Account” is any Deposit Account, Securities Account, or Commodity
+Account.
+
+“Commitment” and “Commitments” means the Term Loan Commitment(s).
+
+“Commodity Account” is any “commodity account” as defined in the Code with such
+additions to such term as may hereafter be made.
+
+“Compliance Certificate” is that certain certificate in the form attached hereto
+as Exhibit B.
+
+-28-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+“Contingent Obligation” is, for any Person, any direct or indirect liability,
+contingent or not, of that Person for (a) any indebtedness, lease, dividend,
+letter of credit or other obligation of another such as an obligation, in each
+case, directly or indirectly guaranteed, endorsed, co‑made, discounted or sold
+with recourse by that Person, or for which that Person is directly or indirectly
+liable; (b) any obligations for undrawn letters of credit for the account of
+that Person; and (c) all obligations from any interest rate, currency or
+commodity swap agreement, interest rate cap or collar agreement, or other
+agreement or arrangement designated to protect a Person against fluctuation in
+interest rates, currency exchange rates or commodity prices; but “Contingent
+Obligation” does not include endorsements in the ordinary course of
+business.  The amount of a Contingent Obligation is the stated or determined
+amount of the primary obligation for which the Contingent Obligation is made or,
+if not determinable, the maximum reasonably anticipated liability for it
+determined by the Person in good faith; but the amount may not exceed the
+maximum of the obligations under any guarantee or other support arrangement.
+
+“Control Agreement” is any control agreement entered into among the depository
+institution at which Borrower maintains a Deposit Account or the securities
+intermediary or commodity intermediary at which Borrower maintains a Securities
+Account or a Commodity Account, Borrower, and Agent pursuant to which Agent
+obtains control (within the meaning of the Code) for the benefit of the Lenders
+over such Deposit Account, Securities Account, or Commodity Account.
+
+“Copyrights” are any and all copyright rights, copyright applications, copyright
+registrations and like protections in each work of authorship and derivative
+work thereof, whether published or unpublished and whether or not the same also
+constitutes a trade secret.
+
+“Credit Extension” is any Term Loan Advance or any other extension of credit by
+any Lender for Borrower’s benefit.
+
+“Default Rate” is defined in Section 2.2(b).
+
+“Defaulting Lender” is, subject to Section 10.10(b), any Lender that (a) has
+failed to (i) fund all or any portion of its Term Loan Advances within two (2)
+Business Days of the date such Term Loan Advances were required to be funded
+hereunder unless such Lender notifies Agent and Borrower in writing that such
+failure is the result of such Lender’s reasonable 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 Agent or any other Lender any other
+amount required to be paid by it hereunder within two (2) Business Days of the
+date when due, (b) has notified Borrower or Agent in writing that it does not
+intend to comply with its funding obligations hereunder, or has made a public
+statement to that effect (unless such writing or public statement relates to
+such Lender’s obligation to fund a Term Loan Advance hereunder and states that
+such position is based on such Lender’s reasonable 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 (3) Business Days
+after written request by Agent or Borrower, to confirm in writing to Agent and
+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 Agent and
+Borrower), or (d) has, or has a direct or indirect parent company that has, (i)
+become the subject of an Insolvency Proceeding, or (ii) had appointed for it a
+receiver, custodian, conservator, trustee, administrator, assignee for the
+benefit of creditors or similar Person charged with reorganization or
+liquidation of its business or assets, including the Federal Deposit Insurance
+Corporation or any other state or federal regulatory authority acting in such a
+capacity; provided that a Lender shall not be a Defaulting Lender solely by
+virtue of the ownership or acquisition of any equity interest in that Lender or
+any direct or indirect parent company thereof by a Governmental Authority so
+long as such ownership interest does not result in or provide such Lender with
+immunity from the jurisdiction of courts within the United States or from the
+enforcement of judgments or writs of attachment on its assets or permit such
+Lender (or such Governmental Authority) to reject, repudiate, disavow or
+disaffirm any contracts or agreements made with such Lender.  Any determination
+by Agent that a Lender is a Defaulting Lender under any one or more of clauses
+(a) through (d) above shall be conclusive and binding absent manifest error, and
+such Lender shall be deemed to be a Defaulting Lender (subject to Section
+10.10(b)) upon delivery of written notice of such determination to Borrower and
+each Lender.
+
+-29-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+“Deposit Account” is any “deposit account” as defined in the Code with such
+additions to such term as may hereafter be made.
+
+“Designated Deposit Account” is the account number ending 564 (last three
+digits), maintained by Borrower with SVB (provided, however, if no such account
+number is included, then the Designated Deposit Account shall be any deposit
+account of Borrower maintained with SVB as chosen by the Lenders).
+
+“Disbursement Letter” is that certain form attached hereto as Exhibit D.
+
+“Division” means, in reference to any Person which is an entity, the division of
+such Person into two (2) or more separate Persons, with the dividing Person
+either continuing or terminating its existence as part of such division,
+including, without limitation, as contemplated under Section 18 217 of the
+Delaware Limited Liability Company Act for limited liability companies formed
+under Delaware law, or any analogous action taken pursuant to any other
+applicable law with respect to any corporation, limited liability company,
+partnership or other entity.
+
+“Dollars,” “dollars” or use of the sign “$” means only lawful money of the
+United States and not any other currency, regardless of whether that currency
+uses the “$” sign to denote its currency or may be readily converted into lawful
+money of the United States.
+
+“Dollar Equivalent” is, at any time, (a) with respect to any amount denominated
+in Dollars, such amount, and (b) with respect to any amount denominated in a
+Foreign Currency, the equivalent amount therefor in Dollars as determined by
+Agent at such time on the basis of the then-prevailing rate of exchange in San
+Francisco, California, for sales of the Foreign Currency for transfer to the
+country issuing such Foreign Currency.
+
+“Draw Period” is the period of time commencing upon the occurrence of the
+Milestone Event and continuing through the earlier to occur of (a) December 31,
+2021 or (b) an Event of Default.
+
+“Effective Date” is defined in the preamble hereof.
+
+“Equipment” is all “equipment” as defined in the Code with such additions to
+such term as may hereafter be made, and includes without limitation all
+machinery, fixtures, goods, vehicles (including motor vehicles and trailers),
+and any interest in any of the foregoing.
+
+“Equity Event” means Borrower has received, after the Effective Date, but on or
+prior to December 31, 2021, unrestricted and unencumbered gross cash proceeds in
+an amount of at least Forty Million Dollars ($40,000,000.00) from the issuance
+and sale by Borrower of its equity securities to investors reasonably acceptable
+to Agent and the Lenders (other than Liens in favor of Agent for the ratable
+benefit of the Lenders under this Agreement).
+
+“ERISA” is the Employee Retirement Income Security Act of 1974, and its
+regulations.
+
+“Event of Default” is defined in Section 8.
+
+“Exchange Act” is the Securities Exchange Act of 1934, as amended.
+
+“Federal Funds Effective Rate” means, for any day, the weighted average of the
+rates on overnight federal funds transactions with members of the Federal
+Reserve System arranged by federal funds brokers, as published on the next
+succeeding Business Day by the Federal Reserve Bank of New York, or, if such
+rate is not so published for any day that is a Business Day, the average of the
+quotations for the day of such transactions received by SVB from three federal
+funds brokers of recognized standing selected by it.
+
+“Final Payment” is a payment (in addition to and not in substitution for the
+regular monthly payments of principal plus accrued interest) equal to the
+original principal amount of each Term Loan Advance extended by Lenders to
+Borrower hereunder multiplied by seven and one-half of one percent (7.50%), due
+on the earliest to occur of (a) the Term Loan Maturity Date, (b) the payment in
+full of such Term Loan Advance, (c) as required by Section 2.1.1(d) or 2.1.1(e)
+or (d) the termination of this Agreement.
+
+-30-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+“Foreign Currency” means lawful money of a country other than the United States.
+
+“Funding Date” is any date on which a Credit Extension is made to or for the
+account of Borrower which shall be a Business Day.
+
+“FX Contract” is any foreign exchange contract by and between Borrower and SVB
+under which Borrower commits to purchase from or sell to SVB a specific amount
+of Foreign Currency on a specified date.
+
+“GAAP” is generally accepted accounting principles set forth in the opinions and
+pronouncements of the Accounting Principles Board of the American Institute of
+Certified Public Accountants and statements and pronouncements of the Financial
+Accounting Standards Board or in such other statements by such other Person as
+may be approved by a significant segment of the accounting profession, which are
+applicable to the circumstances as of the date of determination.
+
+“General Intangibles” is all “general intangibles” as defined in the Code in
+effect on the date hereof with such additions to such term as may hereafter be
+made, and includes without limitation, all Intellectual Property, claims, income
+and other tax refunds, security and other deposits, payment intangibles,
+contract rights, options to purchase or sell real or personal property, rights
+in all litigation presently or hereafter pending (whether in contract, tort or
+otherwise), insurance policies (including without limitation key man, property
+damage, and business interruption insurance), payments of insurance and rights
+to payment of any kind.
+
+“Governmental Approval” is any consent, authorization, approval, order, license,
+franchise, permit, certificate, accreditation, registration, filing or notice,
+of, issued by, from or to, or other act by or in respect of, any Governmental
+Authority.
+
+“Governmental Authority” is any nation or government, any state or other
+political subdivision thereof, any agency, authority, instrumentality,
+regulatory body, court, central bank or other entity exercising executive,
+legislative, judicial, taxing, regulatory or administrative functions of or
+pertaining to government, any securities exchange and any self-regulatory
+organization.
+
+“Group Member” means Borrower and its Subsidiaries.
+
+“Guarantor” is any Person providing a Guaranty in favor of Lenders.
+
+“Guaranty” is any guarantee of all or any part of the Obligations, as the same
+may from time to time be amended, restated, modified or otherwise supplemented.
+
+“Immaterial Subsidiary” is any Subsidiary of Borrower which is not a Material
+Subsidiary.
+
+“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of
+property or services, such as reimbursement and other obligations for surety
+bonds and letters of credit, (b) obligations evidenced by notes, bonds,
+debentures or similar instruments, (c) capital lease obligations, and (d)
+Contingent Obligations.
+
+“Indemnified Person” is defined in Section 13.3.
+
+“Information” is defined in Section 13.9.
+
+“Insolvency Proceeding” is any proceeding by or against any Person under the
+United States Bankruptcy Code, or any other bankruptcy or insolvency law,
+including assignments for the benefit of creditors, compositions, extensions
+generally with its creditors, or proceedings seeking reorganization,
+arrangement, or other relief.
+
+“Intellectual Property” means, with respect to any Person, all of such Person’s
+right, title, and interest in and to the following:
+
+(a)its Copyrights, Trademarks and Patents;
+
+-31-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(b)any and all trade secrets and trade secret rights, including, without
+limitation, any rights to unpatented inventions, know-how and operating manuals;
+
+(c)any and all source code;
+
+(d)any and all design rights which may be available to such Person;
+
+(e)any and all claims for damages by way of past, present and future
+infringement of any of the foregoing, with the right, but not the obligation, to
+sue for and collect such damages for said use or infringement of the
+Intellectual Property rights identified above; and
+
+(f)all amendments, renewals and extensions of any of the Copyrights, Trademarks
+or Patents.
+
+“Inventory” is all “inventory” as defined in the Code in effect on the date
+hereof with such additions to such term as may hereafter be made, and includes
+without limitation all merchandise, raw materials, parts, supplies, packing and
+shipping materials, work in process and finished products, including without
+limitation such inventory as is temporarily out of Borrower’s custody or
+possession or in transit and including any returned goods and any documents of
+title representing any of the above.
+
+“Investment” is any beneficial ownership interest in any Person (including
+stock, partnership interest or other securities), and any loan, advance or
+capital contribution to any Person.
+
+“Key Person” is each of Borrower’s (a) Chief Executive Officer, who is Ted White
+as of the Effective Date, and (b) Chief Financial Officer, who is Brian Davis as
+of the Effective Date.  
+
+“Lender” and “Lenders” is defined in the preamble.
+
+“Lender Entities” is defined in Section 13.9.
+
+“Lender Intercreditor Agreement” is, collectively, any and all intercreditor
+agreement, master arrangement agreement or similar agreement by and between
+WestRiver and SVB, as each may be amended from time to time in accordance with
+the provisions thereof.
+
+“Lenders’ Expenses” are all of Agent’s and the Lenders’ audit fees and expenses,
+costs, and expenses (including reasonable attorneys’ fees and expenses) for
+preparing, amending, negotiating, administering, defending and enforcing the
+Loan Documents (including, without limitation, those incurred in connection with
+appeals or Insolvency Proceedings) or otherwise incurred with respect to
+Borrower.
+
+“Letter of Credit” is a standby or commercial letter of credit issued by SVB
+upon request of Borrower based upon an application, guarantee, indemnity, or
+similar agreement.
+
+“Lien” is a claim, mortgage, deed of trust, levy, charge, pledge, security
+interest or other encumbrance of any kind, whether voluntarily incurred or
+arising by operation of law or otherwise against any property.
+
+“Loan Documents” are, collectively, this Agreement and any schedules, exhibits,
+certificates, notices, and any other documents related to this Agreement, the
+Subordination Agreement, the Senior Loan Agreement, the Perfection Certificate,
+each Disbursement Letter, the Lender Intercreditor Agreement, any Control
+Agreement, any subordination agreement, any note, or notes or guaranties
+executed by Borrower or any Guarantor, and any other present or future agreement
+by Borrower and/or any Guarantor with or for the benefit of Agent and the
+Lenders in connection with this Agreement, all as amended, restated, or
+otherwise modified.
+
+“Material Adverse Change” is: (a) a material impairment in the perfection or
+priority of Agent’s, for the ratable benefit of the Lenders, Lien in the
+Collateral or in the value of such Collateral; (b) a material adverse change in
+the business, operations, or financial condition of Borrower; or (c) a material
+impairment of the prospect of repayment of any portion of the Obligations.
+
+-32-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+“Material Subsidiary” is any Subsidiary of Borrower that has assets or revenue
+or material Intellectual Property valued in excess of Five Hundred Thousand
+Dollars ($500,000.00) or is a Borrower or Guarantor hereunder.
+
+“Milestone Event” means Borrower has provided Agent and the Lenders, on or prior
+to December 31, 2021, with evidence satisfactory to Agent and each Lender, in
+Agent’s and each Lender’s sole and absolute discretion, that each of the
+following have occurred on or prior to December 31, 2021: (i) the Equity Event
+and (ii) the Revenue Event.
+
+“Obligations” are Borrower’s obligations to pay when due any debts, principal,
+interest, fees, Lenders’ Expenses, the Final Payment, the Prepayment Premium,
+and other amounts Borrower owes Agent or any Lender now or later, whether under
+this Agreement, the other Loan Documents, or otherwise, including, without
+limitation, any interest accruing after Insolvency Proceedings begin and debts,
+liabilities, or obligations of Borrower assigned to Agent and/or the Lenders,
+and to perform Borrower’s duties under the Loan Documents.
+
+“Operating Documents” are, for any Person, such Person’s formation documents, as
+certified by the Secretary of State (or equivalent agency) of such Person’s
+jurisdiction of organization on a date that is no earlier than thirty (30) days
+prior to the Effective Date, and, (a) if such Person is a corporation, its
+bylaws in current form, (b) if such Person is a limited liability company, its
+limited liability company agreement (or similar agreement), and (c) if such
+Person is a partnership, its partnership agreement (or similar agreement), each
+of the foregoing with all current amendments or modifications thereto.
+
+“Patents” means all patents, patent applications and like protections including
+without limitation improvements, divisions, continuations, renewals, reissues,
+extensions and continuations-in-part of the same.
+
+“Payment/Advance Form” is that certain form attached hereto as Exhibit C.
+
+“Payment Date” is the first (1st) calendar day of each month.
+
+“Perfection Certificate” is defined in Section 5.1.
+
+“Permitted Acquisition” or “Permitted Acquisitions” is any Acquisition by the
+Borrower, disclosed to Agent, provided that each of the following shall be
+applicable to any such Acquisition:
+
+(a)no Event of Default shall have occurred and be continuing or would result
+from the consummation of the proposed Acquisition;
+
+(b)the entity or assets acquired in such Acquisition are in the same or similar
+line of business as Borrower is in as of the date hereof or reasonably related
+thereto;
+
+(c)such transaction shall only involve an entity formed, and assets located, in
+the United States;
+
+(d)the Acquisition is approved by the Board (or equivalent control group) of all
+parties to the transaction;
+
+(e)if the Acquisition includes a merger of Borrower, Borrower shall remain a
+surviving entity after giving effect to such Acquisition; if, as a result of
+such Acquisition, a new Subsidiary of Borrower is formed or acquired, Borrower
+shall cause such Subsidiary to comply with Section 6.12, as required by Agent;
+
+(f)Borrower shall provide Agent with written notice of the proposed Acquisition
+at least thirty (30) Business Days prior to the anticipated closing date of the
+proposed Acquisition; and not less than five (5) Business Days prior to the
+anticipated closing date of the proposed Acquisition, copies of the acquisition
+agreement and all other material documents relative to the proposed Acquisition
+(or if such acquisition agreement and other material documents are not in final
+form, drafts of such acquisition agreement and other material documents;
+provided that Borrower shall deliver final forms of such acquisition agreement
+and other material documents promptly upon completion);
+
+-33-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(g)the total cash consideration, (excluding equity) for all such Acquisitions
+does not exceed Five Million Dollars ($5,000,000.00) in the aggregate for all
+such Acquisitions;
+
+(h)the resulting transaction is accretive to Borrower’s business on a
+prospective pro forma financial basis as of twelve (12) months after giving
+effect to such Acquisition;
+
+(i)no Indebtedness will be incurred, assumed, or would exist with respect to
+Borrower or its Subsidiaries as a result of the contemplated transaction, other
+than Permitted Indebtedness;
+
+(j)the Acquisition shall not constitute an Unfriendly Acquisition;  and
+
+(k)the entity or assets acquired in such Acquisition shall not be subject to any
+Lien other than (x) the first-priority Liens granted in favor of Agent, if
+applicable and (y) Permitted Liens.
+
+“Permitted Indebtedness” is:
+
+(a)
+
+Borrower’s Indebtedness to Agent and the Lenders under this Agreement and the
+other Loan Documents;
+
+(b)
+
+Indebtedness existing on the Effective Date which is shown on the Perfection
+Certificate;
+
+(c)
+
+Subordinated Debt;
+
+(d)
+
+unsecured Indebtedness to trade creditors incurred in the ordinary course of
+business;
+
+(e)
+
+Indebtedness incurred as a result of endorsing negotiable instruments received
+in the ordinary course of business;
+
+(f)
+
+Indebtedness secured by Liens permitted under clauses (a) and (c) of the
+definition of “Permitted Liens” hereunder;
+
+(g)
+
+Indebtedness in connection with the Senior Loan Agreement;
+
+(h)to the extent constituting Indebtedness, Investments permitted pursuant to
+subsection (f) of the definition of Permitted Investments;
+
+(i)Indebtedness consisting of the financing of insurance premiums;
+
+(j)
+
+other unsecured Indebtedness not otherwise permitted by Section 7.4 in an
+aggregate principal amount not to exceed Five Hundred Thousand Dollars
+($500,000.00) outstanding at any time;
+
+(k)
+
+unsecured Indebtedness in respect of guarantees, bank guarantees, surety or
+performance bonds and similar instruments issued for (i) Borrower’s account in
+the ordinary course of Borrower’s business or (ii) the account of any Subsidiary
+of Borrower in the ordinary course of Borrower’s business in a maximum aggregate
+amount not to exceed Five Hundred Thousand Dollars ($500,000.00) in order to
+provide security for: (A) workers’ compensation claims, unemployment insurance
+and other types of social security and employee health and disability benefits,
+or casualty-liability insurance, payment obligations in connection with
+self-insurance or similar requirements; and (B) tenders, completion guarantees,
+statutory obligations, surety, environmental or appeal bonds, bids, leases,
+government contracts, contracts (other than for borrowed money), performance
+bonds or other obligations of a like nature; and
+
+(l)
+
+extensions, refinancings, modifications, amendments and restatements of any
+items of Permitted Indebtedness (a) through (k) above; provided that the
+principal amount thereof is not increased or the terms thereof are not modified
+to impose more burdensome terms upon Borrower or its Subsidiary, as the case may
+be.
+
+“Permitted Investments” are:
+
+-34-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(a)
+
+Investments (including, without limitation, Subsidiaries) existing on the
+Effective Date which are shown on the Perfection Certificate;
+
+(b)
+
+(i) Investments consisting of Cash Equivalents, and (ii) any Investments
+permitted by Borrower’s investment policy, as amended from time to time,
+provided that such investment policy (and any such amendment thereto) has been
+approved in writing by Agent;
+
+(c)
+
+Investments consisting of the endorsement of negotiable instruments for deposit
+or collection or similar transactions in the ordinary course of Borrower;
+
+(d)
+
+Investments consisting of deposit accounts (but only to the extent that Borrower
+is permitted to maintain such accounts pursuant to Section 6.6 of this
+Agreement) in which Agent has a first priority perfected security interest;
+
+(e)
+
+Investments accepted in connection with Transfers permitted by Section 7.1;
+
+(f)
+
+Investments by Borrower or any Subsidiary in (i) any Subsidiary that is a
+Borrower or a secured Guarantor or (ii) in any Borrower;
+
+(g)
+
+Investments consisting of the creation of a Subsidiary for the purpose of
+consummating a merger transaction permitted by Section 7.3 of this Agreement,
+which is otherwise a Permitted Investment;
+
+(h)
+
+Investments consisting of (i) travel advances and employee relocation loans and
+other employee loans and advances in the ordinary course of business, and (ii)
+loans to employees, officers or directors relating to the purchase of equity
+securities of Borrower or its Subsidiaries pursuant to employee stock purchase
+plans or agreements approved by the Board;
+
+(i)
+
+Investments (including debt obligations) received in connection with the
+bankruptcy or reorganization of customers or suppliers and in settlement of
+delinquent obligations of, and other disputes with, customers or suppliers
+arising in the ordinary course of business;
+
+(j)
+
+Investments consisting of notes receivable of, or prepaid royalties and other
+credit extensions, to customers and suppliers who are not Affiliates, in the
+ordinary course of business; provided that this paragraph (j) shall not apply to
+Investments of Borrower in any Subsidiary;
+
+(k)
+
+joint ventures or strategic alliances in the ordinary course of Borrower’s
+business, provided that any cash investments by Borrower do not exceed Five
+Hundred Thousand Dollars ($500,000.00) in the aggregate in any fiscal year;
+
+(l)
+
+deposits made to secure the performance of leases in the ordinary course of
+business;
+
+(m)
+
+Permitted Acquisitions; and
+
+(n)
+
+other Investments not otherwise permitted by Section 7, not exceeding Five
+Hundred Thousand Dollars ($500,000.00) in the aggregate outstanding at any time.
+
+“Permitted Liens” are:
+
+(a)
+
+Liens existing on the Effective Date which are shown on the Perfection
+Certificate or arising under this Agreement and the other Loan Documents;
+
+(b)
+
+Liens for taxes, fees, assessments or other government charges or levies, either
+(i) not due and payable or (ii) being contested in good faith and for which
+Borrower maintains adequate reserves on Borrower’s Books, provided that no
+notice of any such Lien has been filed or recorded under the Internal Revenue
+Code of 1986, as amended, and the Treasury Regulations adopted thereunder;
+
+-35-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(c)
+
+purchase money Liens or capital leases (i) on Equipment acquired or held by
+Borrower incurred for financing the acquisition of the Equipment securing no
+more than Five Hundred Thousand Dollars ($500,000.00) in the aggregate amount
+outstanding, or (ii) existing on Equipment when acquired, if the Lien is
+confined to the property and improvements and the proceeds of the Equipment;
+
+(d)
+
+Liens of carriers, warehousemen, suppliers, or other Persons that are possessory
+in nature arising in the ordinary course of business so long as such Liens
+attach only to Inventory and which are not delinquent or remain payable without
+penalty or which are being contested in good faith and by appropriate
+proceedings which proceedings have the effect of preventing the forfeiture or
+sale of the property subject thereto;
+
+(e)
+
+Liens in connection with the Senior Loan Agreement;
+
+(f)
+
+leases or subleases of real property granted in the ordinary course of
+Borrower’s business (or, if referring to another Person, in the ordinary course
+of such Person’s business), and leases, subleases, non-exclusive licenses or
+sublicenses of personal property (other than Intellectual Property) granted in
+the ordinary course of Borrower’s business (or, if referring to another Person,
+in the ordinary course of such Person’s business), if the leases, subleases,
+licenses and sublicenses do not prohibit granting Agent a security interest
+therein;
+
+(g)
+
+non-exclusive licenses of Intellectual Property granted to third parties in the
+ordinary course of business, and licenses of Intellectual Property that could
+not result in a legal transfer of title of the licensed property that may be
+exclusive in respects other than territory and that may be exclusive as to
+territory only as to discreet geographical areas outside of the United States;
+
+(h)
+
+Liens arising from attachments or judgments, orders, or decrees in circumstances
+not constituting an Event of Default under Sections 8.4 and 8.7;
+
+(i)
+
+Liens in favor of other financial institutions arising in connection with
+Borrower’s deposit and/or securities accounts held at such institutions,
+provided that (i) Agent has a first priority perfected security interest in the
+amounts held in such deposit and/or securities accounts (ii) such accounts are
+permitted to be maintained pursuant to Section 6.6 of this Agreement;
+
+(j)
+
+Liens on insurance proceeds in favor of insurance companies granted solely as a
+security for financed premiums;
+
+(k)
+
+pledges and deposits made in the ordinary course of business in compliance with
+workers' compensation, unemployment insurance and other social security laws or
+regulations (including pledges of deposits securing liability for reimbursement
+or indemnity arrangements and letters of credit with respect thereto);
+
+(l)
+
+Liens to secure the performance of bids, trade contracts (other than for
+borrowed money), contracts for the purchase of property permitted hereunder,
+leases, statutory obligations, surety and appeal bonds, performance bonds and
+other obligations of a like nature, in each case, incurred in the ordinary
+course of business, not representing an obligation for borrowed money;
+
+(m)
+
+Liens arising from precautionary filings under the Code;
+
+(n)
+
+easements, rights-of-way, restrictions and other similar encumbrances incurred
+in the ordinary course of business that, in the aggregate, are not substantial
+in an amount and that do not in any case materially detract from the value of
+the property subject thereto or materially interfere with the ordinary conduct
+of the business of Borrower or any Subsidiary;
+
+(o)
+
+Liens on assets of Borrower or its Subsidiaries so long as (i) such Liens do not
+cover any property not subject to Bank’s Liens and (ii) the aggregate
+outstanding principal amount of the obligations secured thereby does not exceed
+One Hundred Thousand Dollars ($100,000.00) at any time; and
+
+-36-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+(p)
+
+Liens incurred in the extension, renewal or refinancing of the indebtedness
+secured by Liens described in (a) through (o), but any extension, renewal or
+replacement Lien must be limited to the property encumbered by the existing Lien
+and the principal amount of the indebtedness may not increase.
+
+“Person” is any individual, sole proprietorship, partnership, limited liability
+company, joint venture, company, trust, unincorporated organization,
+association, corporation, institution, public benefit corporation, firm, joint
+stock company, estate, entity or government agency.
+
+“Prepayment Premium” shall be an additional fee, payable to Agent, for the
+ratable benefit of the Lenders based on their Pro Rata Share, with respect to
+the Term Loan Advances, in an amount equal to:
+
+(a)for a prepayment of the Term Loan Advances made on or prior to the first
+(1st) anniversary of the Effective Date, three percent (3.0%) of the then
+outstanding principal amount of the Term Loan Advances immediately prior to the
+date of such prepayment;
+
+(b)for a prepayment of the Term Loan Advances made after the first (1st)
+anniversary of the Effective Date, but on or prior to the second (2nd)
+anniversary of the Effective Date, two percent (2.0%) of the then outstanding
+principal amount of the Term Loan Advances immediately prior to the date of such
+prepayment;
+
+(c)for a prepayment of the Term Loan Advances made after the second (2nd)
+anniversary of the Effective Date, but on or prior to the third (3rd)
+anniversary of the Effective Date, one percent (1.0%) of the then outstanding
+principal amount of the Term Loan Advances immediately prior to the date of such
+prepayment; and
+
+(d)for a prepayment of the Term Loan Advances made after the third (3rd)
+anniversary of the Effective Date, zero percent (0.0%) of the then outstanding
+principal amount of the Term Loan Advances immediately prior to the date of such
+prepayment.
+
+“Prime Rate” is the rate of interest per annum from time to time published in
+the money rates section of The Wall Street Journal or any successor publication
+thereto as the “prime rate” then in effect; provided that, in the event such
+rate of interest is less than zero, such rate shall be deemed to be zero for
+purposes of this Agreement; and provided further that if such rate of interest,
+as set forth from time to time in the money rates section of The Wall Street
+Journal, becomes unavailable for any reason as determined by Agent, the “Prime
+Rate” shall mean the rate of interest per annum announced by SVB as its prime
+rate in effect at its principal office in the State of California (such SVB
+announced Prime Rate not being intended to be the lowest rate of interest
+charged by SVB in connection with extensions of credit to debtors); provided
+that, in the event such rate of interest is less than zero, such rate shall be
+deemed to be zero for purposes of this Agreement.
+
+“Pro Rata Share” is, as of any date of determination, with respect to each
+Lender, a percentage (expressed as a decimal, rounded to the ninth decimal
+place) determined by dividing the outstanding principal amount of Term Loan
+Advances held by such Lender by the aggregate outstanding principal amount of
+all Term Loan Advances.
+
+“Quarterly Financial Statements” is defined in Section 6.2(c).
+
+“Registered Organization” is any “registered organization” as defined in the
+Code with such additions to such term as may hereafter be made.
+
+“Removal Effective Date” is defined in Section 10.10(d).
+
+“Repayment Schedule” means the period of time equal to twenty-four (24)
+consecutive months, which shall be reduced to eighteen (18) consecutive months,
+once the Term B Loan Advance is made.
+
+“Representatives” is defined in Section 13.9.
+
+“Requirement of Law” is as to any Person, the organizational or governing
+documents of such Person, and any law (statutory or common), treaty, rule or
+regulation or determination of an arbitrator or a court or other Governmental
+Authority, in each case applicable to or binding upon such Person or any of its
+property or to which such Person or any of its property is subject.
+
+-37-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+“Responsible Officer” is any of the Chief Executive Officer, President, Chief
+Financial Officer, and Controller of Borrower.  
+
+“Restricted License” is any material license or other agreement with respect to
+which Borrower is the licensee (a) that prohibits Borrower from granting a
+security interest in, Borrower’s interest in such license or agreement or any
+other property, or (b) for which a default under or termination of would
+interfere with the Agent’s right to sell any Collateral.
+
+“Revenue Event” means Borrower has achieved (calculated with respect to Borrower
+only and not on a consolidated basis), net revenue generated from the sale of
+Borrower’s products (excluding revenue generated with respect to licensing
+arrangements), determined in accordance with GAAP, of at least [***] Dollars
+($[***]) for any trailing six (6) month period ending no later than December 31,
+2021 (which six (6) month period shall end no earlier than the last day of the
+first (1st) calendar month ending after the Effective Date).
+
+“SEC” shall mean the Securities and Exchange Commission, any successor thereto,
+and any analogous Governmental Authority.
+
+“Securities Account” is any “securities account” as defined in the Code with
+such additions to such term as may hereafter be made.
+
+“Senior Loan Agreement” means that certain Loan and Security Agreement by and
+between Borrower and SVB dated as of March 10, 2020, (as the same has been and
+may from time to time be further amended, modified, supplemented and/or
+restated).
+
+“Senior Loan Documents” are, collectively, the Senior Loan Agreement and the
+Loan Documents as defined therein, all as amended, extended or restated form
+time to time.
+
+“Subordinated Debt” is indebtedness incurred by Borrower subordinated to all of
+Borrower’s now or hereafter indebtedness to Agent and the Lenders (pursuant to a
+subordination, intercreditor, or other similar agreement in form and substance
+satisfactory to Agent and the Lenders, entered into between Agent, the Lenders
+and the other creditor), on terms acceptable to Agent and the Lenders.
+
+“Subordination Agreement” is that certain Subordination Agreement by and among
+SVB and Bank (as such term is defined in the Senior Loan Agreement), and the
+Lenders dated as of March 10, 2020 (as the same may from time to time be
+amended, modified, supplemented and/or restated).
+
+“Subsidiary” is, as to any Person, a corporation, partnership, limited liability
+company or other entity of which shares of stock or other ownership interests
+having ordinary voting power (other than stock or such other ownership interests
+having such power only by reason of the happening of a contingency) to elect a
+majority of the board of directors or other managers of such corporation,
+partnership or other entity are at the time owned, or the management of which is
+otherwise controlled, directly or indirectly through one or more intermediaries,
+or both, by such Person.  Unless the context otherwise requires, each reference
+to a Subsidiary herein shall be a reference to a Subsidiary of Borrower.
+
+“SVB” is defined in the preamble hereof.
+
+“Term A Loan Advance” is defined in Section 2.1.1(a).
+
+“Term B Loan Advance” is defined in Section 2.1.1(a).
+
+“Term Loan Advance” and “Term Loan Advances” are each defined in Section
+2.1.1(a).
+
+“Term Loan Amortization Date” means April 1, 2022, which shall be extended until
+October 1, 2022, once the Term B Loan Advance is made.
+
+-38-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+“Term Loan Commitment” means, for any Lender, the obligation of such Lender to
+make a Term Loan Advance as and when available, up to the principal amount shown
+on Schedule 1.  “Term Loan Commitments” means the aggregate amount of such
+commitments of all Lenders.
+
+“Term Loan Commitment Percentage” means, as to any Lender at any time, the
+percentage (carried out to the fourth decimal place) of the Term Loan
+Commitments represented by such Lender’s Term Loan Commitment at such time.  The
+initial Term Loan Commitment Percentage of each Lender is set forth opposite the
+name of such Lender on Schedule 1.
+
+“Term Loan Maturity Date” is March 1, 2024.
+
+“Testing Period” is, at all times, commencing as of September 30, 2020, when
+unrestricted and unencumbered cash (other than Liens in favor of Agent for the
+ratable benefit of the Lenders under this Agreement) held in accounts in the
+name of Borrower maintained with SVB is less than two times (2x) the aggregate
+outstanding Obligations of Borrower to Lenders.
+
+“Trademarks” means any trademark and servicemark rights, whether registered or
+not, applications to register and registrations of the same and like
+protections, and the entire goodwill of the business of Borrower connected with
+and symbolized by such trademarks.
+
+“Transfer” is defined in Section 7.1.
+
+“WestRiver” is defined in the preamble hereof.
+
+[Signature page follows.]
+
+ 
+
+-39-
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+Certain information has been excluded from this agreement (indicated by “[***]”)
+because such information (i) is not material and (ii) would be competitively
+harmful if publicly disclosed.
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
+as of the Effective Date.
+
+BORROWER:
+
+VERRICA PHARMACEUTICALS INC.
+
+By: /s/ A. Brian Davis
+Name: A. Brian Davis
+Title: Chief Financial Officer
+
+AGENT:
+
+SILICON VALLEY BANK, as Agent
+
+By: /s/ Michael McMahon
+Name: Michael McMahon
+Title: Director
+
+LENDERS:
+
+SILICON VALLEY BANK, as Lender
+
+By: /s/ Michael McMahon
+Name: Michael McMahon
+Title: Director
+
+
+WESTRIVER INNOVATION LENDING FUND VIII, L.P., as Lender
+
+By: /s/ Trent Dawson
+Name:  Trent Dawson
+Title:  Chief Financial Officer
+
+[Signature Page to Mezzanine Loan and Security Agreement]
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+Schedule 1
+
+LENDERS AND COMMITMENTS
+
+ 
+
+TERM LOAN COMMITMENTS
+
+ 
+
+Term A Loan Advance
+
+Lender
+
+Term A Loan Advance Commitment
+
+Term A Loan Advance Commitment Percentage
+
+Silicon Valley Bank
+
+ 
+
+$17,500,000.00
+
+ 
+
+50.0%
+
+WestRiver Innovation Lending Fund VIII, L.P.
+
+ 
+
+$17,500,000.00
+
+ 
+
+50.0%
+
+TOTAL
+
+$35,000,000.00
+
+100.0000%
+
+ 
+
+Term B Loan Advance
+
+Lender
+
+Term B Loan Advance Commitment
+
+Term B Loan Advance Commitment Percentage
+
+Silicon Valley Bank
+
+ 
+
+$7,500,000.00
+
+ 
+
+50.0%
+
+WestRiver Innovation Lending Fund VIII, L.P.
+
+ 
+
+$7,500,000.00
+
+ 
+
+50.0%
+
+TOTAL
+
+$15,000,000.00
+
+100.0000%
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+EXHIBIT A – COLLATERAL DESCRIPTION
+
+ 
+
+The Collateral consists of all of Borrower’s right, title and interest in and to
+the following personal property:
+
+All goods, Accounts (including health-care receivables), Equipment, Inventory,
+contract rights or rights to payment of money, leases, license agreements,
+franchise agreements, General Intangibles (except as provided below), commercial
+tort claims, documents, instruments (including any promissory notes), chattel
+paper (whether tangible or electronic), cash, deposit accounts, certificates of
+deposit, fixtures, letters of credit rights (whether or not the letter of credit
+is evidenced by a writing), securities, and all other investment property,
+supporting obligations, and financial assets, whether now owned or hereafter
+acquired, wherever located; and
+
+all Borrower’s Books relating to the foregoing, and any and all claims, rights
+and interests in any of the above and all substitutions for, additions,
+attachments, accessories, accessions and improvements to and replacements,
+products, proceeds and insurance proceeds of any or all of the foregoing.
+
+Notwithstanding the foregoing, the Collateral does not include (a) any property
+to the extent that such grant of security interest is prohibited by any
+Requirement of Law of a Governmental Authority or constitutes a breach or
+default under or results in the termination of or requires any consent not
+obtained under, any contract, license, agreement, instrument or other document
+evidencing or giving rise to such property, except to the extent that such
+Requirement of Law or the term in such contract, license, agreement, instrument
+or other document providing for such prohibition, breach, default or termination
+or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or
+9-409 of the Code (or any successor provision or provisions) of any relevant
+jurisdiction or any other applicable law (including the Bankruptcy Code) or
+principles of equity; provided, however, that such security interest shall
+attach immediately at such time as such Requirement of Law is not effective or
+applicable, or such prohibition, breach, default or termination is no longer
+applicable or is waived, and to the extent severable, shall attach immediately
+to any portion of the Collateral that does not result in such consequences; (b)
+Equipment that is subject to a Lien that is otherwise permitted pursuant to
+subsection (c) of the definition of “Permitted Liens” if the holder of such Lien
+has expressly prohibited Borrower in writing from granting Liens on such
+property in favor of third parties; provided that immediately upon the
+ineffectiveness, lapse, or termination of any such provision, the term
+“Collateral” shall include, and Borrower shall be deemed to have granted a
+security interest in, all of its rights, title and interests in and to such
+property as if such provision had never been in effect; or (c) Intellectual
+Property; provided, however, the Collateral shall include all Accounts and all
+proceeds of Intellectual Property. If a judicial authority (including a U.S.
+Bankruptcy Court) would hold that a security interest in the underlying
+Intellectual Property is necessary to have a security interest in such Accounts
+and such property that are proceeds of Intellectual Property, then the
+Collateral shall automatically, and effective as of the Effective Date, include
+the Intellectual Property to the extent necessary to permit perfection of
+Agent’s, for the ratable benefit of the Lenders, security interest in such
+Accounts and such other property of Borrower that are proceeds of the
+Intellectual Property.
+
+Pursuant to the terms of a certain negative pledge arrangement with Agent and
+the Lenders, Borrower has agreed not to encumber any of its Intellectual
+Property without Agent and the Lenders’ prior written consent.  
+
+ 
+
+ 
+
+ 
+
+ 
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+EXHIBIT B
+
+COMPLIANCE CERTIFICATE
+
+Date:  
+
+ 
+
+TO:SILICON VALLEY BANK, as Agent, SVB, and WESTRIVER INNOVATION LENDING FUND
+VIII, L.P., as Lender
+
+FROM:  VERRICA PHARMACEUTICALS INC.
+
+The undersigned authorized officer of VERRICA PHARMACEUTICALS INC. (“Borrower”)
+certifies that under the terms and conditions of the Loan and Security Agreement
+among Borrower, SVB, and WestRiver (the “Loan Agreement”), (1) Borrower is in
+complete compliance for the period ending _______________ with all required
+covenants except as noted below, (2) there are no Events of Default, (3) all
+representations and warranties in the Agreement are true and correct in all
+material respects on this date except as noted below; provided, however, that
+such materiality qualifier shall not be applicable to any representations and
+warranties that already are qualified or modified by materiality in the text
+thereof; and provided, further that those representations and warranties
+expressly referring to a specific date shall be true, accurate and complete in
+all material respects as of such date, (4) Borrower, and each of its
+Subsidiaries, has timely filed all required tax returns and reports, and
+Borrower has timely paid all foreign, federal, state and local taxes,
+assessments, deposits and contributions owed by Borrower except as otherwise
+permitted pursuant to the terms of Section 5.8 of the Agreement, and (5) no
+Liens have been levied or claims made against Borrower or any of its
+Subsidiaries relating to unpaid employee payroll or benefits of which Borrower
+has not previously provided written notification to Agent.  Attached are the
+required documents supporting the certification.  The undersigned certifies that
+these are prepared in accordance with GAAP consistently applied from one period
+to the next except as explained in an accompanying letter or footnotes.  The
+undersigned acknowledges that no borrowings may be requested at any time or date
+of determination that Borrower is not in compliance with any of the terms of the
+Agreement, and that compliance is determined not just at the date this
+certificate is delivered.  Capitalized terms used but not otherwise defined
+herein shall have the meanings given them in the Agreement.
+
+Please indicate compliance status by circling Yes/No under “Complies” column.
+
+ 
+
+Reporting Covenants
+
+Required
+
+Complies
+
+ 
+
+ 
+
+ 
+
+Monthly revenue, net profit and cash balance
+
+statements with Compliance Certificate
+
+Monthly within 30 days
+
+Yes   No
+
+Quarterly financial statements with
+Compliance Certificate
+
+Within 45 days of quarter end (within 90 days of quarter end for Q4)  
+
+ 
+
+Yes   No
+
+Annual financial statement with Compliance Certificate (CPA Audited)
+
+FYE within 180 days
+
+ 
+
+Yes   No
+
+10-Q Report
+
+Within 45 days of quarter end for 10-Q (within 90 days of quarter end for Q4)
+
+Yes   No
+
+Filed 10‑Q, 10‑K and 8-K
+
+Within 5 days after filing with SEC
+
+ 
+
+Yes   No
+
+Board approved projections
+
+30 days of FYE and as amended/updated
+
+Yes   No
+
+ 
+
+Financial Covenants
+
+Required
+
+Actual
+
+Complies
+
+ 
+
+ 
+
+ 
+
+ 
+
+Minimum Revenue*
+
+$                *
+
+$
+
+Yes   No
+
+* as set forth in Section 6.7
+
+As of the date of this Certificate, the following financial covenant analysis
+and information set forth in Schedule 1 attached hereto are true and accurate
+for the period indicated.
+
+Other Matters
+
+ 
+
+
+
+1
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+Have there been any amendments of or other changes to the capitalization table
+of Borrower and to the Operating Documents of Borrower or any of its
+Subsidiaries?  If yes, provide copies of any such amendments or changes with
+this Compliance Certificate.
+
+Yes
+
+No
+
+ 
+
+The following are the exceptions with respect to the certification above: (If no
+exceptions exist, state “No exceptions to note.”)
+
+---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
+
+ 
+
+ 
+
+ 
+
+VERRICA PHARMACEUTICALS INC.
+
+ 
+
+By:
+
+Name:
+
+Title:
+
+ 
+
+ 
+
+AGENT USE ONLY
+
+ 
+
+Received by: _____________________
+
+authorized signer
+
+Date: _________________________
+
+ 
+
+Verified: ________________________
+
+authorized signer
+
+Date: _________________________
+
+ 
+
+Compliance Status:Yes     No
+
+ 
+
+ 
+
+
+
+
+2
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+Schedule 1 to Compliance Certificate
+
+Financial Covenants of Borrower
+
+In the event of a conflict between this Schedule and the Loan Agreement, the
+terms of the Loan Agreement shall govern.
+
+Dated:____________________
+
+I.Minimum Revenue (Section 6.7)
+
+Required: During a Testing Period, Borrower shall achieve (calculated with
+respect to Borrower only and not on a consolidated basis) for the most recent
+calendar quarter then-ended and each calendar quarter thereafter if such Testing
+Period is still in effect, minimum net revenue, generated from the sale of
+Borrower’s products (excluding revenue generated with respect to licensing
+arrangements), determined in accordance with GAAP, measured on a trailing six
+(6) month basis, of at least:  
+
+Trailing Six (6) Month Period Ending
+
+Minimum Revenue
+
+ 
+
+September 30, 2020
+
+[***]
+
+December 31, 2020
+
+[***]
+
+March 31, 2021
+
+[***]
+
+June 30, 2021
+
+ 
+
+September 30, 2021
+
+ 
+
+December 31, 2021
+
+[***]
+
+ 
+
+[***]
+
+ 
+
+[***]
+
+.
+
+Actual:
+
+A.
+
+Minimum Revenue
+
+ 
+
+$
+
+ 
+
+Is line A equal to or greater than ________*?
+
+* As set forth above.
+
+  No, not in compliance  Yes, in compliance
+
+ 
+
+3
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+EXHIBIT C
+
+LOAN PAYMENT/ADVANCE REQUEST FORM
+
+Deadline for same day processing is Noon eastern Time
+
+ 
+
+Fax To:  Date: _____________________
+
+ 
+
+Loan Payment:   VERRICA PHARMACEUTICALS INC.
+
+ 
+
+From Account #________________________________To Account
+#__________________________________________
+
+(Deposit Account #)(Loan Account #)
+
+Principal $____________________________________and/or Interest
+$________________________________________
+
+ 
+
+Authorized Signature:Phone Number:
+
+Print Name/Title:
+
+ 
+
+Loan Advance:
+
+ 
+
+Complete Outgoing Wire Request section below if all or a portion of the funds
+from this loan advance are for an outgoing wire.
+
+ 
+
+From Account #________________________________To Account
+#__________________________________________
+
+(Loan Account #)(Deposit Account #)
+
+ 
+
+Amount of Term Loan Advance $___________________________
+
+ 
+
+All Borrower’s representations and warranties in the Mezzanine Loan and Security
+Agreement are true, correct and complete in all material respects on the date of
+the request for an advance; provided, however, that such materiality qualifier
+shall not be applicable to any representations and warranties that already are
+qualified or modified by materiality in the text thereof; and provided, further
+that those representations and warranties expressly referring to a specific date
+shall be true, accurate and complete in all material respects as of such date:
+
+ 
+
+Authorized Signature:Phone Number:
+
+Print Name/Title:
+
+ 
+
+ 
+
+Outgoing Wire Request:
+
+Complete only if all or a portion of funds from the loan advance above is to be
+wired.
+
+Deadline for same day processing is noon, Eastern Time
+
+ 
+
+Beneficiary Name: _____________________________Amount of Wire: $
+
+Beneficiary Bank: ______________________________Account Number:
+
+City and State:
+
+ 
+
+Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip,
+etc.):
+
+(For International Wire Only)
+
+Intermediary Bank: Transit (ABA) #:
+
+For Further Credit to:
+
+ 
+
+Special Instruction:
+
+ 
+
+By signing below, I (we) acknowledge and agree that my (our) funds transfer
+request shall be processed in accordance with and subject to the terms and
+conditions set forth in the agreements(s) covering funds transfer service(s),
+which agreements(s) were previously received and executed by me (us).
+
+ 
+
+Authorized Signature: ___________________________2nd Signature (if required):
+_______________________________________
+
+Print Name/Title: ______________________________Print Name/Title:
+______________________________________________
+
+Telephone #: Telephone #:
+
+ 
+
+ 
+
+ 
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+ 
+
+Exhibit D
+
+ 
+
+Form of Disbursement Letter
+
+[see attached]
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+ 
+
+DISBURSEMENT LETTER
+
+[DATE]
+
+The undersigned, being the duly elected and acting
+
+of VERRICA PHARMACEUTICALS INC., a Delaware corporation (“Borrower”), does
+hereby certify to (a) SILICON VALLEY BANK, a California corporation (“SVB”), in
+its capacity as administrative agent and collateral agent (“Agent”), (b) SILICON
+VALLEY BANK, a California corporation, as a lender, (c) WESTRIVER INNOVATION
+LENDING FUND VIII, L.P., a Delaware limited partnership (“WestRiver”), as a
+lender (SVB and WestRiver and each of the other “Lenders” from time to time a
+party hereto are referred to herein collectively as the “Lenders” and each
+individually as a “Lender”) in connection with that certain Mezzanine Loan and
+Security Agreement dated as of March 10, 2020 by and among Borrower, Agent and
+the Lenders from time to time party thereto (the “Loan Agreement”; with other
+capitalized terms used below having the meanings ascribed thereto in the Loan
+Agreement) that:
+
+1.
+
+The representations and warranties made by Borrower in Section 5 of the Loan
+Agreement and in the other Loan Documents are true and correct in all material
+respects as of the date hereof.
+
+ 
+
+2.
+
+No event or condition has occurred that would constitute an Event of Default
+under the Loan Agreement or any other Loan Document.
+
+ 
+
+3.
+
+Borrower is in compliance with the covenants and requirements contained in
+Sections 4, 6 and 7 of the Loan Agreement.
+
+ 
+
+4.
+
+All conditions referred to in Section 3 of the Loan Agreement to the making of a
+Credit Extension to be made on or about the date hereof have been satisfied or
+waived by Agent.
+
+ 
+
+5.
+
+No Material Adverse Change has occurred.
+
+ 
+
+6.
+
+The undersigned is an Authorized Signer.
+
+ 
+
+ 
+
+[Balance of Page Intentionally Left Blank]
+
+ 
+
+1
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+ 
+
+7A.
+
+The proceeds of the [Term Loan Advance] shall be disbursed as follows:
+
+ 
+
+Disbursement from SVB:
+
+ 
+
+Loan Amount
+
+$_______________
+
+Plus:
+
+ 
+
+‑‑Deposit Received
+
+$__________
+
+ 
+
+ 
+
+Less:
+
+ 
+
+‑‑Commitment Fee
+
+($__________)
+
+--Lender’s Legal Fees
+
+($_________)*
+
+ 
+
+ 
+
+Net Proceeds due from SVB:
+
+$_______________
+
+ 
+
+ 
+
+Disbursement from WestRiver:
+
+ 
+
+Loan Amount
+
+$_______________
+
+Plus:
+
+ 
+
+‑‑Deposit Received
+
+$__________
+
+ 
+
+ 
+
+Less:
+
+ 
+
+‑‑Commitment Fee
+
+($_________)
+
+ 
+
+ 
+
+Net Proceeds due from WestRiver:
+
+$_______________
+
+ 
+
+ 
+
+ 
+
+ 
+
+Loan Amount
+
+$_______________
+
+Plus:
+
+ 
+
+--Deposit Received
+
+$__________
+
+ 
+
+ 
+
+Less:
+
+ 
+
+--Commitment Fee
+
+($_________)
+
+ 
+
+ 
+
+Net Proceeds due from Agent
+
+$_____________
+
+ 
+
+ 
+
+TOTAL [TERM LOAN ADVANCE] NET PROCEEDS FROM LENDERS
+
+$_______________
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+7B.
+
+Funds from VERRICA PHARMACEUTICALS INC. (“Borrower”) Designated Deposit Account
+shall be disbursed as follows:
+
+ 
+
+SVB:
+
+ 
+
+ 
+
+Term Loan Fees
+
+$_______________
+
+Revolver Loan Fees
+
+$_______________
+
+Lender’s Legal Fees
+
+$_______________
+
+ 
+
+ 
+
+WestRiver: Designated Deposit Account:_____________________
+
+ 
+
+ 
+
+ 
+
+* Legal fees and costs are through the Effective Date.  Postclosing legal fees
+and costs, payable after the Effective Date, to be invoiced and paid
+postclosing.
+
+
+
+ 
+
+2
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+ 
+
+Term Loan Fees
+
+$_______________
+
+Revolver Loan Fees
+
+$_______________
+
+Funds due from Borrower (“Total Funds”)
+
+$_______________
+
+ 
+
+8A.
+
+The aggregate net proceeds of the [Term Loan Advance] shall be transferred to
+the Designated Deposit Account as follows:
+
+ 
+
+ 
+
+Account Name:
+
+____________________________________
+
+Bank Name:
+
+Silicon Valley Bank
+
+Bank Address:
+
+3003 Tasman Drive
+Santa Clara, California 95054
+
+Account Number:
+
+____________________________________
+
+ABA Number:
+
+____________________________________
+
+ 
+
+ 
+
+8B.
+
+Borrower authorized SVB to debit the Total Funds from the Designated Deposit
+Account set forth below:
+
+ 
+
+ 
+
+Account Name:
+
+____________________________________
+
+Bank Name:
+
+Silicon Valley Bank
+
+Bank Address:
+
+3003 Tasman Drive
+Santa Clara, California 95054
+
+Account Number:
+
+____________________________________
+
+ABA Number:
+
+____________________________________
+
+ 
+
+ 
+
+ 
+
+ 
+
+3
+
+224419752 v2
+
+--------------------------------------------------------------------------------
+
+ 
+
+Dated as of the date first set forth above.
+
+BORROWER:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+VERRICA PHARMACEUTICALS INC.
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+AGENT AND LENDER:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+SILICON VALLEY BANK
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+LENDER:
+
+ 
+
+ 
+
+SILICON VALLEY BANK
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+LENDER:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+WESTRIVER INNOVATION LENDING FUND VIII, L.P.
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+224419752 v2
+ 
+
+Exhibit 10.1
+
+ 
+
+
+
+INVESTMENT AGREEMENT
+
+ 
+
+dated as of March 29, 2020
+
+ 
+
+by and among
+
+ 
+
+EVO Payments, Inc.,
+
+ 
+
+Madison Dearborn Capital Partners VI-A, L.P.,
+
+ 
+
+Madison Dearborn Capital Partners VI Executive-A, L.P.
+
+ 
+
+and
+
+ 
+
+Madison Dearborn Capital Partners VI-C, L.P.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+TABLE OF CONTENTS
+
+ 
+
+    Page Article I PURCHASE; CLOSING 1       1.1 Purchase; Use of Proceeds 1  
+1.2 Closing 1   1.3 Closing Conditions 2         Article II REPRESENTATIONS AND
+WARRANTIES 4       2.1 Representations and Warranties of the Company 4   2.2
+Representations and Warranties of the Purchasers 10         Article III
+COVENANTS 13       3.1 Filings; Other Actions 13   3.2 Reasonable Best Efforts
+to Close 14   3.3 Authorized Class A Common Stock 14   3.4 Certain Adjustments
+14   3.5 Nasdaq Listing of Shares 14   3.6 State Securities Laws 14   3.7
+Negative Covenants 14   3.8 Information Rights 15         Article IV ADDITIONAL
+AGREEMENTS 16       4.1 Transfer Restrictions 16   4.2 Legend 17   4.3 Tax
+Matters 17   4.4 Survival 18         Article V MISCELLANEOUS 18       5.1
+Expenses 18   5.2 Amendment; Waiver 18   5.3 Counterparts; Electronic
+Transmission 18   5.4 Governing Law 19   5.5 Notices 19   5.6 Entire Agreement
+20   5.7 Assignment 21   5.8 Interpretation 21   5.9 Captions 21   5.10
+Severability 21   5.11 No Third Party Beneficiaries 21   5.12 Public
+Announcements 22   5.13 Specific Performance 22   5.14 Termination 22   5.15
+Effects of Termination 23   5.16 Non-Recourse 23   5.17 Definitions 23
+
+ 
+
+
+
+i
+
+ 
+
+ 
+
+LIST OF EXHIBITS
+
+ 
+
+Exhibit A: Form of Certificate of Designations Exhibit B: Form of Support
+Agreement Exhibit C: Form of Amended and Restated Director Nomination Agreement
+
+ 
+
+
+
+ii
+
+ 
+
+ 
+
+ 
+
+This INVESTMENT AGREEMENT, dated as of March 29, 2020 (this “Agreement”), by and
+among EVO Payments, Inc., a Delaware corporation (the “Company”), and Madison
+Dearborn Capital Partners VI-A, L.P., a Delaware limited partnership, Madison
+Dearborn Capital Partners VI Executive-A, L.P., a Delaware limited partnership,
+and Madison Dearborn Capital Partners VI-C, L.P. (each, a “Purchaser” and
+collectively, the “Purchasers”). Capitalized terms used herein are defined in
+Section 5.17 or as otherwise defined elsewhere in this Agreement, unless the
+context clearly indicates otherwise.
+
+ 
+
+RECITALS:
+
+ 
+
+WHEREAS, the Company desires to issue and sell to the Purchasers, and the
+Purchasers desire to purchase from the Company, an aggregate of 152,250 shares
+of the Company’s convertible preferred stock, par value $0.0001 per share,
+designated as “Series A Convertible Preferred Stock” (the “Preferred Stock”),
+having the terms set forth in the Certificate of Designations in substantially
+the form attached hereto as Exhibit A (the “Certificate of Designations”),
+subject to the terms and conditions set forth in this Agreement.
+
+ 
+
+NOW, THEREFORE, in consideration of the mutual covenants, representations,
+warranties and agreements contained in this Agreement, and other good and
+valuable consideration, the receipt and sufficiency of which are hereby
+acknowledged, and intending to be legally bound hereby, the parties agree as
+follows:
+
+ 
+
+Article I
+
+PURCHASE; CLOSING
+
+ 
+
+1.1              Purchase; Use of Proceeds. On the terms and subject to the
+conditions herein, on the Closing Date, the Company agrees to sell and issue to
+each Purchaser, and each Purchaser agrees to purchase from the Company that
+number of shares of Preferred Stock (the “Shares”) set forth opposite such
+Purchaser’s name on Schedule I hereto, free and clear of any Liens (other than
+Liens incurred by such Purchaser or restrictions arising under applicable
+securities Laws), at a purchase price of $985.221685 per Share (the “Per Share
+Price”). The aggregate purchase price for the Shares shall be equal to
+$150,000,000.04 (the number of Shares multiplied by the Per Share Price) (the
+“Purchase Price”) and the Shares shall have an aggregate Liquidation Preference
+(as defined in the Certificate of Designations) of $152,250,000.00. The Company
+will use the proceeds for (a) the repayment of a portion of the revolving credit
+facility or term loan outstanding as of the Closing under the Credit Agreement,
+(b) payment of fees and expenses incurred in connection with the transactions
+contemplated by this Agreement and (c) other general corporate purposes.
+
+ 
+
+1.2              Closing.
+
+ 
+
+(a)               The closing of the purchase by the Purchasers of the Shares
+pursuant to this Agreement (the “Closing”) shall be held at the offices of
+Latham & Watkins LLP, 330 N. Wabash Avenue, Chicago, Illinois, 60611 at 10:00
+a.m. Chicago, Illinois time, on the first business day following the
+satisfaction or waiver of the conditions set forth in Section 1.3 (other than
+those conditions that by their nature are to be satisfied at the Closing, but
+subject to their satisfaction); provided, that unless agreed to in writing by
+the Purchasers and the Company, in no event shall the Closing occur on or prior
+to April 20, 2020 (the date on which the Closing actually occurs, the “Closing
+Date”).
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+(b)               Subject to the satisfaction or waiver on or prior to the
+Closing Date of the applicable conditions to the Closing in Section 1.3, at the
+Closing:
+
+ 
+
+(1)               the Company will deliver, or cause to be delivered, to each
+Purchaser (i) evidence reasonably satisfactory to such Purchaser of the issuance
+of the Shares in the name of such Purchaser by book entry on the stock ledger of
+the Company (or, if Shares are to be represented in certificated form, a
+certificate representing the Shares), (ii) the executed Amended and Restated
+Director Nomination Agreement, in the form attached hereto as Exhibit C (the
+“A&R Nomination Agreement”) and (iii) all other documents, instruments and
+writings required to be delivered by the Company to such Purchaser pursuant to
+this Agreement; and
+
+ 
+
+(2)               each Purchaser (severally and not jointly) will deliver or
+cause to be delivered (i) to a bank account designated by the Company in writing
+at least two (2) business days prior to the Closing Date, the portion of the
+Purchase Price set forth opposite such Purchaser’s name on Schedule I hereto by
+wire transfer of immediately available funds, (ii) the executed A&R Nomination
+Agreement and (iii) all other documents, instruments and writings required to be
+delivered by such Purchaser to the Company pursuant to this Agreement.
+
+ 
+
+(c)               All deliveries at the Closing will be deemed to occur
+simultaneously.
+
+ 
+
+1.3              Closing Conditions.
+
+ 
+
+(a)               The obligation of each Purchaser, on the one hand, and the
+Company, on the other hand, to effect the Closing is subject to the satisfaction
+or written waiver by such Purchaser and the Company as of the Closing of the
+following condition: no temporary restraining order, preliminary or permanent
+injunction or other judgment or order shall have been issued by any Governmental
+Entity, and no Law shall be in effect restraining, enjoining, making illegal or
+otherwise prohibiting the consummation of the transactions contemplated by this
+Agreement; provided, however, that the party claiming such failure of condition
+shall have used its reasonable best efforts to prevent the entry of any such
+injunction or order and to appeal as promptly as possible any injunction or
+other order that may be entered.
+
+ 
+
+(b)               The obligation of each Purchaser to effect the Closing is also
+subject to the satisfaction or written waiver by such Purchaser as of the
+Closing of the following conditions:
+
+ 
+
+(1)               (i) the representations and warranties of the Company set
+forth in Section 2.1 hereof (other than Sections 2.1(a)(1), 2.1(b), 2.1(c)(1),
+2.1(d), 2.1(e), 2.1(g)) shall be true and correct (disregarding all
+qualifications or limitations as to materiality or Company Material Adverse
+Effect) as of the date of this Agreement and as of the Closing Date as though
+made on and as of such date (except to the extent that such representation or
+warranty speaks to an earlier date, in which case such representation or
+warranty shall be true and correct as of such earlier date), except where the
+failure of such representations and warranties to be so true and correct,
+individually or in the aggregate, has not and would not be reasonably expected
+to have a Company Material Adverse Effect and (ii) the representations and
+warranties of the Company set forth in Sections 2.1(a)(1), 2.1(b), 2.1(c)(1),
+2.1(d), 2.1(e) and 2.1(g) shall be true and correct in all material respects as
+of the date of this Agreement and as of the Closing Date as though made on and
+as of such date;
+
+ 
+
+
+
+2
+
+ 
+
+ 
+
+(2)               the Company shall have performed and complied with in all
+material respects all obligations required to be performed and complied with by
+it pursuant to this Agreement at or prior to the Closing;
+
+ 
+
+(3)               such Purchaser shall have received a certificate signed on
+behalf of the Company by a duly authorized Person certifying to the effect that
+the conditions set forth in Sections 1.3(b)(1) and (2) have been satisfied;
+
+ 
+
+(4)               the Company shall have delivered executed support agreements
+substantially in the form attached hereto as Exhibit B (the “Support
+Agreements”) with respect to at least 22% of the voting power of the Company’s
+outstanding capital stock;
+
+ 
+
+(5)               the Company shall have taken all actions pursuant to that
+certain Second Amended and Restated Limited Liability Company Agreement of EVO
+InvestCo, LLC, dated as of May 22, 2018 (as amended from time to time, the
+“InvestCo LLC Agreement”) and received all consents and documentation (including
+any amendment to the InvestCo LLC Agreement) as required to comply with Sections
+3.02 and 3.04 of the InvestCo LLC Agreement in a manner reasonably satisfactory
+to such Purchaser;
+
+ 
+
+(6)               the Company shall have filed the Certificate of Designations
+with the Secretary of State of the state of Delaware on or prior to the Closing,
+which shall continue to be in full force and effect as of the Closing;
+
+ 
+
+(7)               the Company and the requisite stockholders of the Company
+party to that certain Registration Rights Agreement, dated as of May 22, 2018
+(as amended from time to time, the “Registration Rights Agreement”) shall have
+executed and delivered an amendment to the Registration Rights Agreement in a
+form reasonably satisfactory to the Purchasers to permit each Purchaser to join
+the Registration Rights Agreement as a “Stockholder” and as “MDP” thereunder;
+and
+
+ 
+
+(8)            ��  the shares of Class A Common Stock issuable upon conversion of
+the Shares shall have been approved for listing on the Nasdaq Global Market
+(“Nasdaq”), subject to official notice of issuance.
+
+ 
+
+(c)               The obligation of the Company to effect the Closing is also
+subject to the satisfaction or written waiver by the Company as of the Closing
+of the following conditions:
+
+ 
+
+(1)               (i) the representations and warranties of each Purchaser set
+forth in Section 2.2 hereof (other than Sections 2.2(a), 2.2(b)(1) and 2.2(c))
+shall be true and correct (disregarding all qualifications or limitations as to
+materiality) as of the date of this Agreement and as of the Closing Date as
+though made on and as of such date (except to the extent that such
+representation or warranty speaks of an earlier date, in which case such
+representation or warranty shall be true and correct as of such earlier date),
+except where the failure of such representations and warranties to be so true
+and correct, individually or in the aggregate, have not prevented or materially
+delayed or would not reasonably be expected to prevent or materially delay the
+consummation of the transactions contemplated by this Agreement and (ii) the
+representations and warranties of each Purchaser set forth in Sections 2.2(a),
+2.2(b)(1) and 2.2(c) shall be true and correct in all material respects as of
+the date of this Agreement and as of the Closing Date as though made on and as
+of such date;
+
+ 
+
+
+
+3
+
+ 
+
+ 
+
+(2)               each Purchaser shall have performed and complied with in all
+material respects all obligations required to be performed and complied with by
+it pursuant to this Agreement at or prior to the Closing;
+
+ 
+
+(3)               the Company shall have received a certificate signed on behalf
+of each Purchaser by a duly authorized Person certifying to the effect that the
+conditions set forth in Sections 1.3(c)(1) and (2) have been satisfied; and
+
+ 
+
+(4)               Each Purchaser shall have delivered to the Company a duly
+executed, valid, accurate and properly completed Internal Revenue Service Form
+W-9 certifying that the Purchaser is a U.S. person and that such Purchaser is
+not subject to backup withholding.
+
+ 
+
+Article II
+
+REPRESENTATIONS AND WARRANTIES
+
+ 
+
+2.1              Representations and Warranties of the Company. Except as set
+forth (x) in SEC Documents filed or furnished prior to the date of this
+Agreement (including any exhibits thereto and excluding any disclosures set
+forth in any risk factor section or any “forward looking statements” within the
+meaning of the Securities Act of 1933, as amended (the “Securities Act”) or the
+Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or (y) in a
+correspondingly identified schedule attached hereto (provided that any such
+disclosure shall be deemed to be disclosed with respect to each other
+representation and warranty to which the relevance of such exception is
+reasonably apparent on the face of such disclosure), the Company represents and
+warrants to each Purchaser, as of the date hereof and as of the Closing Date
+(except to the extent made only as of a specified date in which case as of such
+date), that:
+
+ 
+
+(a)               Organization and Authority.
+
+ 
+
+(1)               The Company (i) is a corporation duly organized and validly
+existing under the laws of the state of Delaware, (ii) has all requisite
+corporate power and authority to own its properties and conduct its business as
+presently conducted and (iii) is duly qualified to do business and is in good
+standing in all jurisdictions where its ownership or leasing of property or the
+conduct of its business requires it to be so qualified, except, in the case of
+this clause (iii), where failure to be so qualified or in good standing,
+individually or in the aggregate, has not and would not reasonably be expected
+to have a Company Material Adverse Effect. True and accurate copies of the
+Amended and Restated Certificate of Incorporation and Amended and Restated
+Bylaws of the Company (as amended or modified from time to time prior to the
+date hereof, the “Certificate of Incorporation”) or amended and restated bylaws
+of the Company (as amended or modified from time to time prior to the date
+hereof, the “Bylaws”), each as in effect, have been made available to the
+Purchasers prior to the date hereof.
+
+ 
+
+
+
+4
+
+ 
+
+ 
+
+(2)               Each of the Company’s Significant Subsidiaries (as defined in
+Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the
+“SEC”)) (i) is duly organized and validly existing under the Laws of its
+jurisdiction of organization, (ii) has all requisite corporate or other
+applicable entity power and authority to own its properties and conduct its
+business as presently conducted and (iii) is duly qualified to do business and
+is in good standing in all jurisdictions where its ownership or leasing of
+property or the conduct of its business requires it to be so qualified, except,
+in the case of this clause (iii), where failure to be so qualified or in good
+standing, individually or in the aggregate, has not and would not reasonably be
+expected to have a Company Material Adverse Effect.
+
+ 
+
+(b)               Capitalization.
+
+ 
+
+(1)               The authorized capital stock of the Company consists of
+200,000,000 shares of Class A Common Stock, par value $0.0001 per share (the
+“Class A Common Stock”), 40,000,000 shares of Class B Common Stock, par value
+$0.0001 per share (the “Class B Common Stock”), 4,000,000 shares of Class C
+Common Stock, par value $0.0001 per share (the “Class C Common Stock”),
+32,000,000 shares of Class D Common Stock, par value $0.0001 per share (the
+“Class D Common Stock” and, together with the Class A Common Stock, Class B
+Common Stock and Class C Common Stock, the “Common Stock”) and 10,000,000 shares
+of Preferred Stock. As of the close of business on March 27, 2020, (i)
+41,356,067 shares of Class A Common Stock were issued and outstanding, of which
+4,791 were restricted stock awards subject to forfeiture restrictions, (ii)
+34,163,538 shares of Class B Common Stock were issued and outstanding, (iii)
+2,317,955 shares of Class C Common Stock were issued and outstanding, (iv)
+4,339,978 shares of Class D Common Stock were issued and outstanding, (v) no
+shares of Common Stock were held in the treasury of the Company or by a Company
+Subsidiary, (vi) 1,426,318 shares of Class A Common Stock were reserved for
+issuance under a Plan, (vii) 4,801,595 shares of Class A Common Stock were
+subject to outstanding options to purchase Common Stock (the “Company Options”),
+(viii) 1,237,486 shares of Class A Common Stock were available for issuance upon
+the vesting of the Company’s outstanding restricted stock unit awards (the
+“Company RSUs”), and (ix) and none of the shares of Preferred Stock were issued
+and outstanding. Since March 27, 2020, no other shares of Common Stock or
+Preferred Stock have been issued other than shares of Class A Common Stock
+issued in respect of the exercise of Company Options or settlement of Company
+RSUs in the ordinary course of business.
+
+ 
+
+(2)               All outstanding shares of Common Stock are duly authorized,
+validly issued, fully paid and nonassessable, and are not subject to and were
+not issued in violation of any preemptive or similar right, purchase option,
+call or right of first refusal or similar right. Except as set forth in Section
+2.1(b)(1), the Company has not issued any securities or right to purchase
+securities of the Company (including any options, warrants or other rights,
+agreements, arrangements or commitments of any character or any securities
+convertible into or exchangeable for any capital stock or other Equity Interests
+of the Company). Except as provided in the Transaction Documents, there are no
+outstanding contractual obligations of the Company or any of its Subsidiaries
+(i) restricting the transfer of, (ii) affecting the voting rights of, (iii)
+requiring the sale, issuance, repurchase, redemption or disposition of, or
+containing any right of first refusal with respect to, (iv) requiring the
+registration for sale of, or (v) granting any preemptive or antidilutive right,
+with respect to any shares of capital stock of, or other Equity Interests in,
+the Company or any of the Company Subsidiaries. The Company does not have
+outstanding shareholder purchase rights or “poison pill” or any similar
+arrangement in effect.
+
+ 
+
+
+
+5
+
+ 
+
+ 
+
+(3)               Each outstanding share of capital stock of or other Equity
+Interest in each Company Subsidiary is duly authorized, validly issued, fully
+paid, nonassessable and free of preemptive rights and is owned, beneficially and
+of record, by the Company or one or more of its wholly-owned Subsidiaries free
+and clear of all Liens, except, in each case, where such failure, individually
+or in the aggregate, has not and would not reasonably be expected to have a
+Company Material Adverse Effect. No bonds, debentures, notes or other
+indebtedness having the right to vote (or convertible into or exchangeable for,
+securities having the right to vote) on any matters on which the shareholders of
+the Company may vote are issued.
+
+ 
+
+(c)               Authorization.
+
+ 
+
+(1)               The Company has the corporate power and authority to enter
+into this Agreement and the other Transaction Documents and to carry out its
+obligations hereunder and thereunder. The execution, delivery and performance of
+this Agreement and the other Transaction Documents by the Company and the
+consummation of the transactions contemplated hereby and thereby have been duly
+authorized by the board of directors of the Company (the “Board of Directors”),
+including by unanimous approval of an independent special committee of the Board
+of Directors established in connection with the transactions contemplated by
+this Agreement. This Agreement has been, and (as of the Closing) the other
+Transaction Documents will be, duly and validly executed and delivered by the
+Company and, assuming due authorization, execution and delivery by each
+Purchaser, this Agreement is, and (as of the Closing) each of the other
+Transaction Documents will be, a valid and binding obligation of the Company
+enforceable against the Company in accordance with its terms (except as
+enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
+moratorium, fraudulent transfer and similar Laws of general applicability
+relating to or affecting creditors’ rights or by general equity principles). No
+other corporate proceedings are necessary for the execution and delivery by the
+Company of this Agreement or the other Transaction Documents, the performance by
+it of its obligations hereunder or thereunder or the consummation by it of the
+transactions contemplated hereby or thereby.
+
+ 
+
+(2)               Neither the execution and delivery by the Company of this
+Agreement or the other Transaction Documents, nor the consummation of the
+transactions contemplated hereby or thereby, nor compliance by the Company with
+any of the provisions hereof or thereof (including the rights of the Shares to
+convert into shares of Class A Common Stock), will (i) require notice, consent
+or approval pursuant to, violate, conflict with, or result in a breach of any
+provision of, or constitute a default (or an event which, with notice or lapse
+of time or both, would constitute a default) under, or result in the termination
+of, or accelerate the performance required by, or result in a right of
+termination or acceleration of, or result in the creation of any Lien upon any
+of the properties or assets of the Company or any Company Subsidiary under any
+of the terms, conditions or provisions of (A) the Certificate of Incorporation
+or the Bylaws or the certificate of incorporation, charter, bylaws or other
+governing instrument of any Company Subsidiary or (B) any note, bond, mortgage,
+indenture, deed of trust, license, lease, agreement or other instrument or
+obligation to which the Company or any Company Subsidiary is a party or by which
+it may be bound, or to which the Company or any Company Subsidiary or any of the
+properties or assets of the Company or any Company Subsidiary may be subject, or
+(ii) violate any law, statute, ordinance, rule, regulation, permit, franchise or
+any judgment, ruling, order, writ, injunction or decree applicable to the
+Company or any Company Subsidiary or any of their respective properties or
+assets, except in the case of clauses (i)(B) and (ii) for such violations,
+conflicts and breaches as would not, individually or in the aggregate,
+reasonably be expected to have a Company Material Adverse Effect.
+
+ 
+
+
+
+6
+
+ 
+
+ 
+
+(3)               Other than (i) the securities or blue sky laws of the various
+states of the United States, (ii) the filing of one or more Forms 8-K and (iii)
+the listing on the Nasdaq of the shares of Class A Common Stock issuable upon
+the conversion of the Shares, no notice to, registration, declaration or filing
+with, exemption or review by, or authorization, order, consent or approval of
+any Governmental Entity or stock exchange, nor expiration or termination of any
+statutory waiting period, is necessary for the execution or delivery by the
+Company of this Agreement or the other Transaction Documents or the consummation
+by the Company of the transactions contemplated by this Agreement or the other
+Transaction Documents, except, in the case of any such matters arising in
+respect of a non-United States Governmental Entity or Law, as would not,
+individually or in the aggregate, reasonably be expected to have a Company
+Material Adverse Effect.
+
+ 
+
+(d)               Sale of Securities. Assuming the accuracy of the Purchasers’
+representations in Section 2.2, the offer and sale of the Shares is exempt from
+the registration and prospectus delivery requirements of the Securities Act and
+the rules and regulations promulgated thereunder.
+
+ 
+
+(e)               Status of Securities. The Shares to be issued pursuant to this
+Agreement and the shares of Class A Common Stock to be issued upon conversion of
+the Shares have been duly authorized by all necessary corporate action of the
+Company. When issued and sold against receipt of the consideration therefor as
+provided in this Agreement or the Certificate of Designations, the Shares will
+be validly issued, fully paid and nonassessable, will not be subject to
+preemptive rights of any other shareholder of the Company, and will effectively
+vest in the Purchasers good title to all such securities, free and clear of all
+Liens, except restrictions imposed by the Securities Act and any applicable
+state, foreign or other securities Laws. Upon any conversion of any Shares into
+shares of Class A Common Stock pursuant to the terms of the Certificate of
+Designations, such shares of Class A Common Stock issued upon such conversion
+will be validly issued, fully paid and nonassessable, and will not be subject to
+preemptive rights of any other shareholder of the Company, and will effectively
+vest in the Purchasers good title to all such securities, free and clear of all
+Liens, except restrictions imposed by the Securities Act and any applicable
+state, foreign or other securities Laws. The shares of Class A Common Stock to
+be issued upon any conversion of the Shares have been duly reserved for such
+issuance.
+
+ 
+
+
+
+7
+
+ 
+
+ 
+
+(f)                SEC Documents; Financial Statements.
+
+ 
+
+(1)               The Company has filed, on a timely basis, all required
+reports, proxy statements, forms, and other documents with the SEC since April
+1, 2018 (collectively, the “SEC Documents”). Each of the SEC Documents, as of
+its respective filing date complied in all material respects with the
+requirements of the Securities Act and the Exchange Act, as the case may be, and
+the rules and regulations of the SEC promulgated thereunder applicable to such
+SEC Documents, and, except to the extent that information contained in any SEC
+Document has been revised or superseded by a later filed SEC Document filed and
+publicly available prior to the date of this Agreement, none of the SEC
+Documents contained any untrue statement of a material fact or omitted to state
+a material fact required to be stated therein or necessary in order to make the
+statements therein, in light of the circumstances under which they were made,
+not misleading.
+
+ 
+
+(2)               The Company (i) has implemented and maintains disclosure
+controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act)
+that are reasonably designed to ensure that material information (both financial
+and non-financial) relating to the Company, including its consolidated
+Subsidiaries, is made known to the individuals responsible for the preparation
+of the Company’s filings with the SEC and (ii) has disclosed, based on its most
+recent evaluation prior to the date of this Agreement, to the Company’s outside
+auditors and the Board of Director’s audit committee (A) any significant
+deficiencies and material weaknesses in the design or operation of internal
+controls over financial reporting (as defined in Rule 13a-15(f) under the
+Exchange Act) that are reasonably likely to adversely affect the Company’s
+ability to record, process, summarize and report financial information and (B)
+any fraud, whether or not material, that involves management or other employees
+who have a significant role in the Company’s internal controls over financial
+reporting. As of the date of this Agreement, to the Knowledge of the Company,
+there is no reason that its outside auditors and its chief executive officer and
+chief financial officer will not be able to give the certifications and
+attestations required pursuant to the rules and regulations adopted pursuant to
+Section 404 of the Sarbanes-Oxley Act of 2002, without qualification, when next
+due.
+
+ 
+
+(3)               There is no transaction, arrangement or other relationship
+between the Company and/or any of its Subsidiaries and an unconsolidated or
+other off-balance sheet entity that is required to be disclosed by the Company
+in its SEC Documents and is not so disclosed.
+
+ 
+
+(4)               The financial statements of the Company and its consolidated
+Subsidiaries included in the SEC Documents (i) complied as to form in all
+material respects with applicable accounting requirements and the published
+rules and regulations of the SEC with respect thereto, in each case as of the
+date such SEC Document was filed, and (ii) have been prepared in accordance with
+generally accepted accounting principles in the United States (“GAAP”) applied
+on a consistent basis during the periods involved (except as may be indicated in
+such financial statements or the notes thereto) and fairly present in all
+material respects the consolidated financial position of the Company and its
+consolidated Subsidiaries as of the dates thereof and the consolidated results
+of their operations and cash flows of the Company and its consolidated
+Subsidiaries for the periods then ended (subject, in the case of unaudited
+quarterly statements, to the absence of footnote disclosures and normal year-end
+audit adjustments).
+
+ 
+
+
+
+8
+
+ 
+
+ 
+
+(g)               Brokers and Finders. Except for J.P. Morgan Securities LLC
+pursuant to that certain engagement letter dated March 29, 2020, the fees and
+expenses of which will be paid by the Company on behalf of the independent
+special committee of the Board of Directors, neither the Company nor its
+Subsidiaries or any of their respective officers, directors, employees or agents
+has employed any broker or finder or incurred any liability for any financial
+advisory fees, brokerage fees, commissions or finder’s fees, and no broker or
+finder has acted directly or indirectly for the Company in connection with this
+Agreement or the transactions contemplated hereby.
+
+ 
+
+(h)               Litigation. There is no action, suit, proceeding or
+investigation pending or, to the Knowledge of the Company, threatened (including
+“cease and desist” letters or invitations to take patent license) against, nor
+any outstanding judgment, order, writ or decree against, the Company or any of
+its Subsidiaries or any of their respective assets before or by any Governmental
+Entity, which individually or in the aggregate has had, or, would reasonably be
+expected to have (including for this purpose, assuming an adverse determination
+of any such matter), a Company Material Adverse Effect. Except as has not had
+and would not reasonably be expected to have, individually or in the aggregate,
+a Company Material Adverse Effect, neither the Company nor any of its
+Subsidiaries is subject to any judgment, order or decree of any Governmental
+Entity.
+
+ 
+
+(i)                 Indebtedness. Neither the Company nor any of its
+Subsidiaries is, immediately prior to the execution and delivery of this
+Agreement, in default in the payment of any material indebtedness or in default
+under any agreement relating to its material indebtedness.
+
+ 
+
+(j)                 Listing and Maintenance Requirements. The Class A Common
+Stock is registered pursuant to Section 12(b) of the Exchange Act, and the
+Company has taken no action designed to, or which to the Knowledge of the
+Company is reasonably likely to, have the effect of, terminating the
+registration of the Class A Common Stock under the Exchange Act nor has the
+Company received as of the date of this Agreement any notification that the SEC
+is contemplating terminating such registration.
+
+ 
+
+(k)               No Additional Representations. Except for the representations
+and warranties made by the Company in this Section 2.1, neither the Company nor
+any other Person makes any express or implied representation or warranty with
+respect to the Company or any Subsidiaries or their respective businesses,
+operations, assets, liabilities, employees, employee benefit plans, conditions
+or prospects, and the Company hereby disclaims any such other representations or
+warranties. In particular, without limiting the foregoing disclaimer, neither
+the Company nor any other Person makes or has made any representation or
+warranty to the Purchasers, or any of their respective Affiliates or
+representatives, with respect to (i) any financial projection, forecast,
+estimate, budget or prospect information relating to the Company or any of its
+Subsidiaries or their respective business, or (ii) any oral or written
+information presented to the Purchasers or any of their respective Affiliates or
+representatives in the course of their due diligence investigation of the
+Company, the negotiation of this Agreement or in the course of the transactions
+contemplated hereby. Notwithstanding anything to the contrary herein, nothing in
+this Agreement shall limit the right of the Purchasers and their respective
+Affiliates to rely on the representations, warranties, covenants and agreements
+expressly set forth in this Agreement or in any certificate delivered pursuant
+hereto, nor will anything in this Agreement operate to limit any claim by any
+Purchaser or any of its respective Affiliates for actual and intentional fraud.
+
+ 
+
+
+
+9
+
+ 
+
+ 
+
+2.2              Representations and Warranties of the Purchasers. Each
+Purchaser hereby represents and warrants to the Company, as of the date hereof
+and as of the Closing Date (except to the extent made only as of a specified
+date in which case as of such date), severally and not jointly, that:
+
+ 
+
+(a)               Organization and Authority. The Purchaser (i) is duly
+organized, validly existing and in good standing under the laws of the state of
+Delaware, (ii) has all requisite limited partnership power and authority to own
+its properties and assets and conduct its business as presently conducted and
+(iii) is duly qualified to do business and is in good standing in all
+jurisdictions where its ownership or leasing of property or the conduct of its
+business requires it to be so qualified, except, in the case of this clause
+(iii), where failure to be so qualified has not and would not reasonably be
+expected to materially and adversely affect the Purchaser’s ability to perform
+its obligations under this Agreement or consummate the transactions contemplated
+hereby on a timely basis.
+
+ 
+
+(b)               Authorization.
+
+ 
+
+(1)               The Purchaser has the limited partnership power and authority
+to enter into this Agreement and the other Transaction Documents and to carry
+out its obligations hereunder and thereunder. The execution, delivery and
+performance of this Agreement and the other Transaction Documents by the
+Purchaser and the consummation of the transactions contemplated hereby and
+thereby have been duly authorized by all requisite action on the part of the
+Purchaser, and no further approval or authorization by any of its stockholders,
+partners, members or other equity owners, as the case may be, is required. This
+Agreement has been, and (as of the Closing) the other Transaction Documents will
+be, duly and validly executed and delivered by the Purchaser and assuming due
+authorization, execution and delivery by the Company, this Agreement is, and (as
+of the Closing) each of the other Transaction Documents will be, a valid and
+binding obligation of the Purchaser enforceable against the Purchaser in
+accordance with its terms (except as enforcement may be limited by applicable
+bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
+similar Laws of general applicability relating to or affecting creditors’ rights
+or by general equity principles). No other organizational proceedings are
+necessary for the execution and delivery by the Purchaser of this Agreement or
+the other Transaction Documents, the performance by it of its obligations
+hereunder or thereunder or the consummation of the transactions contemplated
+hereby or thereby.
+
+ 
+
+(2)               Neither the execution, delivery and performance by the
+Purchaser of this Agreement or the other Transaction Documents, nor the
+consummation of the transactions contemplated hereby or thereby, nor compliance
+by the Purchaser with any of the provisions hereof or thereof, will (i) require
+notice, consent or approval pursuant to, violate, conflict with, or result in a
+breach of any provision of, or constitute a default (or an event which, with
+notice or lapse of time or both, would constitute a default) under, or result in
+the termination of, or accelerate the performance required by, or result in a
+right of termination or acceleration of, or result in the creation of any Lien
+upon any of the properties or assets of the Purchaser under any of the terms,
+conditions or provisions of (A) its organizational documents or (B) any note,
+bond, mortgage, indenture, deed of trust, license, lease, agreement or other
+instrument or obligation to which the Purchaser is a party or by which it may be
+bound, or to which the Purchaser or any of the properties or assets of the
+Purchaser may be subject, or (ii) subject to compliance with the statutes and
+regulations referred to in the next paragraph, violate any law, statute,
+ordinance, rule or regulation, permit, concession, grant, franchise or any
+judgment, ruling, order, writ, injunction or decree applicable to the Purchaser
+or any of their respective properties or assets except in the case of clauses
+(i)(B) and (ii) for such violations, conflicts and breaches as would not
+reasonably be expected to prevent or materially delay the consummation of the
+transactions contemplated by this Agreement or have a material adverse effect on
+the Purchaser’s ability to fully perform its respective covenants and
+obligations under this Agreement.
+
+ 
+
+
+
+10
+
+ 
+
+ 
+
+(3)               Other than (i) the securities or blue sky Laws of the various
+states and (ii) filings pursuant to Section 13 and Section 16 of the Exchange
+Act, no notice to, registration, declaration or filing with, exemption or review
+by, or authorization, order, consent or approval of, any Governmental Entity,
+nor expiration or termination of any statutory waiting period, is necessary for
+the execution, delivery and performance by the Purchaser of this Agreement or
+the other Transaction Documents or the consummation by the Purchaser of the
+transactions contemplated by this Agreement or the other Transaction Documents.
+
+ 
+
+(c)               Financial Capability. At the Closing, the Purchaser will have
+access to available funds necessary to consummate the Closing on the terms and
+conditions contemplated by this Agreement. The Purchaser is not aware of any
+reason why the funds sufficient to fulfill its obligations under Article I
+(including paying the Purchase Price) will not be available on the Closing Date.
+
+ 
+
+(d)               Brokers and Finders. Neither the Purchaser nor its Affiliates
+or any of their respective officers, directors, employees or agents has employed
+any broker or finder for which the Company will incur any liability for any
+financial advisory fees, brokerage fees, commissions or finder’s fees in
+connection with this Agreement or the transactions contemplated hereby.
+
+ 
+
+
+
+11
+
+ 
+
+ 
+
+(e)               Purchase for Investment. The Purchaser is an accredited
+investor (as defined in Rule 501 of the Securities Act) and acknowledges that
+the Shares have not been registered under the Securities Act or under any state
+securities Laws. The Purchaser (i) acknowledges that it is acquiring the Shares
+and the shares of Class A Common Stock issuable upon the conversion of the
+Shares pursuant to an exemption from registration under the Securities Act
+solely for investment with no present intention to distribute any of the Shares
+or the shares of Class A Common Stock issuable upon the conversion of the Shares
+to any person in violation of applicable securities Laws, (ii) will not sell,
+transfer, or otherwise dispose of any of the Shares or shares of Class A Common
+Stock issuable upon the conversion of the Shares, except in compliance with this
+Agreement, the Certificate of Incorporation, the registration requirements or
+exemption provisions of the Securities Act and any other applicable securities
+Laws, (iii) has such knowledge and experience in financial and business matters
+and in investments of this type that it is capable of evaluating the merits and
+risks of its investment in the Shares and the shares of Class A Common Stock
+issuable upon the conversion of the Shares and of making an informed investment
+decision, and (iv) without prejudice to any claim of Purchaser hereunder for
+breach of the Company’s representations and warranties or for actual and
+intentional fraud, (A) has been furnished with or has had full access to all the
+information that it considers necessary or appropriate to make an informed
+investment decision with respect to the Shares and the shares of Class A Common
+Stock issuable upon the conversion of the Shares, (B) has had an opportunity to
+discuss with management of the Company the intended business and financial
+affairs of the Company and to obtain information (to the extent the Company
+possessed such information or could acquire it without unreasonable effort or
+expense) necessary to verify any information furnished to it or to which it had
+access and (C) can bear the economic risk of (1) an investment in the Shares and
+the shares of Class A Common Stock issuable upon the conversion of the Shares
+indefinitely and (2) a total loss in respect of such investment. The Purchaser
+has such knowledge and experience in business and financial matters so as to
+enable it to understand and evaluate the risks of and form an investment
+decision with respect to, its investment in the Shares and the shares of Class A
+Common Stock issuable upon the conversion of the Shares and to protect its own
+interest in connection with such investment.
+
+ 
+
+
+
+(f)                No Additional Representations. Each of Purchaser and its
+Affiliates acknowledges and agrees that, except for the representations and
+warranties contained in Section 2.1, neither the Company nor any other Person,
+makes any express or implied representation or warranty with respect to the
+Company, its Subsidiaries or their respective businesses, operations, assets,
+liabilities, employees, employee benefit plans, conditions or prospects, and the
+Company hereby disclaims any such other representations or warranties. In
+particular, without limiting the foregoing disclaimer, neither the Company nor
+any other Person, makes or has made any representation or warranty to the
+Purchaser, or any of its Affiliates or representatives, with respect to (i) any
+financial projection, forecast, estimate, budget or prospect information
+relating to the Company, its Subsidiaries or their respective business, or (ii)
+except for the representations and warranties made by the Company in Section
+2.1, any information presented to the Purchaser or any of its Affiliates or
+representatives in the course of their due diligence investigation of the
+Company, the negotiation of this Agreement or in the course of the transactions
+contemplated hereby. To the fullest extent permitted by applicable law, except
+with respect to the representations and warranties contained in Section 2.1,
+neither the Company nor any of its Subsidiaries shall have any liability to
+Purchaser or its Affiliates or representatives on any basis (including in
+contract or tort, under federal or state securities Laws or otherwise) based
+upon any other representation or warranty, either express or implied, included
+in any information or statements (or any omissions therefrom) provided or made
+available by the Company or its Subsidiaries to Purchaser or its Affiliates or
+representatives in the course of their due diligence investigation of the
+Company, the negotiation of this Agreement or in the course of the transactions
+contemplated by this Agreement. Notwithstanding the foregoing, nothing in this
+Section 2.2(f) shall limit, preclude or prohibit any claim of actual and
+intentional fraud.
+
+ 
+
+
+
+12
+
+ 
+
+ 
+
+Article III
+
+COVENANTS
+
+ 
+
+3.1              Filings; Other Actions.
+
+ 
+
+(a)               As set forth in the Certificate of Designations, the Shares
+shall be initially issued to the Purchasers without voting rights in the
+election of directors of the Company. After issuance and following the
+expiration or termination of the waiting period under the Hart-Scott-Rodino
+Antitrust Improvements Act of 1976, as amended (the “HSR Act”), the Shares shall
+gain the right to vote as Class A Common Stock of the Company, pursuant to, and
+in accordance with, the terms of the Certificate of Designations (the “Purchaser
+Election”). The Purchasers and the Company shall use all reasonable best efforts
+to obtain or submit, as the case may be, as promptly as practicable following
+the date hereof, the approvals and authorizations of, filings and registrations
+with, and notifications to, or expiration or termination of any applicable
+waiting period, under the HSR Act and other applicable antitrust Laws in
+connection with the Purchaser Election (the “Anti-Trust Approval”). Without
+limiting the foregoing, the Purchasers and the Company shall each prepare and
+file within five (5) business days after the date hereof a Notification and
+Report Form pursuant to the HSR Act in connection with the transactions
+contemplated by this Agreement. In connection with such undertakings, each of
+the Purchasers, on the one hand, and the Company, on the other hand, will
+cooperate and consult with the other and use reasonable best efforts to prepare
+and file all necessary documentation, to effect all necessary applications,
+notices, petitions, filings and other documents, and to obtain all necessary
+permits, consents, orders, approvals and authorizations of, or any exemption by,
+all third parties and Governmental Entities, necessary or advisable to
+consummate the transactions contemplated by this Agreement, including obtaining
+the Anti-Trust Approval. Each of the Purchasers and the Company shall execute
+and deliver both before and after the Closing such further certificates,
+agreements and other documents and take such other actions as the other party
+may reasonably request to consummate or implement such transactions or to
+evidence such events or matters.
+
+ 
+
+(b)               The Purchasers and the Company will have the right to review
+in advance, and to the extent practicable, each will consult with the other, in
+each case, subject to applicable Laws relating to the exchange of information,
+all the information relating to such other party, and any of their respective
+Affiliates, which appears in any filing made with, or written materials
+submitted to, any third party or any Governmental Entity in connection with the
+transactions contemplated by this Agreement, including obtaining the Anti-Trust
+Approval. In exercising the foregoing right, each of the parties hereto agrees
+to act reasonably and as promptly as practicable. Each party hereto agrees to
+keep the other party apprised of the status of matters referred to in this
+Section 3.1. Each Purchaser shall promptly furnish the Company, and the Company
+shall promptly furnish each Purchaser, to the extent permitted by Law, with
+copies of written communications received by it or its Subsidiaries from any
+Governmental Entity in respect of the transactions contemplated by this
+Agreement, including obtaining the Anti-Trust Approval. Neither the Purchasers
+nor the Company shall participate in any substantive meeting with any
+Governmental Entity in respect of the transactions contemplated by this
+Agreement, including obtaining the Anti-Trust Approval unless it consults with
+the other party in advance and, to the extent not prohibited by such
+Governmental Entity, gives the other party the opportunity to attend and
+participate therein or thereat.
+
+ 
+
+
+
+13
+
+ 
+
+ 
+
+3.2              Reasonable Best Efforts to Close. During the Pre-Closing
+Period, each of the Company and each Purchaser will use reasonable best efforts
+in good faith to take, or cause to be taken, all actions, and to do, or cause to
+be done, all things necessary under applicable Laws so as to permit consummation
+of the transactions contemplated hereby as promptly as practicable and otherwise
+to enable consummation of the transactions contemplated hereby and shall
+cooperate reasonably with the other party hereto to that end.
+
+ 
+
+3.3              Authorized Class A Common Stock. At any time that any Shares
+are outstanding, the Company shall from time to time take all lawful action
+within its control to cause the authorized share capital of the Company to
+include a number of authorized but unissued shares of Class A Common Stock equal
+to the number of shares of Class A Common Stock issuable upon the conversion of
+all Shares then issued and outstanding. All shares of Class A Common Stock
+delivered upon conversion of the Shares shall be newly issued shares or shares
+held in treasury by the Company, shall have been duly authorized and validly
+issued and shall be fully paid and nonassessable, and free and clear of any
+Liens (other than Liens created by a Purchaser or restrictions on Transfer
+arising under applicable securities Laws ).
+
+ 
+
+3.4              Certain Adjustments. During the Pre-Closing Period, the Company
+shall not affect any transaction that would have resulted in an adjustment to
+the Conversion Rate (as defined in the Certificate of Designations) pursuant to
+Section 10 of the Certificate of Designations if the Shares had been issued
+since the date hereof.
+
+ 
+
+3.5              Nasdaq Listing of Shares. To the extent it has not already done
+so, the Company shall promptly apply to cause the shares of Class A Common Stock
+issuable upon the conversion of the Shares to be approved for listing on the
+Nasdaq, subject to official notice of issuance.
+
+ 
+
+3.6              State Securities Laws. During the Pre-Closing Period, the
+Company shall use its reasonable best efforts to (a) obtain all necessary
+permits and qualifications, if any, or secure an exemption therefrom, required
+by any state or country prior to the offer and sale of Shares and the shares of
+Class A Common Stock issuable upon the conversion of the Shares and (b) cause
+such authorization, approval, permit or qualification to be effective as of the
+Closing and, as to the shares of Class A Common Stock issuable upon conversion
+of the Shares, as of any such conversion.
+
+ 
+
+3.7              Negative Covenants. During the Pre-Closing Period, the Company
+and its Subsidiaries shall operate their businesses in the ordinary course
+consistent with past practice, and, without the prior written consent of each
+Purchaser, shall not:
+
+ 
+
+(a)               declare, or make payment in respect of, any dividend or other
+distribution upon any shares of the Company;
+
+ 
+
+(b)               redeem, repurchase or acquire any shares of the Company or any
+of its Subsidiaries, other than repurchases of shares (i) approved by the Board
+of Directors and publicly announced prior to the date hereof, (ii) made in an
+“open market” transaction at the then-prevailing price or through an
+“accelerated share repurchase” on customary terms or (iii) from employees,
+officers or directors of the Company or any of its Subsidiaries in the ordinary
+course of business consistent with past practice pursuant to any of the
+Company’s agreements or plans in effect as of the date hereof;
+
+ 
+
+
+
+14
+
+ 
+
+ 
+
+(c)               authorize, issue or reclassify any capital stock, or
+securities exercisable for, exchangeable for or convertible into shares, of the
+Company or any Company Subsidiary other than (i) the authorization and issuance
+of the Shares and (ii) issuances pursuant to any of the Company’s agreements or
+plans in effect as of the date hereof of shares, or securities exercisable for,
+exchangeable for or convertible into shares, of the Company to (A) officers or
+directors of the Company or any of its Subsidiaries in the ordinary course of
+business consistent with past practice or (B) non-officer employees of the
+Company or any of its Subsidiaries;
+
+ 
+
+(d)               amend or otherwise change, or waive any provision of, the
+Certificate of Incorporation (as modified by the Certificate of Designations) or
+the Bylaws or any organizational document of any Company Subsidiary, including
+as a result of a merger, amalgamation, consolidation or other similar or
+extraordinary transaction;
+
+ 
+
+(e)               sell, assign, transfer, convey, lease or otherwise dispose of
+any material assets or properties of the Company or any of its Subsidiaries,
+except pursuant to existing agreements or for sales of products in the ordinary
+course of business consistent with past practice;
+
+ 
+
+(f)                make any material loans or material advances of money to any
+Person (other than the Company and its Subsidiaries), except for (i) loans made
+pursuant to any Plan, (ii) advances to employees or officers of the Company or
+any of its Subsidiaries for expenses incurred in the ordinary course of business
+consistent with past practice or (iii) trade credit extended to customers,
+franchisees and other business counterparties in the ordinary course of business
+consistent with past practice; or
+
+ 
+
+(g)               authorize or enter into a contract or otherwise make any
+commitment to do any of the foregoing.
+
+ 
+
+3.8              Information Rights. For so long as a Purchaser or its
+Affiliates hold any Shares, the Company shall provide such Purchaser with:
+
+ 
+
+(a)               quarterly financial statements as soon as reasonably
+practicable after they become available but no later than the later of (i)
+forty-five days after the end of each of the first three quarters of each fiscal
+year of the Company and (ii) the applicable filing deadlines under SEC rules;
+provided that this requirement shall be deemed to have been satisfied if, on or
+prior to such date, the Company files its quarterly report on Form 10-Q for the
+applicable fiscal quarter with the SEC; and
+
+ 
+
+(b)               audited (by a nationally recognized accounting firm) annual
+financial statements as soon as reasonably practicable after they become
+available but no later than the later of (i) ninety (90) days after the end of
+each fiscal year of the Company and (ii) the applicable filing deadline under
+SEC rules; provided that this requirement shall be deemed to have been satisfied
+if, on or prior to such date, the Company files its annual report on Form 10-K
+for the applicable fiscal year with the SEC, in each case, prepared in
+accordance with GAAP as in effect from time to time, which such financial
+statements shall include the consolidated balance sheets of the Company and its
+Subsidiaries and the related consolidated statements of operations, income,
+changes in shareholders’ equity and cash flows.
+
+ 
+
+
+
+15
+
+ 
+
+ 
+
+Article IV
+
+ADDITIONAL AGREEMENTS
+
+ 
+
+4.1              Transfer Restrictions.
+
+ 
+
+(a)               Until the earlier of (x) thirty-six (36) months following the
+Closing, and (y) the occurrence of a transaction resulting in a Change of
+Control (as defined in the Certificate of Designations), the Purchasers shall
+not Transfer any Share or any share of Class A Common Stock issued upon
+conversion of any Share except as otherwise permitted pursuant to the terms and
+conditions of this Agreement, including Section 4.1(b).
+
+ 
+
+(b)               Notwithstanding anything to the contrary in Section 4.1(a),
+the Purchasers shall be permitted to Transfer all or any portion of its Shares,
+or shares of Class A Common Stock issued upon conversion of any Shares at any
+time under the following circumstances:
+
+ 
+
+(1)               Transfers to any Permitted Transferee, but only if such
+Permitted Transferee agrees in writing for the benefit of the Company (in form
+and substance reasonably satisfactory to the Company and with a copy thereof to
+be furnished to the Company) to be bound by the terms of this Section 4.1 with
+respect to the Shares of shares of Class A Common Stock issuable upon conversion
+thereof;
+
+ 
+
+(2)               Transfers pursuant to an amalgamation, merger, tender offer or
+exchange offer or other business combination, acquisition of assets or similar
+transaction entered into by the Company or any transaction resulting in a Change
+of Control; or
+
+ 
+
+(3)               Transfers that have been approved in writing by the Board of
+Directors prior to such Transfer.
+
+ 
+
+(c)               Notwithstanding anything to the contrary in this Agreement or
+otherwise, “Transfer” shall not include, and this Section 4.1 shall not
+prohibit, any Lien on any Share or of any share of Class A Common Stock issued
+upon conversion thereof, or any exercise of remedies with respect to any of the
+foregoing, pursuant to (i) one or more credit facilities of a Purchaser or any
+of its Affiliates, so long as (A) such Purchaser shall provide prompt written
+notice to the Company if any event of default pursuant to any such credit
+facility occurs which results in any lender thereunder becoming entitled (with
+the provision of notice, lapse of time, or both) to foreclose on such
+collateral, (B) any such credit facility provides that the Company will be
+entitled to redeem any Share or share of Class A Common Stock issued upon
+conversion thereof, within twenty (20) business days following notice to the
+Company of such foreclosure, for the redemption price set forth in the
+Certificate of Designations, and (C) any such credit facility provides that any
+lender thereunder will not be entitled to exercise any right pursuant to this
+Section 4.1, including in the event of any such foreclosure or (ii) any back
+leverage financing, so long as any such financing provides that any lender
+thereunder will not be entitled to exercise any right pursuant to Section 4.1,
+including in the event of any foreclosure.
+
+ 
+
+
+
+16
+
+ 
+
+ 
+
+(d)               Any attempted Transfer in violation of this Section 4.1 shall
+be null and void ab initio and the Company shall not be required to give any
+effect thereto.
+
+ 
+
+(e)               Notwithstanding anything herein to the contrary, the
+provisions of this Section 4.1, and any Transfer restrictions on any Shares or
+shares of Class A Common Stock then-existing as a result of this Section 4.1,
+shall automatically terminate and be of no further force or effect upon the
+conversion of any Shares into shares Class A Common Stock by the Company
+pursuant to the terms of the Certificate of Designations.
+
+ 
+
+4.2              Legend.
+
+ 
+
+(a)               Each Purchaser agrees that all certificates or other
+instruments representing the Shares subject to this Agreement (or the shares of
+Class A Common Stock issuable upon conversion thereof) will bear a legend
+substantially to the following effect:
+
+ 
+
+THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
+SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
+NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
+STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
+SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
+SUCH LAWS.
+
+ 
+
+THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER
+RESTRICTIONS SET FORTH IN AN INVESTMENT AGREEMENT, DATED AS OF MARCH 29, 2020, A
+COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE ISSUER.
+
+ 
+
+(b)               Upon request of a Purchaser (or any Permitted Transferee),
+upon (i) termination of the provisions of Section 4.1 pursuant to the terms of
+Section 4.1(e) or (ii) receipt by the Company of an opinion of counsel
+reasonably satisfactory to the Company to the effect that such legend is no
+longer required under the Securities Act and applicable state Laws, the Company
+shall promptly cause the first paragraph of the legend to be removed from any
+certificate for any Shares to be transferred in accordance with the terms
+hereof. Each Purchaser acknowledges that the Shares have not been registered
+under the Securities Act or under any state securities Laws and agrees that it
+will not sell or otherwise dispose of any of the Shares, except in compliance
+with the registration requirements or exemption provisions of the Securities
+Act, any other applicable securities Laws.
+
+ 
+
+4.3              Tax Matters. The Company shall pay any and all documentary,
+stamp and similar issue or transfer tax due on (a) the issuance of the Shares or
+(b) the issuance of shares of Class A Common Stock upon conversion of the
+Shares. However, in the case of conversion of Shares, the Company shall not be
+required to pay any tax or duty that may be payable in respect of any transfer
+involved in the issuance and delivery of shares of Class A Common Stock or
+Preferred Stock in a name other than that of the holder of the shares to be
+converted, and no such issuance or delivery shall be made unless and until the
+Person requesting such issuance has paid to the Company the amount of any such
+tax or duty, or has established to the satisfaction of the Company that such tax
+or duty has been paid.
+
+ 
+
+
+
+17
+
+ 
+
+ 
+
+4.4              Survival. Except in the case of intentional and actual fraud,
+the representations and warranties of the parties contained in Article II hereof
+shall not survive, and shall terminate automatically as of, the Closing, and
+there shall be no liability in respect thereof, whether such liability has
+accrued prior to or after the Closing, on the party of any party, its Affiliates
+or any of their respective representatives. All other covenants and agreements
+of the parties contained herein shall survive the Closing in accordance with
+their terms.
+
+ 
+
+Article V
+
+MISCELLANEOUS
+
+ 
+
+5.1              Expenses. At the Closing, the Company shall pay the reasonable
+and documented fees and expenses of the Purchasers incurred in connection with
+the consummation of the transactions contemplated herein, in an aggregate amount
+not to exceed $750,000.
+
+ 
+
+5.2              Amendment; Waiver. No amendment or waiver of any provision of
+this Agreement will be effective with respect to any party unless made in
+writing and signed by an officer of a duly authorized representative of such
+party. No failure or delay by any party in exercising any right, power or
+privilege hereunder shall operate as a waiver thereof nor shall any single or
+partial exercise thereof preclude any other or further exercise thereof or the
+exercise of any other right, power or privilege. The conditions to each party’s
+obligation to consummate the Closing are for the sole benefit of such party and
+may be waived by such party in whole or in part to the extent permitted by
+applicable Law. No waiver of any party to this Agreement will be effective
+unless it is in a writing signed by a duly authorized officer of the waiving
+party that makes express reference to the provision or provisions subject to
+such waiver. The rights and remedies herein provided shall be cumulative and not
+exclusive of any rights or remedies provided by law.
+
+ 
+
+5.3              Counterparts; Electronic Transmission. This Agreement, and any
+amendments hereto, to the extent signed and delivered by means of an electronic
+transmission, including by a facsimile machine or via email, shall be treated in
+all manner and respects as an original agreement or instrument and shall be
+considered to have the same binding legal effect as if it were the original
+signed version thereof delivered in person. The words “execution,” “execute”,
+“signed,” “signature,” and words of like import in or related to any document to
+be signed in connection with this Agreement and the transactions contemplated
+hereby (including without limitation waivers and consents) shall be deemed to
+include electronic signatures, the electronic matching of assignment terms and
+contract formations on electronic platforms, or the keeping of records in
+electronic form, each of which shall be of the same legal effect, validity or
+enforceability as a manually executed signature or the use of a paper-based
+recordkeeping system, as the case may be, to the extent and as provided for in
+any applicable law, including the Federal Electronic Signatures in Global and
+National Commerce Act or any state Laws based on the Uniform Electronic
+Transactions Act. Neither party hereto or to any such agreement or instrument
+shall raise the use of electronic transmission by a facsimile machine or via
+email to deliver a signature or the fact that any signature or agreement or
+instrument was transmitted or communicated through such electronic transmission
+as a defense to the formation of a contract and each such party forever waives
+any such defense. This Agreement may be executed in separate counterparts, each
+of which will be an original and all of which together shall constitute one and
+the same agreement binding on each party hereto.
+
+ 
+
+
+
+18
+
+ 
+
+ 
+
+5.4              Governing Law. This Agreement shall be governed by, and
+construed in accordance with, the Laws of the state of Delaware, without giving
+effect to any choice of law or conflict of law rules or provisions (whether of
+the state of Delaware or any other jurisdiction) that would cause the
+application of the Laws of any jurisdiction other than the state of Delaware.
+Any dispute relating hereto shall be heard first in the Delaware Court of
+Chancery, and, if applicable, in any state or federal court located in of
+Delaware in which appeal from the Court of Chancery may validly be taken under
+the laws of the State of Delaware (each a “Chosen Court” and collectively, the
+“Chosen Courts”), and the parties agree to the exclusive jurisdiction and venue
+of the Chosen Courts. Such Persons further agree that any proceeding seeking to
+enforce any provision of, or based on any matter arising out of or in connection
+with, this Agreement or the transactions contemplated hereby or by any matters
+related to the foregoing (the “Applicable Matters”) shall be brought exclusively
+in a Chosen Court, and that any proceeding arising out of this Agreement or any
+other Applicable Matter shall be deemed to have arisen from a transaction of
+business in the state of Delaware, and each of the foregoing Persons hereby
+irrevocably consents to the jurisdiction of such Chosen Courts in any such
+proceeding and irrevocably and unconditionally waives, to the fullest extent
+permitted by law, any objection that such Person may now or hereafter have to
+the laying of the venue of any such suit, action or proceeding in any such
+Chosen Court or that any such proceeding brought in any such Chosen Court has
+been brought in an inconvenient forum. Such Persons further covenant not to
+bring a proceeding with respect to the Applicable Matters (or that could affect
+any Applicable Matter) other than in such Chosen Court and not to challenge or
+enforce in another jurisdiction a judgment of such Chosen Court. Process in any
+such proceeding may be served on any Person with respect to such Applicable
+Matters anywhere in the world, whether within or without the jurisdiction of any
+such Chosen Court. Without limiting the foregoing, each such Person agrees that
+service of process on such party as provided in Section 5.5 shall be deemed
+effective service of process on such Person. AS SPECIFICALLY BARGAINED FOR
+INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER
+HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY
+WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR
+ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
+
+ 
+
+5.5              Notices. Any notice, request, instruction or other document to
+be given hereunder by any party to the other will be either personally
+delivered, or sent by certified mail, return receipt requested, or sent by
+reputable overnight courier service (charges prepaid) to the parties at the
+applicable address set forth below, or at such address or to the attention of
+such other person as the recipient party has specified by prior written notice
+to the sending party. Notices will be deemed to have been given hereunder when
+delivered personally or sent by telecopier or electronic mail (provided
+confirmation of transmission is received), three (3) days after deposit in the
+U.S. mail and one (1) day after deposit with a reputable overnight courier
+service.
+
+ 
+
+
+
+19
+
+ 
+
+ 
+
+(a)            If to Purchasers:
+
+ 
+
+c/o Madison Dearborn Partners 70 W. Madison St. #4600 Chicago, IL 60602 Attn:
+Vahe A. Dombalagian E-mail: vdombalagian@mdcp.com     with a copy to (which copy
+alone shall not constitute notice):   Latham & Watkins LLP 330 N. Wabash Avenue,
+Suite 2800 Chicago, IL 60611 Attn: Greg Rodgers   Neal J. Reenan   Jonathan P.
+Solomon E-mail: greg.rodgers@lw.com   neal.reenan@lw.com  
+jonathan.solomon@lw.com
+
+ 
+
+(b)           If to the Company:
+
+  
+
+EVO Payments, Inc. Ten Glenlake Parkway, South Tower, Suite 950 Atlanta, GA
+30328 Attn: Chief Financial Officer E-mail: Tom.Panther@evopayments.com   with a
+copy to (which copy alone shall not constitute notice):   King & Spalding LLP
+1180 Peachtree Street, N.E. Atlanta, GA 30309 Attn: Keith M. Townsend   Zachary
+L. Cochran   Robert Leclerc E-mail: ktownsend@kslaw.com   zcochran@kslaw.com  
+rleclerc@kslaw.com
+
+
+
+ 
+
+5.6              Entire Agreement. This Agreement (including the Exhibits hereto
+and the documents and instruments referred to in this Agreement), constitutes
+the entire agreement among the parties and supersedes all other prior agreements
+and understandings, both written and oral, between the parties with respect to
+the subject matter hereof and transactions contemplated hereby.
+
+ 
+
+
+
+20
+
+ 
+
+
+
+ 
+
+ 
+
+5.7              Assignment. Neither this Agreement, nor any of the rights,
+interests or obligations hereunder shall be assigned by any of the parties
+hereto (whether by operation of Law or otherwise) without the prior written
+consent of the other party, provided, however, that (a) a Purchaser may assign
+its rights, interests and obligations under this Agreement, in whole or in part,
+to one or more Permitted Transferees, and (b) in the event of such assignment,
+the assignee shall agree in writing to be bound by the provisions of this
+Agreement, including the rights, interests and obligations so assigned; provided
+that no such assignment will relieve such Purchaser of its obligations hereunder
+prior to the Closing.
+
+ 
+
+5.8              Interpretation. Wherever required by the context of this
+Agreement, the singular shall include the plural and vice versa, and the
+masculine gender shall include the feminine and neuter genders and vice versa,
+and references to any agreement, document or instrument shall be deemed to refer
+to such agreement, document or instrument as amended, supplemented or modified
+from time to time. All article, section, paragraph or clause references not
+attributed to a particular document shall be references to such parts of this
+Agreement, and all exhibit, annex, letter and schedule references not attributed
+to a particular document shall be references to such exhibits, annexes, letters
+and schedules to this Agreement. In addition, the following terms are ascribed
+the following meanings:
+
+ 
+
+(a)               the word “or” is not exclusive;
+
+ 
+
+(b)               the words “including,” “includes,” “included” and “include”
+are deemed to be followed by the words “without limitation”;
+
+ 
+
+(c)               the terms “herein,” “hereof” and “hereunder” and other words
+of similar import refer to this Agreement as a whole and not to any particular
+section, paragraph or subdivision; and
+
+ 
+
+(d)               the term “business day” means any day except Saturday, Sunday
+and any day which shall be a legal holiday or a day on which banking
+institutions in Chicago, Illinois generally are authorized or required by law or
+other governmental action to close.
+
+ 
+
+5.9              Captions. The article, section, paragraph and clause captions
+herein are for convenience of reference only, do not constitute part of this
+Agreement and will not be deemed to limit or otherwise affect any of the
+provisions hereof.
+
+ 
+
+5.10          Severability. If any provision of this Agreement or the
+application thereof to any Person (including the officers and directors of the
+parties hereto) or circumstance is determined by a court of competent
+jurisdiction to be invalid, void or unenforceable, the remaining provisions
+hereof, or the application of such provision to Persons or circumstances other
+than those as to which it has been held invalid or unenforceable, will remain in
+full force and effect and shall in no way be affected, impaired or invalidated
+thereby, so long as the economic or legal substance of the transactions
+contemplated hereby is not affected in any manner materially adverse to any
+party. Upon such determination, the parties shall negotiate in good faith in an
+effort to agree upon a suitable and equitable substitute provision to effect the
+original intent of the parties.
+
+ 
+
+5.11          No Third Party Beneficiaries. Nothing contained in this Agreement,
+expressed or implied, is intended to confer upon any Person other than the
+parties hereto (and their permitted assigns), any benefit, right or remedies.
+
+ 
+
+
+
+21
+
+ 
+
+ 
+
+5.12          Public Announcements. Subject to each party’s disclosure
+obligations imposed by law or regulation or the rules of any stock exchange upon
+which its securities are listed, each of the parties hereto will cooperate with
+each other in the development and distribution of all news releases and other
+public information disclosures with respect to this Agreement and any of the
+transactions contemplated by this Agreement, and neither the Company nor any
+Purchaser will make any such news release or public disclosure without first
+consulting with the other, and, in each case, also receiving the other’s consent
+(which shall not be unreasonably withheld or delayed) and each party shall
+coordinate with the party whose consent is required with respect to any such
+news release or public disclosure. Notwithstanding the forgoing, this Section
+5.12 shall not apply to any press release or other public statement made by the
+Company or a Purchaser (a) which is consistent with prior disclosure and does
+not contain any information relating to the transactions that has not been
+previously announced or made public in accordance with the terms of this
+Agreement or (b) is made to its auditors, attorneys, accountants, financial
+advisors, limited partners or other Permitted Transferees.
+
+ 
+
+5.13          Specific Performance. The parties agree that irreparable damage
+would occur in the event that any of the provisions of this Agreement were not
+performed in accordance with their specific terms or were otherwise breached. It
+is accordingly agreed that, without the necessity of posting bond or other
+undertaking, the parties shall be entitled to specific performance of the terms
+hereof, this being in addition to any other remedies to which they are entitled
+at law or equity, and in the event that any action or suit is brought in equity
+to enforce the provisions of this Agreement, and no party will allege, and each
+party hereby waives, the defense or counterclaim that there is an adequate
+remedy at law.
+
+ 
+
+5.14          Termination. Prior to the Closing, this Agreement may only be
+terminated:
+
+ 
+
+(a)               by mutual written agreement of the Company and each Purchaser;
+
+ 
+
+(b)               by the Company or a Purchaser, upon written notice to the
+other parties if the Closing has not occurred by May 29, 2020; provided, however
+that the right to terminate this Agreement pursuant to this Section 5.14(b)
+shall not be available to any party whose failure to fulfill any obligations
+under this Agreement shall have been the principal cause of, or shall have
+primarily resulted in, the failure of the Closing to occur on or prior to such
+date;
+
+ 
+
+(c)               by notice given by the Company to the Purchasers, if there
+have been one or more inaccuracies in or breaches of one or more
+representations, warranties, covenants or agreements made by a Purchaser in this
+Agreement such that the conditions in Section 1.3(c)(1) or (2) would not be
+satisfied and which have not been cured by such Purchaser thirty (30) days after
+receipt by such Purchaser of written notice from the Company requesting such
+inaccuracies or breaches to be cured; or
+
+ 
+
+(d)               by notice given by a Purchaser to the Company, if there have
+been one or more inaccuracies in or breaches of one or more representations,
+warranties, covenants or agreements made by the Company in this Agreement such
+that the conditions in Section 1.3(b)(1) or (2) would not be satisfied and which
+have not been cured by the Company within thirty (30) days after receipt by the
+Company of written notice from such Purchaser requesting such inaccuracies or
+breaches to be cured.
+
+ 
+
+
+
+22
+
+ 
+
+ 
+
+5.15          Effects of Termination. In the event of any termination of this
+Agreement in accordance with Section 5.14, neither party (or any of its
+Affiliates) shall have any liability or obligation to the other (or any of its
+Affiliates) under or in respect of this Agreement, except to the extent of any
+actual and intentional fraud or intentional or willful breach of this Agreement.
+In the event of any such termination, this Agreement shall become void and have
+no effect, and the transactions contemplated hereby shall be abandoned without
+further action by the parties hereto, in each case, except (x) as set forth in
+the preceding sentence and (y) that the provisions of Sections 5.2 to 5.13
+(Amendment, Waiver; Counterparts, Electronic Transmission; Governing Law; Waiver
+of Jury Trial; Notices; Entire Agreement, Assignment; Interpretation; Captions;
+Severability; No Third Party Beneficiaries; Public Announcements; and Specific
+Performance), Section 5.16 (Non-Recourse) and Section 5.17 (Definitions) shall
+survive the termination of this Agreement.
+
+ 
+
+5.16          Non-Recourse. This Agreement may only be enforced against, and any
+claims or causes of action that may be based upon, arise out of or relate to
+this Agreement, or the negotiation, execution or performance of this Agreement
+may only be made against the entities that are expressly identified as parties
+hereto, including entities that become parties hereto after the date hereof,
+including permitted assignees and successors, or that agree in writing for the
+benefit of the Company to be bound by the terms of this Agreement applicable to
+the Purchasers, and no former, current or future equityholders, controlling
+Persons, directors, officers, employees, agents or Affiliates of any party
+hereto or any former, current or future equityholder, controlling Person,
+director, officer, employee, general or limited partner, member, manager,
+advisor, agent or Affiliate of any of the foregoing (each, a “Non-Recourse
+Party”) shall have any liability for any obligations or liabilities of the
+parties to this Agreement or for any claim (whether in tort, contract or
+otherwise) based on, in respect of, or by reason of, the transactions
+contemplated hereby or in respect of any representations made or alleged to be
+made in connection herewith. Without limiting the rights of any party against
+the other parties hereto, in no event shall any party or any of its Affiliates
+seek to enforce this Agreement against, make any claims for breach of this
+Agreement against, or seek to recover monetary damages from, any Non-Recourse
+Party.
+
+ 
+
+5.17          Definitions.
+
+ 
+
+(a)               As used herein, the following terms have the meanings ascribed
+thereto below:
+
+ 
+
+“Affiliate” means, with respect to any Person, any Person directly or indirectly
+controlling, controlled by or under common control with, such other Person;
+provided, however, that (i) portfolio companies in which any Person or any of
+its Affiliates has an investment shall not be deemed an Affiliate of such Person
+(except for the purposes of Sections 5.1, 5.15 and 5.16, such portfolio
+companies shall be deemed Affiliates), or (ii) the Company, any of its
+Subsidiaries, or any of the Company’s other controlled Affiliates, in each case,
+will not be deemed to be Affiliates of any Purchaser for purposes of this
+Agreement. For purposes of this definition, “control” (including, with
+correlative meanings, the terms “controlled by” and “under common control with”)
+when used with respect to any Person, means the possession, directly or
+indirectly, of the power to cause the direction of management or policies of
+such Person, whether through the ownership of voting securities, by contract or
+otherwise.
+
+ 
+
+“Code” means the United Stated Internal Revenue Code of 1986, as amended.
+
+ 
+
+
+
+23
+
+ 
+
+ 
+
+“Company Material Adverse Effect” means, with respect to the Company, any Effect
+that, individually or taken together with all other Effects that have occurred
+prior to the date of determination of the occurrence of the Company Material
+Adverse Effect, is or is reasonably likely to be materially adverse to the
+business, results of operations or financial condition of the Company and its
+Subsidiaries, taken as a whole; provided, however, that in no event shall any of
+the following individually or taken together, be deemed to constitute, or be
+taken into account in determining whether a Company Material Adverse Effect has
+occurred or is expected to occur: (i) any change in the Company’s stock price or
+trading volume on the Nasdaq, (ii) any failure by the Company to meet internal
+or analyst revenue, earnings or other financial projections or expectations for
+any period, (iii) any Effect that results from changes affecting the industry in
+which the Company operates, or the United States economy generally, or any
+Effect that results from changes affecting general worldwide economic or United
+States or global capital market conditions, (iv) any Effect caused by the
+announcement of the transactions contemplated by this Agreement or the other
+Transaction Documents, or the identity of the Purchasers or any of their
+respective Affiliates as the Purchasers in connection with the transactions
+contemplated by this Agreement, (v) political conditions, including acts of war
+or terrorism or natural disasters or any pandemic or epidemic, including
+COVID-19, (vi) any action taken or omitted to be taken by the Company at the
+written request or with the prior written consent of the Purchasers, (vii)
+changes in GAAP or other accounting standards (or any interpretation thereof) or
+(viii) changes in any Laws or other binding directives issued by any
+Governmental Entity or interpretations or enforcement thereof; provided,
+however, that (A) the exceptions in clause (i) and (ii) shall not prevent or
+otherwise affect a determination that any Effect underlying such change or
+failure has resulted in, or contributed to, a Company Material Adverse Effect or
+that the underlying cause of such failure (unless such underlying cause would
+otherwise be excluded from this definition) has resulted in, or contributed to,
+a Company Material Adverse Effect and (B) with respect to clauses (iii), (vii)
+and (viii), such Effects, alone or in combination, may be deemed to constitute,
+or be taken into account in determining whether a Company Material Adverse
+Effect has occurred, but only to the extent such Effects disproportionately
+affect the Company and its Subsidiaries, taken as a whole, relative to other
+companies operating in the same industry as the Company and its Subsidiaries.
+
+ 
+
+“Company Subsidiary” means any Subsidiary of the Company.
+
+ 
+
+“Credit Agreement” means that certain Credit Agreement, dated as of May 30,
+2012, among, EVO Payments International, LLC, a Delaware limited liability
+company and Company Subsidiary, the guarantors party thereto, the lenders party
+thereto and SunTrust Bank, as administrative agent for the lenders.
+
+ 
+
+“Director Nomination Agreement” means that certain Director Nomination
+Agreement, effective as of May 25, 2018, by and among the Company, certain of
+the Purchasers, and certain of the Purchasers’ Affiliates party thereto.
+
+ 
+
+“Effect” means any change, event, effect, development or circumstance.
+
+ 
+
+“Equity Interest” means any share, capital stock, partnership, limited liability
+company, member or similar equity interest in any Person, and any option,
+warrant, right or security (including debt securities) convertible, exchangeable
+or exercisable into or for any such share, capital stock, partnership, limited
+liability company, member or similar equity interest.
+
+ 
+
+
+
+24
+
+ 
+
+ 
+
+“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
+from time to time, and all rules, regulations, rulings and interpretations
+adopted by the Internal Revenue Service or the Department of Labor thereunder.
+
+ 
+
+“Governmental Entity” means any court, administrative or regulatory agency or
+commission or other governmental or arbitral body or authority or
+instrumentality, including any state-controlled or owned corporation or
+enterprise, in each case whether federal, state, local or foreign, and any
+applicable industry self-regulatory organization.
+
+ 
+
+“Knowledge of the Company” means the actual knowledge after reasonable inquiry
+of one or more of the Company’s chief executive officer, chief financial
+officer, and general counsel.
+
+ 
+
+“Law” means any applicable federal, state, local, municipal, foreign or other
+law, statute, constitution, principle of common law, resolution, ordinance,
+code, order, edict, decree, rule, regulation, ruling or other legally binding
+requirement issued, enacted, adopted, promulgated, implemented or otherwise put
+into effect by or under the authority of any Governmental Entity.
+
+ 
+
+“Lien” means any mortgage, pledge, security interest, encumbrance, lien, charge
+or other restriction of any kind, whether based on common law, statute or
+contract.
+
+ 
+
+“Permitted Transferee” means, with respect to any Person, (i) any Affiliate of
+such Person, (ii) any successor entity of such Person or (iii) any investment
+fund, vehicle or similar entity of which the first specified Person, or any
+Affiliate, advisor or manager of the first specified Person serves as a general
+partner, manager or advisor, or any successor entity of the Persons described in
+this clause (iii).
+
+ 
+
+“Person” has the meaning given to it in Section 3(a)(9) of the Exchange Act and
+as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act.
+
+ 
+
+“Plan” means (i) any employee pension benefit plan (as defined in Section
+3(2)(A) of ERISA) maintained for employees of the Company or of any member of a
+“controlled group,” as such term is defined in Section 414 of the Code, of which
+the Company or any of its Subsidiaries is a part, or any such employee pension
+benefit plan to which the Company or any of its Subsidiaries is required to
+contribute on behalf of its employees, and any other employee benefit plan (as
+defined in Section 3(3) of ERISA), whether or not subject to ERISA; or (ii) any
+compensation or other benefit plan, policy, program, agreement or arrangement,
+including any employment, change in control, bonus, equity-based compensation,
+retention or other similar agreement, that the Company or any of its
+Subsidiaries, maintains, sponsors, is a party to, or as to which the Company or
+any of its Subsidiaries otherwise has any material obligation or material
+liability in respect of its employees; in each case, excluding any compensation
+or benefit arrangement maintained by a Governmental Entity.
+
+ 
+
+“Pre-Closing Period” means the period commencing on the date hereof and
+terminating on the earlier to occur of (a) the Closing and (b) the termination
+of this Agreement in accordance with the provisions hereof.
+
+ 
+
+
+
+25
+
+ 
+
+ 
+
+“Stockholder” means a holder of Common Stock or Preferred Stock.
+
+ 
+
+“Subsidiary” means, with respect to any Person, any corporation, partnership,
+joint venture, limited liability company or other entity (i) of which such
+Person or a Subsidiary of such Person is a general partner or (ii) of which a
+majority of the voting securities or other voting interests, or a majority of
+the securities or other interests of which having by their terms ordinary voting
+power to elect a majority of the board of directors or Persons performing
+similar functions with respect to such Person, is directly or indirectly owned
+by such Person and/or one or more subsidiaries thereof.
+
+ 
+
+“Transaction Documents” means this Agreement, the Certificate of Designations,
+the A&R Nomination Agreement and the Support Agreements.
+
+ 
+
+“Transfer” by any Person means, directly or indirectly, to (i) sell, transfer,
+assign, pledge, encumber, hypothecate, establish or increase a put equivalent
+position or liquidate or decrease a call equivalent position within the meaning
+of Section 16 of the Exchange Act or similarly dispose of, either voluntarily or
+involuntarily, any securities owned by such Person or of any interest (including
+any voting interest) in any securities owned by such Person, or (ii) enter into
+any swap or other arrangement that transfers to another, in whole or in part,
+any of the economic consequences of ownership of any subject securities, for
+cash or otherwise.
+
+ 
+
+(b)               As used herein, the following terms are defined in the Section
+of this Agreement set forth after such term below:
+
+ 
+
+Term  Location of
+Definition A&R Nomination Agreement   1.2(b)(1) Agreement   Preamble  Anti-Trust
+Approval   3.1(a) Applicable Matters   5.4  Board of Directors   2.1(c)(1)
+Bylaws   2.1(a)(1) Certificate of Designations   Recitals  Certificate of
+Incorporation   2.1(a)(1) Chosen Court   5.4  Class A Common Stock   2.1(b)(1)
+Class B Common Stock   2.1(b)(1) Class C Common Stock   2.1(b)(1) Class D Common
+Stock   2.1(b)(1) Closing   1.2(a) Closing Date   1.2(a) Common Stock 
+ 2.1(b)(1) Company   Preamble  Company Options   2.1(b)(1) Company RSUs 
+ 2.1(b)(1) Exchange Act   2.1  GAAP   2.1(f)(4) HSR Act   3.1(a)
+
+ 
+
+
+
+26
+
+ 
+
+ 
+
+Term   Location of
+Definition InvestCo LLC Agreement   1.3(b)(5) Non-Recourse Party   5.16  Nasdaq 
+ 1.3(b)(8) Per Share Price   1.1  Preferred Stock   Recitals  Purchase Price 
+ 1.1  Purchaser   Preamble  Purchaser Election   3.1(a) Registration Rights
+Agreement   1.3(b)(7) SEC   2.1(a)(2) SEC Documents   2.1(f)(1) Securities Act 
+ 2.1  Shares   1.1  Support Agreement   Recitals  Supporting Stockholders 
+ Recitals 
+
+ 
+
+*****
+
+ 
+
+[Signature Page Follows]
+
+ 
+
+
+
+27
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
+duly authorized officers of the parties hereto as of the date first herein above
+written.
+
+ 
+
+  EVO PAYMENTS, INC.       By: /s/ James G. Kelly     Name: James G. Kelly    
+Title: Chief Executive Officer
+
+ 
+
+[Signature Page to Investment Agreement]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+  MADISON DEARBORN CAPITAL PARTNERS VI-A, L.P.       By: Madison Dearborn
+Partners VI-A&C, L.P.   Its: General Partner       By: Madison Dearborn
+Partners, LLC   Its: General Partner       By: /s/ Vahe A. Dombalagian   Name:
+Vahe A. Dombalagian   Title: Managing Director       MADISON DEARBORN CAPITAL
+PARTNERS VI EXECUTIVE-A, L.P.       By: Madison Dearborn Partners VI-A&C, L.P.  
+Its: General Partner       By: Madison Dearborn Partners, LLC   Its: General
+Partner       By: /s/ Vahe A. Dombalagian   Name: Vahe A. Dombalagian   Title:
+Managing Director       MADISON DEARBORN CAPITAL PARTNERS VI-C, L.P.       By:
+Madison Dearborn Partners VI-A&C, L.P.   Its: General Partner       By: Madison
+Dearborn Partners, LLC   Its: General Partner       By: /s/ Vahe A. Dombalagian
+  Name: Vahe A. Dombalagian   Title: Managing Director
+
+ 
+
+[Signature Page to Investment Agreement]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Schedule I
+
+ 
+
+Purchaser Number of Shares Purchase Price Madison Dearborn Capital Partners
+VI-A, L.P 126,108 $124,244,335.00 Madison Dearborn Capital Partners VI
+Executive-A, L.P. 1,300 $1,280,788.18 Madison Dearborn Capital Partners VI-C,
+L.P. 24,842 $24,474,876.86 TOTAL 152,250 $150,000,000.04
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+EXHIBIT A
+
+ 
+
+Form of Certificate of Designations
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+EVO Payments, Inc.
+
+ 
+
+Certificate of Designations
+
+ 
+
+Series A Convertible Preferred Stock
+
+ 
+
+[date]
+
+ 
+
+ 
+
+ 
+
+ 
+
+
+
+Table of Contents
+
+ 
+
+Page
+
+Section 1. Definitions 1 Section 2. Rules of Construction 13 Section 3. The
+Convertible Preferred Stock 14 (a) Designation; Par Value 14 (b) Number of
+Authorized Shares 14 (c) Form, Dating and Denominations 14 (d) Method of
+Payment; Delay When Payment Date is Not a Business Day 15 (e) Register 15 (f)
+Legends 16 (g) Transfers and Exchanges; Transfer Taxes; Certain Transfer
+Restrictions 16 (h)
+
+Exchange and Cancellation of Convertible Preferred Stock to Be Converted or to
+Be Repurchased Pursuant to a Repurchase Upon
+
+Change of Control or a Redemption
+
+18 (i) Status of Retired Shares 18 (j) Replacement Certificates 19 (k)
+Registered Holders 19 (l) Cancellation 19 (m) Shares Held by the Company or its
+Affiliates 19 (n) Outstanding Shares 19 (o) Notations and Exchanges 20 Section
+4. Ranking 21 Section 5. Dividends 21 (a) Generally 21 (b) Participating
+Dividends 22 Section 6. Rights Upon Liquidation, Dissolution or Winding Up 23
+(a) Generally 23 (b) Certain Business Combination Transactions Deemed Not to Be
+a Liquidation 23 Section 7. Right of the Company to Redeem the Convertible
+Preferred Stock 24 (a) No Right to Redeem Before the Redemption Trigger Date 24
+(b) Right to Redeem the Convertible Preferred Stock on or After Redemption
+Trigger Date 24 (c) Redemption Prohibited in Certain Circumstances 24 (d)
+Redemption Date 24 (e) Redemption Price 24 (f) Redemption Notice 24 (g) Payment
+of the Redemption Price 25 Section 8. Right of Holders to Require the Company to
+Repurchase Convertible Preferred Stock upon a Change of Control 25 (a) Right of
+Holders to Require the Company to Repurchase Convertible Preferred Stock upon a
+Change of Control 25 (b) Funds Legally Available for Payment of Change of
+Control Repurchase Price; Covenant Not to Take Certain Actions 25
+
+ 
+
+
+
+- i - 
+
+ 
+
+ 
+
+(c) Change of Control Repurchase Date 25 (d) Change of Control Repurchase Price
+26 (e) Change of Control Notice 26 (f) Procedures to Exercise the Change of
+Control Repurchase Right 27 (g) Payment of the Change of Control Repurchase
+Price 27 (h) Compliance with Securities Laws 28 Section 9. Voting Rights 28 (a)
+Voting and Consent Rights with Respect to Specified Matters 28 (b) Right to Vote
+with Holders of Common Stock on an As-Converted Basis 30 (c) Procedures for
+Voting and Consents 31 Section 10. Conversion 31 (a) Generally 31 (b) Conversion
+at the Option of the Holders 31 (c) Mandatory Conversion at the Company’s
+Election. 32 (d) Conversion Procedures 33 (e) Settlement upon Conversion 34 (f)
+Conversion Rate Adjustments 35 (g) Voluntary Conversion Rate Increases 37 (h)
+Restriction on Conversions and Certain Degressive Issuances 37 (i) Effect of
+Common Stock Change Event 39 Section 11. Certain Provisions Relating to the
+Issuance of Common Stock 40 (a) Equitable Adjustments to Prices 40 (b)
+Reservation of Shares of Common Stock 40 (c) Status of Shares of Common Stock 41
+(d) Taxes Upon Issuance of Common Stock 41 Section 12. No Preemptive Rights 41
+Section 13. Tax Treatment 41 Section 14. Calculations 42 (a) Responsibility;
+Schedule of Calculations 42 (b) Calculations Aggregated for Each Holder 42
+Section 15. Notices 42 Section 16. Legally Available Funds 42 Section 17. No
+Other Rights 42       Exhibits           Exhibit A: Form of Preferred Stock
+Certificate A-1       Exhibit B: Form of Restricted Stock Legend B-1
+
+ 
+
+
+
+- ii - 
+
+ 
+
+ 
+
+Certificate of Designations
+
+ 
+
+Series A Convertible Preferred Stock
+
+ 
+
+On March 29, 2020, the Board of Directors of EVO Payments, Inc., a Delaware
+corporation (the “Company”), adopted the following resolution designating and
+creating, out of the authorized and unissued shares of preferred stock of the
+Company, 152,250 authorized shares of a series of preferred stock of the Company
+titled the “Series A Convertible Preferred Stock”:
+
+ 
+
+RESOLVED that, pursuant to the Certificate of Incorporation, the Bylaws and
+applicable law, a series of preferred stock of the Company titled the “Series A
+Convertible Preferred Stock,” and having a par value of $0.0001 per share and an
+initial number of authorized shares equal to 152,250, is hereby designated and
+created out of the authorized and unissued shares of preferred stock of the
+Company, which series has the rights, designations, preferences, voting powers
+and other provisions set forth below:
+
+ 
+
+Section 1.                Definitions.
+
+ 
+
+ 
+
+“Affiliate” has the meaning set forth in Rule 144.
+
+ 
+
+“Antitrust Clearance Date” means the date on which the waiting period under the
+Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, has expired or
+been terminated, and any other required clearances, approvals or authorizations
+of filings and registrations with, and notifications to government authorities
+under other applicable antitrust and competition laws have been received, in
+each case, with respect to the ownership by the Holders of voting securities in
+the Company.
+
+ 
+
+“Board of Directors” means the Company’s board of directors or a committee of
+such board duly authorized to act on behalf of such board.
+
+ 
+
+“Business Day” means any day other than a Saturday, a Sunday or any day on which
+the Federal Reserve Bank of New York is authorized or required by law or
+executive order to close or be closed.
+
+ 
+
+“Capital Stock” of any Person means any and all shares of, interests in, rights
+to purchase, warrants or options for, participations in, or other equivalents
+of, in each case however designated, the equity of such Person, but excluding
+any debt securities convertible into such equity.
+
+ 
+
+“Certificate” means any Physical Certificate or Electronic Certificate.
+
+ 
+
+“Certificate of Designations” means this Certificate of Designations, as amended
+or supplemented from time to time.
+
+ 
+
+“Certificate of Incorporation” means the Company’s Amended and Restated
+Certificate of Incorporation, as the same may be further amended, supplemented
+or restated.
+
+ 
+
+
+
+ - 1 -
+
+ 
+
+ 
+
+“Change of Control” means any of the following events:
+
+ 
+
+(a)       a “person” or “group” (within the meaning of Section 13(d)(3) of the
+Exchange Act), other than the Company, its Wholly Owned Subsidiaries or a Holder
+(together with its Affiliates), has become the direct or indirect “beneficial
+owner” (as defined below) of shares of the Company’s common equity representing
+more than fifty percent (50%) of the voting power of all of the Company’s
+then-outstanding common equity; or
+
+ 
+
+(b)       the consummation of (i) any sale, lease or other transfer, in one
+transaction or a series of transactions, of all or substantially all of the
+assets of the Company and its Subsidiaries, taken as a whole, to any Person; or
+(ii) any transaction or series of related transactions in connection with which
+(whether by means of merger, consolidation, share exchange, combination,
+reclassification, recapitalization, acquisition, liquidation or otherwise) all
+of the Common Stock is exchanged for, converted into, acquired for, or
+constitutes solely the right to receive, other securities, cash or other
+property; provided, however, that any merger, consolidation, share exchange or
+combination of the Company pursuant to which the Persons that directly or
+indirectly “beneficially owned” (as defined below) all classes of the Company’s
+common equity immediately before such transaction directly or indirectly
+“beneficially own,” immediately after such transaction, more than fifty percent
+(50%) of all classes of common equity of the surviving, continuing or acquiring
+company or other transferee, as applicable, or the parent thereof, in
+substantially the same proportions vis-à-vis each other as immediately before
+such transaction will be deemed not to be a Change of Control pursuant to this
+clause (b).
+
+ 
+
+For the purposes of this definition, (x) any transaction or event described in
+both clause (a) and in clause (b)(i) or (ii) above (without regard to the
+proviso in clause (b)) will be deemed to occur solely pursuant to clause (b)
+above (subject to such proviso); and (y) whether a Person is a “beneficial
+owner” and whether shares are “beneficially owned” will be determined in
+accordance with Rule 13d-3 under the Exchange Act.
+
+ 
+
+“Change of Control Notice” has the meaning set forth in Section 8(e).
+
+ 
+
+“Change of Control Repurchase Date” means the date fixed, pursuant to Section
+8(c), for the repurchase of any Convertible Preferred Stock by the Company
+pursuant to a Repurchase Upon Change of Control.
+
+ 
+
+“Change of Control Repurchase Notice” means a notice (including a notice
+substantially in the form of the “Change of Control Repurchase Notice” set forth
+in Exhibit A) containing the information, or otherwise complying with the
+requirements, set forth in Section 8(f)(i) and Section 8(f)(i)(2).
+
+ 
+
+“Change of Control Repurchase Price” means the cash price payable by the Company
+to repurchase any share of Convertible Preferred Stock upon its Repurchase Upon
+Change of Control, calculated pursuant to Section 8(d).
+
+ 
+
+
+
+ - 2 -
+
+ 
+
+ 
+
+A “Change of Control Repurchase Price Default” will be deemed to occur upon any
+failure to pay the Change of Control Repurchase Price for a Change of Control in
+full when due as provided in this Certificate of Designations. A Change of
+Control Repurchase Price Default that has occurred will be deemed to continue
+until such time when the Change of Control Repurchase Price is paid in full, at
+which time such Change of Control Repurchase Price Default will be deemed to be
+cured and cease to be continuing.
+
+ 
+
+“Change of Control Repurchase Right” has the meaning set forth in Section 8(a).
+
+ 
+
+“Close of Business” means 5:00 p.m., New York City time.
+
+ 
+
+“Code” means the Internal Revenue Code of 1986, as amended.
+
+ 
+
+“Common Stock” means the Class A common stock, $0.0001 par value per share, of
+the Company, subject to Section 10(i).
+
+ 
+
+“Common Stock Change Event” has the meaning set forth in Section 10(i)(i).
+
+ 
+
+“Common Stock Liquidity Conditions” will be satisfied with respect to a
+Mandatory Conversion or Redemption if:
+
+ 
+
+(a)       either (i) each share of Common Stock to be issued upon such Mandatory
+Conversion of any share of Convertible Preferred Stock or that may be issued
+upon conversion of any share of Convertible Preferred Stock that is subject to
+such Redemption would be eligible to be offered, sold or otherwise transferred
+by the Holder of such share of Convertible Preferred Stock pursuant to Rule 144
+under the Securities Act (or any successor rule thereto), without any
+requirements as to volume, manner of sale, availability of current public
+information (whether or not then satisfied) or notice; or (ii) the offer and
+sale of such share of Common Stock by such Holder are registered pursuant to an
+effective registration statement under the Securities Act and such registration
+statement is reasonably expected by the Company to remain effective and usable,
+by the Holder to sell such share of Common Stock, continuously during the period
+from, and including, the date the related Mandatory Conversion Notice or
+Redemption Notice Date, as applicable, is sent to, and including, the thirtieth
+(30th) calendar day after the date such share of Common Stock is issued;
+provided, however, that each Holder will supply all information reasonably
+requested by the Company for inclusion, and required to be included, in any
+registration statement or prospectus supplement related to the resale of the
+Common Stock issuable upon conversion of the Convertible Preferred Stock;
+provided, further, that if a Holder fails to provide such information to the
+Company within fifteen (15) calendar days following any such request, then this
+clause (a)(ii) will automatically be deemed to be satisfied with respect to such
+Holder;
+
+ 
+
+(b)       each share of Common Stock referred to in clause (a) above (i) will,
+when issued (or, in the case of clause (a)(ii), when sold or otherwise
+transferred pursuant to the registration statement referred to in such clause)
+(1) be admitted for book-entry settlement through the Depositary with an
+“unrestricted” CUSIP number; and (2) not be represented by any certificate that
+bears a legend referring to transfer restrictions under the Securities Act or
+other securities laws; and (ii) will, when issued, be listed and admitted for
+trading, without suspension or material limitation on trading, on any of The New
+York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market
+(or any of their respective successors); and
+
+ 
+
+
+
+ - 3 -
+
+ 
+
+ 
+
+(c)       (i) the Company has not received any written threat or notice of
+delisting or suspension by the applicable exchange referred to in clause (b)(ii)
+above with a reasonable prospect of delisting, after giving effect to all
+applicable notice and appeal periods; and (ii) no such delisting or suspension
+is reasonably likely to occur or is pending based on the Company falling below
+the minimum listing maintenance requirements of such exchange.
+
+ 
+
+“Common Stock Participating Dividend” has the meaning set forth in Section
+5(b)(i).
+
+ 
+
+“Company” means EVO Payments, Inc., a Delaware corporation.
+
+ 
+
+“Conversion Share” means any share of Common Stock issued or issuable upon
+conversion of any Convertible Preferred Stock.
+
+ 
+
+“Conversion Consideration” means, with respect to the conversion of any
+Convertible Preferred Stock, the type and amount of consideration payable to
+settle such conversion, determined in accordance with Section 10.
+
+ 
+
+“Conversion Date” means an Optional Conversion Date or a Mandatory Conversion
+Date.
+
+ 
+
+“Conversion Notice” means a notice substantially in the form of the “Conversion
+Notice” set forth in Exhibit A.
+
+ 
+
+“Conversion Price” means, as of any time, an amount equal to (a) the Initial
+Liquidation Preference per share of Convertible Preferred Stock divided by (b)
+the Conversion Rate in effect at such time.
+
+ 
+
+“Conversion Rate” initially means 63.2911 shares of Common Stock per one
+thousand dollars ($1,000.00) of Liquidation Preference of the Convertible
+Preferred Stock; provided, however, that the Conversion Rate is subject to
+adjustment pursuant to Sections 10(f) and 10(g). Each reference in this
+Certificate of Designations or the Convertible Preferred Stock to the Conversion
+Rate as of a particular date without setting forth a particular time on such
+date will be deemed to be a reference to the Conversion Rate immediately before
+the Close of Business on such date.
+
+ 
+
+“Convertible Preferred Stock” has the meaning set forth in Section 3(a).
+
+ 
+
+“Degressive Issuance” has the meaning set forth in Section 10(f)(i)(2).
+
+ 
+
+“Degressive Issuance Sunset Date” means the date that is nine (9) calendar
+months after the Initial Issue Date.
+
+ 
+
+“Depositary” means The Depository Trust Company or its successor.
+
+ 
+
+
+
+ - 4 -
+
+ 
+
+ 
+
+“Depositary Participant” means any member of, or participant in, the Depositary.
+
+ 
+
+“Dividend” means any Regular Dividend or Participating Dividend.
+
+ 
+
+“Dividend Junior Stock” means any class or series of the Company’s stock whose
+terms do not expressly provide that such class or series will rank senior to, or
+equally with, the Convertible Preferred Stock with respect to the payment of
+dividends (without regard to whether or not dividends accumulate cumulatively).
+Dividend Junior Stock includes the Common Stock.
+
+ 
+
+“Dividend Make-Whole Amount” has the following meaning with respect to any share
+of Convertible Preferred Stock that is subject to conversion:
+
+ 
+
+(a)       if such conversion is an Optional Conversion, zero; and
+
+ 
+
+(b)       if such conversion is a Mandatory Conversion, the excess, if any, of
+(i) the Liquidation Preference of such share that would be in effect immediately
+before the Close of Business on the sixth (6th) Regular Dividend Payment Date
+(after giving effect, for the avoidance of doubt, to the accumulation of, and
+addition to the Liquidation Preference pursuant to Section 5(a)(ii)(1) in
+respect of, Regular Dividends through, and including, the sixth (6th) Regular
+Dividend Payment Date), over (ii) the sum of (x) the actual Liquidation
+Preference of such share immediately before the Close of Business on the
+Conversion Date for such conversion; and (y) an amount equal to accumulated and
+unpaid Regular Dividends on such share of Convertible Preferred Stock to, but
+excluding, such Conversion Date (but only to the extent such accumulated and
+unpaid Regular Dividends are not included in the Liquidation Preference referred
+to in the preceding clause (x)); provided, however, that if such Conversion Date
+is on or after the sixth (6th) Regular Dividend Payment Date, then the Dividend
+Make-Whole Amount will be zero.
+
+ 
+
+“Dividend Payment Date” means each Regular Dividend Payment Date with respect to
+a Regular Dividend and each date on which any declared Participating Dividend is
+scheduled to be paid on the Convertible Preferred Stock.
+
+ 
+
+“Dividend Senior Stock” means any class or series of the Company’s stock whose
+terms expressly provide that such class or series will rank senior to the
+Convertible Preferred Stock with respect to the payment of dividends (without
+regard to whether or not dividends accumulate cumulatively).
+
+ 
+
+“Effective Price” has the following meaning with respect to the issuance or sale
+of any shares of Common Stock or any Equity-Linked Securities:
+
+ 
+
+(a)       in the case of the issuance or sale of shares of Common Stock, the
+value of the consideration received by the Company for such shares, expressed as
+an amount per share of Common Stock; and
+
+ 
+
+
+
+ - 5 -
+
+ 
+
+ 
+
+(b)       in the case of the issuance or sale of any Equity-Linked Securities,
+an amount equal to a fraction whose:
+
+ 
+
+(i)       numerator is equal to sum, without duplication, of (x) the value of
+the aggregate consideration received by the Company for the issuance or sale of
+such Equity-Linked Securities; and (y) the value of the minimum aggregate
+additional consideration, if any, payable to purchase or otherwise acquire
+shares of Common Stock pursuant to such Equity-Linked Securities; and
+
+ 
+
+(ii)     denominator is equal to the maximum number of shares of Common Stock
+underlying such Equity-Linked Securities;
+
+ 
+
+provided, however, that:
+
+ 
+
+(w)    for purposes of clauses (a) and (b)(i) above, all underwriting
+commissions, placement agency commissions or similar commissions paid to any
+broker-dealer by the Company or any of its Affiliates in connection with such
+issuance or sale (excluding any other fees or expenses incurred by the Company
+or any of its Affiliates) will be added to the aggregate consideration referred
+to in such clause;
+
+ 
+
+(x)      for purposes of clause (b) above, if such minimum aggregate
+consideration, or such maximum number of shares of Common Stock, is not
+determinable at the time such Equity-Linked Securities are issued or sold, then
+(1) the initial consideration payable under such Equity-Linked Securities, or
+the initial number of shares of Common Stock underlying such Equity-Linked
+Securities, as applicable, will be used; and (2) at each time thereafter when
+such amount of consideration or number of shares becomes determinable or is
+otherwise adjusted (including pursuant to “anti-dilution” or similar
+provisions), there will be deemed to occur, for purposes of Section 10(f)(i)(2)
+and without affecting any prior adjustments theretofore made to the Conversion
+Rate, an issuance of additional Equity-Linked Securities;
+
+ 
+
+(y)     for purposes of clause (b) above, the surrender, extinguishment,
+maturity or other expiration of any such Equity-Linked Securities will be deemed
+not to constitute consideration payable to purchase or otherwise acquire shares
+of Common Stock pursuant to such Equity-Linked Securities; and
+
+ 
+
+(z)      the “value” of any such consideration will be the fair value thereof,
+as of the date such shares or Equity-Linked Securities, as applicable, are
+issued or sold, determined in good faith by the Board of Directors (or, in the
+case of cash denominated in U.S. dollars, the face amount thereof).
+
+ 
+
+“Electronic Certificate” means any electronic book-entry maintained by the
+Transfer Agent that represents any share (s) of Convertible Preferred Stock.
+
+ 
+
+“Equity-Linked Securities” means any rights, options or warrants to purchase or
+otherwise acquire (whether immediately, during specified times, upon the
+satisfaction of any conditions or otherwise) any shares of Common Stock.
+
+ 
+
+
+
+ - 6 -
+
+ 
+
+ 
+
+“Ex-Dividend Date” means, with respect to an issuance, dividend or distribution
+on the Common Stock, the first date on which shares of Common Stock trade on the
+applicable exchange or in the applicable market, regular way, without the right
+to receive such issuance, dividend or distribution (including pursuant to due
+bills or similar arrangements required by the relevant stock exchange). For the
+avoidance of doubt, any alternative trading convention on the applicable
+exchange or market in respect of the Common Stock under a separate ticker symbol
+or CUSIP number will not be considered “regular way” for this purpose.
+
+ 
+
+“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
+
+ 
+
+“Exempt Issuance” means (a) the Company’s issuance of any securities as full or
+partial consideration in connection with a merger, acquisition, consolidation or
+purchase of all or substantially all of the securities or assets of a
+corporation or other entity; (b) the Company’s issuance or grant of shares of
+Common Stock, options to purchase shares Common Stock, or any other form of
+equity-based or equity-related awards (including restricted stock units), to
+employees, prospective employees who have accepted an offer of employment,
+directors or consultants of the Company or any of its Subsidiaries pursuant to
+plans that have been approved by a majority of the independent members of the
+Board of Directors or that exist as of the Initial Issue Date; (c) the Company’s
+issuance of securities upon the exercise, exchange or conversion of any
+securities that are exercisable or exchangeable for, or convertible into, shares
+of Common Stock and are outstanding as of the Initial Issue Date, provided that
+such exercise, exchange or conversion is effected pursuant to the terms of such
+securities as in effect on the Initial Issue Date; (d) the issuance of Common
+Stock by the Company in a registered public offering the proceeds of which are
+used to purchase units in EVO Investco, LLC outstanding as of the Initial Issue
+Date pursuant to registration rights or similar rights that exist as of the
+Initial Issue Date pursuant to (i) that certain Second Amended and Restated LLC
+Agreement of EVO Investco, LLC, dated as of May 22, 2018, by and among EVO
+Investco, LLC and its member, as amended on April [__], 2020, (ii) that certain
+Exchange Agreement, dated as of May 22, 2018, as amended, by and among EVO
+Investco, LLC, EVO Payments, Inc, the holders of common units in EVO Investco,
+LLC and shares of Class C common stock or Class D common stock of EVO Payments,
+Inc. and the Call Option Holder, as defined therein, from time to time party
+thereto; and (iii) and that certain Amended and Restated Registration Rights
+Agreement, dated as of May 22, 2018, by and among EVO Payments, Inc., each of
+the persons listed on Schedules I and II thereto, such other persons that from
+time to time become parties thereto and Blueapple, Inc., as amended on April
+[__], 2020; (e) the Company’s issuance of securities pursuant to any equipment
+loan or leasing arrangement, real property leasing arrangement or debt financing
+from a bank or similar financial institution approved by a majority of the
+disinterested members of the Board of Directors; and (f) the Company’s issuance
+of the Convertible Preferred Stock and any shares of Common Stock upon
+conversion of the Convertible Preferred Stock. For purposes of this definition,
+“consultant” means a consultant that may participate in an “employee benefit
+plan” in accordance with the definition of such term in Rule 405 under the
+Securities Act.
+
+ 
+
+“First Lien Credit Agreement” means that certain First Lien Credit Agreement,
+dated as of December 22, 2016, among EVO Payments International, LLC, as
+borrower, the subsidiaries of the borrower identified therein, as guarantors,
+SunTrust Bank, as Administrative Agent, Swingline Lender and Issuing Bank, the
+lenders from time to time party thereto and Citibank, N.A. and Regions Bank, as
+Co-Syndication Agents, as in effect on March 29, 2020.
+
+ 
+
+
+
+ - 7 -
+
+ 
+
+ 
+
+“Holder” means a person in whose name any Convertible Preferred Stock is
+registered in the Register.
+
+ 
+
+“Initial Issue Date” means [closing date].
+
+ 
+
+“Initial Liquidation Preference” means one thousand dollars ($1,000.00) per
+share of Convertible Preferred Stock.
+
+ 
+
+“Last Reported Sale Price” of the Common Stock for any Trading Day means the
+closing sale price per share (or, if no closing sale price is reported, the
+average of the last bid price and the last ask price per share or, if more than
+one in either case, the average of the average last bid prices and the average
+last ask prices per share) of the Common Stock on such Trading Day as reported
+in composite transactions for the principal U.S. national or regional securities
+exchange on which the Common Stock is then listed. If the Common Stock is not
+listed on a U.S. national or regional securities exchange on such Trading Day,
+then the Last Reported Sale Price will be the last quoted bid price per share of
+Common Stock on such Trading Day in the over-the-counter market as reported by
+OTC Markets Group Inc. or a similar organization. If the Common Stock is not so
+quoted on such Trading Day, then the Last Reported Sale Price will be the
+average of the mid-point of the last bid price and the last ask price per share
+of Common Stock on such Trading Day from each of at least three nationally
+recognized independent investment banking firms the Company selects.
+
+ 
+
+“Liquidation Junior Stock” means any class or series of the Company’s stock
+whose terms do not expressly provide that such class or series will rank senior
+to, or equally with, the Convertible Preferred Stock with respect to the
+distribution of assets upon the Company’s liquidation, dissolution or winding
+up. Liquidation Junior Stock includes the Common Stock.
+
+ 
+
+“Liquidation Parity Stock” means any class or series of the Company’s stock
+(other than the Convertible Preferred Stock) whose terms expressly provide that
+such class or series will rank equally with the Convertible Preferred Stock with
+respect to the distribution of assets upon the Company’s liquidation,
+dissolution or winding up.
+
+ 
+
+“Liquidation Preference” means, with respect to the Convertible Preferred Stock,
+an amount initially equal to the Initial Liquidation Preference per share of
+Convertible Preferred Stock; provided, however, that the Liquidation Preference
+is subject to adjustment pursuant to Sections 5(a)(ii)(1).
+
+ 
+
+“Liquidation Senior Stock” means any class or series of the Company’s stock
+whose terms expressly provide that such class or series will rank senior to the
+Convertible Preferred Stock with respect to the distribution of assets upon the
+Company’s liquidation, dissolution or winding up.
+
+ 
+
+“Mandatory Conversion” has the meaning set forth in Section 10(c)(i).
+
+ 
+
+
+
+ - 8 -
+
+ 
+
+ 
+
+“Mandatory Conversion Date” means a Conversion Date designated with respect to
+any Convertible Preferred Stock pursuant to Section 10(c)(i) and 10(c)(iii).
+
+ 
+
+“Mandatory Conversion Notice” has the meaning set forth in Section 10(c)(iv).
+
+ 
+
+“Mandatory Conversion Notice Date” means, with respect to a Mandatory
+Conversion, the date on which the Company sends the Mandatory Conversion Notice
+for such Mandatory Conversion pursuant to Section 10(c)(iv).
+
+ 
+
+“Mandatory Conversion Right” has the meaning set forth in Section 10(c)(i).
+
+ 
+
+“Mandatory Conversion Threshold Price Percentage” has the following meaning with
+respect to any Mandatory Conversion: (a) if the Mandatory Conversion Date for
+such Mandatory Conversion is before the fourth (4th) Regular Dividend Payment
+Date, one hundred and eighty percent (180%); (b) if such Mandatory Conversion
+Date is on or after the fourth (4th) Regular Dividend Payment Date and before
+the sixth (6th) Regular Dividend Payment Date, one hundred and seventy percent
+(170%); (c) if such Mandatory Conversion Date is on or after the sixth (6th)
+Regular Dividend Payment Date and before the eight (8th) Regular Dividend
+Payment Date, one hundred and sixty percent (160%); and (d) if such Mandatory
+Conversion Date is on or after the eighth (8th) Regular Dividend Payment Date,
+one hundred and fifty percent (150%).
+
+ 
+
+“Market Disruption Event” means, with respect to any date, the occurrence or
+existence, during the one-half hour period ending at the scheduled close of
+trading on such date on the principal U.S. national or regional securities
+exchange or other market on which the Common Stock is listed for trading or
+trades, of any material suspension or limitation imposed on trading (by reason
+of movements in price exceeding limits permitted by the relevant exchange or
+otherwise) in the Common Stock or in any options contracts or futures contracts
+relating to the Common Stock.
+
+ 
+
+“Officer” means the Chairman of the Board of Directors, the Chief Executive
+Officer, the President, the Chief Operating Officer, the Chief Financial
+Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary,
+any Assistant Secretary or any Vice-President of the Company.
+
+ 
+
+“Open of Business” means 9:00 a.m., New York City time.
+
+ 
+
+“Optional Conversion” means the conversion of any Convertible Preferred Stock
+other than a Mandatory Conversion.
+
+ 
+
+“Optional Conversion Date” means, with respect to the Optional Conversion of any
+Convertible Preferred Stock, the first Business Day on which the requirements
+set forth in Section 10(d)(ii) for such conversion are satisfied.
+
+ 
+
+“Ownership Limitation” has the meaning set forth in Section 10(h)(i).
+
+ 
+
+
+
+ - 9 -
+
+ 
+
+ 
+
+“Participating Dividend” has the meaning set forth in Section 5(b)(i).
+
+ 
+
+“Person” or “person” means any individual, corporation, partnership, limited
+liability company, joint venture, association, joint-stock company, trust,
+unincorporated organization or government or other agency or political
+subdivision thereof. Any division or series of a limited liability company,
+limited partnership or trust will constitute a separate “person” under this
+Certificate of Designations.
+
+ 
+
+“Physical Certificate” means any certificate (other than an Electronic
+Certificate) representing any share(s) of Convertible Preferred Stock, which
+certificate is substantially in the form set forth in Exhibit A, registered in
+the name of the Holder of such share(s) and duly executed by the Company and
+countersigned by the Transfer Agent.
+
+ 
+
+“Record Date” means, with respect to any dividend or distribution on, or
+issuance to holders of, Convertible Preferred Stock or Common Stock, the date
+fixed (whether by law, contract or the Board of Directors or otherwise) to
+determine the Holders or the holders of Common Stock, as applicable, that are
+entitled to such dividend, distribution or issuance.
+
+ 
+
+“Redemption” means the repurchase of any Convertible Preferred Stock by the
+Company pursuant to Section 7.
+
+ 
+
+“Redemption Date” means the date fixed, pursuant to Section 7(d), for the
+settlement of the repurchase of the Convertible Preferred Stock by the Company
+pursuant to a Redemption.
+
+ 
+
+“Redemption Notice” has the meaning set forth in Section 7(f).
+
+ 
+
+“Redemption Notice Date” means, with respect to a Redemption of the Convertible
+Preferred Stock, the date on which the Company sends the related Redemption
+Notice pursuant to Section 7(f).
+
+ 
+
+“Redemption Price” means the consideration payable by the Company to repurchase
+any Convertible Preferred Stock upon its Redemption, calculated pursuant to
+Section 7(e).
+
+ 
+
+“Redemption Trigger Date” means the twentieth (20th) Regular Dividend Payment
+Date (or, if such date is not a Business Day, the next Business Day).
+
+ 
+
+“Reference Property” has the meaning set forth in Section 10(i)(i).
+
+ 
+
+“Reference Property Unit” has the meaning set forth in Section 10(i)(i).
+
+ 
+
+“Register” has the meaning set forth in Section 3(e).
+
+ 
+
+
+
+ - 10 -
+
+ 
+
+ 
+
+“Regular Dividend Payment Date” means, with respect to any share of Convertible
+Preferred Stock, each [Regular Dividend Payment Date #1] and [Regular Dividend
+Payment Date #2] of each year, beginning on [first Regular Dividend Payment
+Date] (or beginning on such other date specified in the Certificate representing
+such share).1
+
+ 
+
+“Regular Dividend Rate” has the following meaning (a) six percent (6%) per annum
+for the period from, and including, the Initial Issue Date to, but excluding,
+the twentieth (20th) Regular Dividend Payment Date; and (b) eight percent (8%)
+per annum from and after the twentieth (20th) Regular Dividend Payment Date;
+provided, however, that the Regular Dividend Rate is subject to adjustment
+pursuant to Section 10(h)(iii).
+
+ 
+
+“Regular Dividends” has the meaning set forth in Section 5(a)(i)(1).
+
+ 
+
+“Repurchase Upon Change of Control” means the repurchase of any Convertible
+Preferred Stock by the Company pursuant to Section 8.
+
+ 
+
+“Requisite Stockholder Approval” means the stockholder approval contemplated by
+the Nasdaq listing rules with respect to the issuance of shares of Common Stock
+upon conversion of the Convertible Preferred Stock in excess of the limitations
+imposed by such rule; provided, however, that the Requisite Stockholder Approval
+will be deemed to be obtained if, due to any amendment or binding change in the
+interpretation of the applicable listing standards of The Nasdaq Stock Market,
+such stockholder approval is no longer required for the Company to settle all
+conversions of the Convertible Preferred Stock in shares of Common Stock without
+regard to Section 10(h).
+
+ 
+
+“Requisite Stockholder Approval Deadline Date” means the earlier of (a) the date
+of the Company’s 2021 annual meeting of stockholders; and (b) August 1, 2021.
+
+ 
+
+“Restricted Stock Legend” means a legend substantially in the form set forth in
+Exhibit B.
+
+ 
+
+“Rule 144” means Rule 144 under the Securities Act (or any successor rule
+thereto), as the same may be amended from time to time.
+
+ 
+
+“Scheduled Trading Day” means any day that is scheduled to be a Trading Day on
+the principal U.S. national or regional securities exchange on which the Common
+Stock is then listed or, if the Common Stock is not then listed on a U.S.
+national or regional securities exchange, on the principal other market on which
+the Common Stock is then traded. If the Common Stock is not so listed or traded,
+then “Scheduled Trading Day” means a Business Day.
+
+ 
+
+“SEC” means the U.S. Securities and Exchange Commission.
+
+ 
+
+“Securities Act” means the U.S. Securities Act of 1933, as amended.
+
+ 
+
+“Security” means any Convertible Preferred Stock or Conversion Share.
+
+ 
+
+ 
+
+
+
+
+
+1Regular Dividend Payment Dates to be the Initial Closing Date and the date six
+months from the Initial Issue Date, with the first Regular Dividend Payment Date
+occurring on the date that is six months following the Initial Issue Date.
+
+ 
+
+ 
+
+
+
+ - 11 -
+
+ 
+
+ 
+
+“Stockholder Voting Power” means the aggregate number of votes entitled to be
+cast generally at a meeting of the Company’s stockholders held for the election
+of directors by all outstanding shares of Common Stock and all outstanding
+shares of Class B common stock, Class C common stock and Class D common stock of
+the Company, each with $0.0001 par value per share, with the calculation of such
+aggregate number of votes being conclusively made for all purposes under this
+Certificate of Designations and the Certificate of Incorporation, absent
+manifest error, by the Company based on the Company’s review of the Register,
+the Company’s other books and records, each Holder’s public filings pursuant to
+Section 13 or Section 16 of the Exchange Act and any other written evidence
+satisfactory to the Company regarding any Holder’s beneficial ownership of any
+securities of the Company.
+
+ 
+
+“Subsidiary” means, with respect to any Person, (a) any corporation, association
+or other business entity (other than a partnership or limited liability company)
+of which more than 50% of the total voting power of the Capital Stock entitled
+(without regard to the occurrence of any contingency, but after giving effect to
+any voting agreement or stockholders’ agreement that effectively transfers
+voting power) to vote in the election of directors, managers or trustees, as
+applicable, of such corporation, association or other business entity is owned
+or controlled, directly or indirectly, by such Person or one or more of the
+other Subsidiaries of such Person; and (b) any partnership or limited liability
+company where (x) more than fifty percent (50%) of the capital accounts,
+distribution rights, equity and voting interests, or of the general and limited
+partnership interests, as applicable, of such partnership or limited liability
+company are owned or controlled, directly or indirectly, by such Person or one
+or more of the other Subsidiaries of such Person, whether in the form of
+membership, general, special or limited partnership or limited liability company
+interests or otherwise; and (y) such Person or any one or more of the other
+Subsidiaries of such Person is a controlling general partner of, or otherwise
+controls, such partnership or limited liability company.
+
+ 
+
+“Successor Person” has the meaning set forth in Section 10(i)(iii).
+
+ 
+
+“Trading Day” means any day on which (a) trading in the Common Stock generally
+occurs on the principal U.S. national or regional securities exchange on which
+the Common Stock is then listed or, if the Common Stock is not then listed on a
+U.S. national or regional securities exchange, on the principal other market on
+which the Common Stock is then traded; and (b) there is no Market Disruption
+Event. If the Common Stock is not so listed or traded, then “Trading Day” means
+a Business Day.
+
+ 
+
+“Transfer Agent” means Computershare Trust Company N.A. or its successor.
+
+ 
+
+“Transfer-Restricted Security” means any Security that constitutes a “restricted
+security” (as defined in Rule 144); provided, however, that such Security will
+cease to be a Transfer-Restricted Security upon the earliest to occur of the
+following events:
+
+ 
+
+(a)            such Security is sold or otherwise transferred to a Person (other
+than the Company or an Affiliate of the Company) pursuant to a registration
+statement that was effective under the Securities Act at the time of such sale
+or transfer;
+
+ 
+
+
+
+ - 12 -
+
+ 
+
+ 
+
+(b)           such Security is sold or otherwise transferred to a Person (other
+than the Company or an Affiliate of the Company) pursuant to an available
+exemption (including Rule 144) from the registration and prospectus-delivery
+requirements of, or in a transaction not subject to, the Securities Act and,
+immediately after such sale or transfer, such Security ceases to constitute a
+“restricted security” (as defined in Rule 144); and
+
+ 
+
+(c)           (i) such Security is eligible for resale, by a Person that is not
+an Affiliate of the Company and that has not been an Affiliate of the Company
+during the immediately preceding three (3) months, pursuant to Rule 144 without
+any limitations thereunder as to volume, manner of sale, availability of current
+public information or notice; and (ii) the Company has received such
+certificates or other documentation or evidence as the Company may reasonably
+require to determine that the security is eligible for resale pursuant to clause
+(i) and the Holder, holder or beneficial owner of such Security is not, and that
+has not been during the immediately preceding three (3) months, an Affiliate of
+the Company.
+
+ 
+
+“Voting Parity Stock” means, with respect to any matter as to which Holders are
+entitled to vote pursuant to Section 9(a), each class or series of outstanding
+stock of the Company that constitutes both Dividend Parity Stock and Liquidation
+Parity Stock, if any, upon which similar voting rights are conferred and are
+exercisable with respect to such matter.
+
+ 
+
+“Wholly Owned Subsidiary” of a Person means any Subsidiary of such Person all of
+the outstanding Capital Stock or other ownership interests of which (other than
+directors’ qualifying shares) are owned by such Person or one or more Wholly
+Owned Subsidiaries of such Person.
+
+ 
+
+Section 2.                Rules of Construction. For purposes of this
+Certificate of Designations:
+
+ 
+
+(a)           “or” is not exclusive;
+
+ 
+
+(b)           “including” means “including without limitation”;
+
+ 
+
+(c)           “will” expresses a command;
+
+ 
+
+(d)           the “average” of a set of numerical values refers to the
+arithmetic average of such numerical values;
+
+ 
+
+(e)            a merger involving, or a transfer of assets by, a limited
+liability company, limited partnership or trust will be deemed to include any
+division of or by, or an allocation of assets to a series of, such limited
+liability company, limited partnership or trust, or any unwinding of any such
+division or allocation;
+
+ 
+
+(f)            words in the singular include the plural and in the plural
+include the singular, unless the context requires otherwise;
+
+ 
+
+(g)           “herein,” “hereof” and other words of similar import refer to this
+Certificate of Designations as a whole and not to any particular Section or
+other subdivision of this Certificate of Designations, unless the context
+requires otherwise;
+
+ 
+
+
+
+ - 13 -
+
+ 
+
+ 
+
+(h)           references to currency mean the lawful currency of the United
+States of America, unless the context requires otherwise; and
+
+ 
+
+(i)            the exhibits, schedules and other attachments to this Certificate
+of Designations are deemed to form part of this Certificate of Designations.
+
+ 
+
+Section 3.                The Convertible Preferred Stock.
+
+ 
+
+(a)          Designation; Par Value. A series of stock of the Company titled the
+“Series A Convertible Preferred Stock” (the “Convertible Preferred Stock”) is
+hereby designated and created out of the authorized and unissued shares of
+preferred stock of the Company. The par value of the Convertible Preferred Stock
+is $0.0001 per share.
+
+ 
+
+(b)          Number of Authorized Shares. The total authorized number of shares
+of Convertible Preferred Stock is one hundred and fifty two thousand two hundred
+and fifty (152,250); provided, however that, by resolution of the Board of
+Directors, the total number of authorized shares of Convertible Preferred Stock
+may hereafter be reduced to a number that is not less than the number of shares
+of Convertible Preferred Stock then outstanding.
+
+ 
+
+(c)           Form, Dating and Denominations.
+
+ 
+
+(i)            Form and Date of Certificates Representing Convertible Preferred
+Stock. Each Certificate representing any Convertible Preferred Stock will bear
+the legends required by Section 3(f) and may bear notations, legends or
+endorsements required by law, stock exchange rule or usage or the Depositary.
+
+ 
+
+(ii)           Certificates.
+
+ 
+
+(1)               Generally. The Convertible Preferred Stock will be originally
+issued initially in the form of one or more Electronic Certificates. Electronic
+Certificates may be exchanged for Physical Certificates, and Physical
+Certificates may be exchanged for Electronic Certificates, upon request by the
+Holder thereof pursuant to customary procedures.
+
+ 
+
+(2)               Electronic Certificates; Interpretation. For purposes of this
+Certificate of Designations, (A) each Electronic Certificate will be deemed to
+include the text of the stock certificate set forth in Exhibit A; (B) any legend
+or other notation that is required to be included on a Certificate will be
+deemed to be included in any Electronic Certificate notwithstanding that such
+Electronic Certificate may be in a form that does not permit affixing legends
+thereto; (C) any reference in this Certificate of Designations to the “delivery”
+of any Electronic Certificate will be deemed to be satisfied upon the
+registration of the electronic book-entry representing such Electronic
+Certificate in the name of the applicable Holder; (D) upon satisfaction of any
+applicable requirements of the Delaware General Corporation Law, the Certificate
+of Incorporation and the Bylaws of the Company, and any related requirements of
+the Transfer Agent, in each case for the issuance of Convertible Preferred Stock
+in the form of one or more Electronic Certificates, such Electronic Certificates
+will be deemed to be executed by the Company and countersigned by the Transfer
+Agent.
+
+ 
+
+
+
+ - 14 -
+
+ 
+
+ 
+
+(iii)          No Bearer Certificates; Denominations. The Convertible Preferred
+Stock will be issued only in registered form and only in whole numbers of
+shares.
+
+ 
+
+(iv)          Registration Numbers. Each Certificate representing any
+Convertible Preferred Stock will bear a unique registration number that is not
+affixed to any other Certificate representing any other outstanding share of
+Convertible Preferred Stock.
+
+ 
+
+(d)           Method of Payment; Delay When Payment Date is Not a Business Day.
+
+ 
+
+(i)             Method of Payment. The Company will pay all cash amounts due on
+any Convertible Preferred Stock by check issued in the name of the Holder
+thereof; provided, however, that if such Holder has delivered to the Company, no
+later than the time set forth in the next sentence, a written request to receive
+payment by wire transfer to an account of such Holder within the United States,
+then the Company will pay all such cash amounts by wire transfer of immediately
+available funds to such account. To be timely, such written request must be
+delivered no later than the Close of Business on the following date: (x) with
+respect to the payment of any declared cash Participating Dividend due on a
+Dividend Payment Date for the Convertible Preferred Stock, the related Record
+Date; and (y) with respect to any other payment, the date that is fifteen (15)
+calendar days immediately before the date such payment is due.
+
+ 
+
+(ii)            Delay of Payment when Payment Date is Not a Business Day. If the
+due date for a payment on any Convertible Preferred Stock as provided in this
+Certificate of Designations is not a Business Day, then, notwithstanding
+anything to the contrary in this Certificate of Designations, such payment may
+be made on the immediately following Business Day and no interest, dividend or
+other amount will accrue or accumulate on such payment as a result of the
+related delay. Solely for purposes of the immediately preceding sentence, a day
+on which the applicable place of payment is authorized or required by law or
+executive order to close or be closed will be deemed not to be a “Business Day.”
+
+ 
+
+(e)           Register. The Company will, or will retain another Person (who may
+be to the Transfer Agent) to act as registrar who will, keep a record (the
+“Register”) of the names and addresses of the Holders, the number of shares of
+Convertible Preferred Stock held by each Holder and the transfer, exchange,
+repurchase, Redemption and conversion of the Convertible Preferred Stock. Absent
+manifest error, the entries in the Register will be conclusive, and the Company
+and the Transfer Agent may treat each Person whose name is recorded as a Holder
+in the Register as a Holder for all purposes. The Register will be in written
+form or in any form capable of being converted into written form reasonably
+promptly. The Company will promptly provide a copy of the Register to any Holder
+upon its request.
+
+ 
+
+
+
+ - 15 -
+
+ 
+
+ 
+
+(f)            Legends.
+
+ 
+
+(i)            Restricted Stock Legend.
+
+ 
+
+(1)               Each Certificate representing any share of Convertible
+Preferred Stock that is a Transfer-Restricted Security will bear the Restricted
+Stock Legend.
+
+ 
+
+(2)               If any share of Convertible Preferred Stock is issued in
+exchange for, in substitution of, or to effect a partial conversion of, any
+other share(s) of Convertible Preferred Stock (such other share(s) being
+referred to as the “old share(s)” for purposes of this Section 3(f)(i)(2)),
+including pursuant to Section 3(h) or 3(j), then the Certificate representing
+such share will bear the Restricted Stock Legend if the certificate representing
+such old share(s) bore the Restricted Stock Legend at the time of such exchange
+or substitution, or on the related Conversion Date with respect to such
+conversion, as applicable; provided, however, that the Certificate representing
+such share need not bear the Restricted Stock Legend if such share does not
+constitute a Transfer-Restricted Security immediately after such exchange or
+substitution, or as of such Conversion Date, as applicable.
+
+ 
+
+(ii)           Other Legends. The Certificate representing any Convertible
+Preferred Stock may bear any other legend or text, not inconsistent with this
+Certificate of Designations, as may be required by applicable law or by any
+securities exchange or automated quotation system on which such Convertible
+Preferred Stock is traded or quoted or as may be otherwise reasonably determined
+by the Company to be appropriate.
+
+ 
+
+(iii)          Legends on Conversion Shares.
+
+ 
+
+(1)               Each Conversion Share will bear a legend substantially to the
+same effect as the Restricted Stock Legend if the Convertible Preferred Stock
+upon the conversion of which such Conversion Share was issued was (or would have
+been had it not been converted) a Transfer-Restricted Security at the time such
+Conversion Share was issued; provided, however, that such Conversion Share need
+not bear such a legend if the Company determines, in its reasonable discretion,
+that such Conversion Share need not bear such a legend.
+
+ 
+
+(2)               Notwithstanding anything to the contrary in Section
+3(f)(iii)(1), a Conversion Share need not bear a legend pursuant to Section
+3(f)(iii)(1) if such Conversion Share is issued in an uncertificated form that
+does not permit affixing legends thereto, provided the Company takes measures
+(including the assignment thereto of a “restricted” CUSIP number) that it
+reasonably deems appropriate to enforce the transfer restrictions referred to in
+such legend.
+
+ 
+
+(g)          Transfers and Exchanges; Transfer Taxes; Certain Transfer
+Restrictions.
+
+ 
+
+(i)            Provisions Applicable to All Transfers and Exchanges.
+
+ 
+
+(1)               Generally. Subject to this Section 3(g), Convertible Preferred
+Stock represented by any Certificate may be transferred or exchanged from time
+to time, and the Company will cause each such transfer or exchange to be
+recorded in the Register.
+
+ 
+
+
+
+ - 16 -
+
+ 
+
+ 
+
+(2)               No Services Charge; Transfer Taxes. The Company will not
+impose any service charge on any Holder for any transfer, exchange or conversion
+of any Convertible Preferred Stock, but the Company may require payment of a sum
+sufficient to cover any transfer tax or similar governmental charge that may be
+imposed in connection with any transfer, exchange or conversion of Convertible
+Preferred Stock, other than exchanges pursuant to Section 3(h) or Section 3(o)
+not involving any transfer.
+
+ 
+
+(3)               No Transfers or Exchanges of Fractional Shares.
+Notwithstanding anything to the contrary in this Certificate of Designations,
+all transfers or exchanges of Convertible Preferred Stock must be in an amount
+representing a whole number of shares of Convertible Preferred Stock, and no
+fractional share of Convertible Preferred Stock may be transferred or exchanged.
+
+ 
+
+(4)               Legends. Each Certificate representing any share of
+Convertible Preferred Stock that is issued upon transfer of, or in exchange for,
+another share of Convertible Preferred Stock will bear each legend, if any,
+required by Section 3(f).
+
+ 
+
+(5)               Settlement of Transfers and Exchanges. Upon satisfaction of
+the requirements of this Certificate of Designations to effect a transfer or
+exchange of any Convertible Preferred Stock as well as the delivery of all
+documentation reasonably required by the Transfer Agent or the Company in order
+to effect any transfer or exchange, the Company will cause such transfer or
+exchange to be effected as soon as reasonably practicable but in no event later
+than the second (2nd) Business Day after the date of such satisfaction.
+
+ 
+
+(ii)           Transfers of Shares Subject to Redemption, Repurchase or
+Conversion. Notwithstanding anything to the contrary in this Certificate of
+Designations, the Company will not be required to register the transfer of or
+exchange any share of Convertible Preferred Stock:
+
+ 
+
+(1)               that has been surrendered for conversion;
+
+ 
+
+(2)               that has been called for Redemption pursuant to a Redemption
+Notice, except to the extent that the Company fails to pay the related
+Redemption Price when due; or
+
+ 
+
+(3)               as to which a Change of Control Repurchase Notice has been
+duly delivered, and not withdrawn, pursuant to Section 8(f), except to the
+extent that the Company fails to pay the related Change of Control Repurchase
+Price when due.
+
+ 
+
+
+
+ - 17 -
+
+ 
+
+ 
+
+(h)          Exchange and Cancellation of Convertible Preferred Stock to Be
+Converted or to Be Repurchased Pursuant to a Repurchase Upon Change of Control
+or a Redemption.
+
+ 
+
+(i)            Partial Conversions of Certificates and Partial Repurchases of
+Certificates Pursuant to a Repurchase Upon Change of Control. If only a portion
+of a Holder’s Convertible Preferred Stock represented by a Certificate (such
+Certificate being referred to as the “old Certificate” for purposes of this
+Section 3(h)(i)) is to be converted pursuant to Section 10 or repurchased
+pursuant to a Repurchase Upon Change of Control, then, as soon as reasonably
+practicable after such Certificate is surrendered for such conversion or
+repurchase, as applicable, the Company will cause such Certificate to be
+exchanged for (1) one or more Certificates that each represent a whole number of
+shares of Convertible Preferred Stock and, in the aggregate, represent a total
+number of shares of Convertible Preferred Stock equal to the number of shares of
+Convertible Preferred Stock represented by such old Certificate that are not to
+be so converted or repurchased, as applicable, and deliver such Certificate(s)
+to such Holder; and (2) a Certificate representing a whole number of shares of
+Convertible Preferred Stock equal to the number of shares of Convertible
+Preferred Stock represented by such old Certificate that are to be so converted
+or repurchased, as applicable, which Certificate will be converted or
+repurchased, as applicable, pursuant to the terms of this Certificate of
+Designations; provided, however, that the Certificate referred to in this clause
+(2) need not be issued at any time after which such shares subject to such
+conversion or repurchase, as applicable, are deemed to cease to be outstanding
+pursuant to Section 3(n).
+
+ 
+
+(ii)           Cancellation of Convertible Preferred Stock that Is Converted and
+Convertible Preferred Stock that Is Repurchased Pursuant to a Repurchase Upon
+Change of Control or a Redemption. If a Holder’s Convertible Preferred Stock
+represented by a Certificate (or any portion thereof that has not theretofore
+been exchanged pursuant to Section 3(h)(i)) (such Certificate being referred to
+as the “old Certificate” for purposes of this Section 3(h)(ii)) is to be
+converted pursuant to Section 10 or repurchased pursuant to a Repurchase Upon
+Change of Control or a Redemption, then, promptly after the later of the time
+such Convertible Preferred Stock is deemed to cease to be outstanding pursuant
+to Section 3(n) and the time such Certificate is surrendered for such conversion
+or repurchase, as applicable, (A) such Certificate will be cancelled pursuant to
+Section 3(l); and (B) in the case of a partial conversion or repurchase, the
+Company will issue, execute and deliver to such Holder, and cause the Transfer
+Agent to countersign, one or more Certificates that (x) each represent a whole
+number of shares of Convertible Preferred Stock and, in the aggregate, represent
+a total number of shares of Convertible Preferred Stock equal to the number of
+shares of Convertible Preferred Stock represented by such old Certificate that
+are not to be so converted or repurchased, as applicable; (y) are registered in
+the name of such Holder; and (z) bear each legend, if any, required by Section
+3(f).
+
+ 
+
+(i)           Status of Retired Shares. Upon any share of Convertible Preferred
+Stock ceasing to be outstanding, such share will be deemed to be retired and to
+resume the status of an authorized and unissued share of preferred stock of the
+Company, and such share cannot thereafter be reissued as Convertible Preferred
+Stock.
+
+ 
+
+
+
+ - 18 -
+
+ 
+
+ 
+
+(j)            Replacement Certificates. If a Holder of any Convertible
+Preferred Stock claims that the Certificate(s) representing such Convertible
+Preferred Stock have been mutilated, lost, destroyed or wrongfully taken, then
+the Company will issue, execute and deliver, and cause the Transfer Agent to
+countersign, in each case in accordance with Section 3(c), a replacement
+Certificate representing such Convertible Preferred Stock upon surrender to the
+Company or the Transfer Agent of such mutilated Certificate, or upon delivery to
+the Company or the Transfer Agent of evidence of such loss, destruction or
+wrongful taking reasonably satisfactory to the Transfer Agent and the Company.
+In the case of a lost, destroyed or wrongfully taken Certificate representing
+any Convertible Preferred Stock, the Company and the Transfer Agent may require
+the Holder thereof to provide such security or indemnity that is reasonably
+satisfactory to the Company and the Transfer Agent to protect the Company and
+the Transfer Agent from any loss that any of them may suffer if such Certificate
+is replaced.
+
+ 
+
+Every replacement Convertible Preferred Stock issued pursuant to this Section
+3(j) will, upon such replacement, be deemed to be outstanding Convertible
+Preferred Stock, entitled to all of the benefits of this Certificate of
+Designations equally and ratably with all other Convertible Preferred Stock then
+outstanding.
+
+ 
+
+(k)          Registered Holders. Only the Holder of any Convertible Preferred
+Stock will have rights under this Certificate of Designations as the owner of
+such Convertible Preferred Stock.
+
+ 
+
+(l)           Cancellation. The Company may at any time deliver Convertible
+Preferred Stock to the Transfer Agent for cancellation. The Company will cause
+the Transfer Agent to promptly cancel all shares of Convertible Preferred Stock
+so surrendered to it in accordance with its customary procedures.
+
+ 
+
+(m)          Shares Held by the Company or its Affiliates. Without limiting the
+generality of Section 3(n), in determining whether the Holders of the required
+number of outstanding shares of Convertible Preferred Stock (and, if applicable,
+Voting Parity Stock) have concurred in any direction, waiver or consent, shares
+of Convertible Preferred Stock owned by the Company or any of its Subsidiaries
+will be deemed not to be outstanding.
+
+ 
+
+(n)          Outstanding Shares.
+
+ 
+
+(i)            Generally. The shares of Convertible Preferred Stock that are
+outstanding at any time will be deemed to be those shares of Convertible
+Preferred Stock that, at such time, have been duly executed by the Company and
+countersigned by the Transfer Agent, excluding those shares of Convertible
+Preferred Stock that have theretofore been (1) cancelled by the Transfer Agent
+or delivered to the Transfer Agent for cancellation in accordance with Section
+3(l); (2) paid in full upon their conversion or upon their repurchase pursuant
+to a Repurchase Upon Change of Control or a Redemption in accordance with this
+Certificate of Designations; or (3) deemed to cease to be outstanding to the
+extent provided in, and subject to, clause (ii), (iii), (iv) or (v) of this
+Section 3(n).
+
+ 
+
+(ii)           Replaced Shares. If any Certificate representing any share of
+Convertible Preferred Stock is replaced pursuant to Section 3(j), then such
+share will cease to be outstanding at the time of such replacement, unless the
+Transfer Agent and the Company receive proof reasonably satisfactory to them
+that such share is held by a “bona fide purchaser” under applicable law.
+
+ 
+
+
+
+ - 19 -
+
+ 
+
+ 
+
+(iii)          Shares to Be Repurchased Pursuant to a Redemption. If, on a
+Redemption Date, the Company has segregated, solely for the benefit of the
+applicable Holders, consideration in kind and amount that is sufficient to pay
+the aggregate Redemption Price due on such date, then (unless there occurs a
+default in the payment of the Redemption Price) (1) the Convertible Preferred
+Stock to be redeemed on such date will be deemed, as of such date, to cease to
+be outstanding; (2) Regular Dividends will cease to accumulate on such
+Convertible Preferred Stock from and after such Redemption Date; and (3) the
+rights of the Holders of such Convertible Preferred Stock, as such, will
+terminate with respect to such Convertible Preferred Stock, other than the right
+to receive the Redemption Price as provided in Section 7.
+
+ 
+
+(iv)          Shares to Be Repurchased Pursuant to a Repurchase Upon Change of
+Control. If, on a Change of Control Repurchase Date, the Company has segregated,
+solely for the benefit of the applicable Holders, consideration in kind and
+amount that is sufficient to pay the aggregate Change of Control Repurchase
+Price due on such date, then (unless there occurs a default in the payment of
+the Change of Control Repurchase Price) (1) the Convertible Preferred Stock to
+be repurchased on such date will be deemed, as of such date, to cease to be
+outstanding; (2) Regular Dividends will cease to accumulate on such Convertible
+Preferred Stock from and after such Change of Control Repurchase Date; and (3)
+the rights of the Holders of such Convertible Preferred Stock, as such, will
+terminate with respect to such Convertible Preferred Stock, other than the right
+to receive the Change of Control Repurchase Price as provided in Section 8 and,
+if applicable, Section 16.
+
+ 
+
+(v)           Shares to Be Converted. If any Convertible Preferred Stock is to
+be converted, then, at the Close of Business on the Conversion Date for such
+conversion (unless there occurs a default in the delivery of the Conversion
+Consideration due pursuant to Section 10 upon such conversion): (1) such
+Convertible Preferred Stock will be deemed to cease to be outstanding; (2)
+Regular Dividends will cease to accumulate on such Convertible Preferred Stock
+from and after such Conversion Date; and (3) the rights of the Holders of such
+Convertible Preferred Stock, as such, will terminate with respect to such
+Convertible Preferred Stock, other than the right to receive such Conversion
+Consideration as provided in Section 10 and, if applicable, Section 16.
+
+ 
+
+(o)           Notations and Exchanges. Without limiting any rights of Holders
+pursuant to Section 9, if any amendment, supplement or waiver to the Certificate
+of Incorporation or this Certificate of Designations changes the terms of any
+Convertible Preferred Stock, then the Company may, in its discretion, require
+the Holder of the Certificate representing such Convertible Preferred Stock to
+deliver such Certificate to the Transfer Agent so that the Transfer Agent may
+place an appropriate notation prepared by the Company on such Certificate and
+return such Certificate to such Holder. Alternatively, at its discretion, the
+Company may, in exchange for such Convertible Preferred Stock, issue, execute
+and deliver, and cause the Transfer Agent to countersign, in each case in
+accordance with Section 3(c), a new Certificate representing such Convertible
+Preferred Stock that reflects the changed terms. The failure to make any
+appropriate notation or issue a new Certificate representing any Convertible
+Preferred Stock pursuant to this Section 3(o) will not impair or affect the
+validity of such amendment, supplement or waiver.
+
+ 
+
+ - 20 -
+
+ 
+
+
+
+ 
+
+Section 4.                Ranking. The Convertible Preferred Stock will rank (a)
+senior to (i) Dividend Junior Stock with respect to the payment of dividends;
+and (ii) Liquidation Junior Stock with respect to the distribution of assets
+upon the Company’s liquidation, dissolution or winding up; (b) equally with (i)
+Dividend Parity Stock with respect to the payment of dividends; and (ii)
+Liquidation Parity Stock with respect to the distribution of assets upon the
+Company’s liquidation, dissolution or winding up; and (c) junior to (i) Dividend
+Senior Stock with respect to the payment of dividends; and (ii) Liquidation
+Senior Stock with respect to the distribution of assets upon the Company’s
+liquidation, dissolution or winding up.
+
+ 
+
+Section 5.                Dividends.
+
+ 
+
+(a)          Generally.
+
+ 
+
+(i)            Regular Dividends.
+
+ 
+
+(1)               Accumulation and Payment of Regular Dividends. The Convertible
+Preferred Stock will accumulate cumulative dividends at a rate per annum equal
+to the Regular Dividend Rate on the Liquidation Preference thereof (calculated
+in accordance with Section 5(a)(i)(2)), regardless of whether or not declared or
+funds are legally available for their payment (such dividends that accumulate on
+the Convertible Preferred Stock pursuant to this sentence, “Regular Dividends”).
+Subject to the other provisions of this Section 5 (including, for the avoidance
+of doubt, Section 5(a)(ii)(1)), such Regular Dividends will be payable
+semi-annually in arrears on each Regular Dividend Payment Date. Regular
+Dividends on the Convertible Preferred Stock will accumulate from, and
+including, the last date to which Regular Dividends have been paid (or, if no
+Regular Dividends have been paid, from, and including, the Initial Issue Date)
+to, but excluding, the next Regular Dividend Payment Date.
+
+ 
+
+(2)               Computation of Accumulated Regular Dividends. Accumulated
+Regular Dividends will be computed on the basis of a 360-day year comprised of
+twelve 30-day months. Regular Dividends on each share of Convertible Preferred
+Stock will accrue on the Liquidation Preference of such share as of immediately
+before the Close of Business on the preceding Regular Dividend Payment Date (or,
+if there is no preceding Regular Dividend Payment Date, on the Initial
+Liquidation Preference of such share).
+
+ 
+
+
+
+ - 21 -
+
+ 
+
+ 
+
+(ii)           Method of Payment; Payments in Kind.
+
+ 
+
+(1)               Generally. Regular Dividends will be paid on the Convertible
+Preferred Stock on each Regular Dividend Payment Date by adding (without
+duplication), effective immediately before the Close of Business on such Regular
+Dividend Payment Date, to the Liquidation Preference of each share of
+Convertible Preferred Stock outstanding as of such time, an amount equal to the
+unpaid Regular Dividends that have accumulated on such share to, but excluding,
+such Regular Dividend Payment Date. Such payment and addition will occur
+automatically, without the need of any action on the part of the Company or any
+other Person.
+
+ 
+
+(2)               Construction. Any Regular Dividends the amount of which is
+added to the Liquidation Preference thereof pursuant to Section 5(a)(ii)(1) will
+be deemed to be “declared” and “paid” on the Convertible Preferred Stock for all
+purposes of this Certificate of Designations.
+
+ 
+
+(b)          Participating Dividends.
+
+ 
+
+(i)            Generally. Subject to Section 5(b)(ii), no dividend or other
+distribution on the Common Stock (whether in cash, securities or other property,
+or any combination of the foregoing) will be declared or paid on the Common
+Stock unless, at the time of such declaration and payment, an equivalent
+dividend or distribution is declared and paid, respectively, on the Convertible
+Preferred Stock (such a dividend or distribution on the Convertible Preferred
+Stock, a “Participating Dividend,” and such corresponding dividend or
+distribution on the Common Stock, the “Common Stock Participating Dividend”),
+such that (1) the Record Date and the payment date for such Participating
+Dividend occur on the same dates as the Record Date and payment date,
+respectively, for such Common Stock Participating Dividend and (2) the kind and
+amount of consideration payable per share of Convertible Preferred Stock in such
+Participating Dividend is the same kind and amount of consideration that would
+be payable in the Common Stock Participating Dividend in respect of a number of
+shares of Common Stock equal to the number of shares of Common Stock that would
+be issuable (determined in accordance with Section 10 but without regard to
+Section 10(e)(ii), Section 10(e)(iii) and Section 10(h)) in respect of one (1)
+share of Convertible Preferred Stock that is converted pursuant to an Optional
+Conversion with a Conversion Date occurring on such Record Date (subject to the
+same arrangements, if any, in such Common Stock Participating Dividend not to
+issue or deliver a fractional portion of any security or other property, but
+with such arrangement applying separately to each Holder and computed based on
+the total number of shares of Convertible Preferred Stock held by such Holder on
+such Record Date).
+
+ 
+
+(ii)           Common Stock Change Events and Stock Splits, Dividends and
+Combinations. Section 5(b)(i) will not apply to, and no Participating Dividend
+will be required to be declared or paid in respect of, a Common Stock Change
+Event, or an event for which an adjustment to the Conversion Rate is required
+pursuant to Section 10(f)(i)(1), as to which Section 10(i) or Section
+10(f)(i)(1), respectively, will apply.
+
+ 
+
+(iii)          Treatment of Participating Dividends Upon Redemption, Repurchase
+Upon Change of Control or Conversion. If the Redemption Date, Change of Control
+Repurchase Date or Conversion Date of any share of Convertible Preferred Stock
+is after a Record Date for a declared Participating Dividend on the Convertible
+Preferred Stock and on or before the next Dividend Payment Date, then the Holder
+of such share at the Close of Business on such Record Date will be entitled,
+notwithstanding the related Redemption, Repurchase Upon Change of Control or
+conversion, as applicable, to receive, on or, at the Company’s election, before
+such Dividend Payment Date, such declared Participating Dividend on such share.
+
+ 
+
+
+
+ - 22 -
+
+ 
+
+ 
+
+Section 6.                Rights Upon Liquidation, Dissolution or Winding Up.
+
+ 
+
+(a)          Generally. If the Company liquidates, dissolves or winds up,
+whether voluntarily or involuntarily, then, subject to the rights of any of the
+Company’s creditors or holders of any outstanding Liquidation Senior Stock, each
+share of Convertible Preferred Stock will entitle the Holder thereof to receive
+payment for the greater of the amounts set forth in clause (i) and (ii) below
+out of the Company’s assets or funds legally available for distribution to the
+Company’s stockholders, before any such assets or funds are distributed to, or
+set aside for the benefit of, any Liquidation Junior Stock:
+
+ 
+
+(i)            the sum of:
+
+ 
+
+(1)               the Liquidation Preference per share of Convertible Preferred
+Stock; and
+
+ 
+
+(2)               all unpaid Regular Dividends that will have accumulated on
+such share to, but excluding, the date of such payment; and
+
+ 
+
+(ii)           the amount such Holder would have received in respect of the
+number of shares of Common Stock that would be issuable upon conversion of such
+share of Convertible Preferred Stock assuming the Conversion Date of such
+conversion occurs on the date of such payment.
+
+ 
+
+Upon payment of such amount in full on the outstanding Convertible Preferred
+Stock, Holders of the Convertible Preferred Stock will have no rights to the
+Company’s remaining assets or funds, if any. If such assets or funds are
+insufficient to fully pay such amount on all outstanding shares of Convertible
+Preferred Stock and the corresponding amounts payable in respect of all
+outstanding shares of Liquidation Parity Stock, if any, then, subject to the
+rights of any of the Company’s creditors or holders of any outstanding
+Liquidation Senior Stock, such assets or funds will be distributed ratably on
+the outstanding shares of Convertible Preferred Stock and Liquidation Parity
+Stock in proportion to the full respective distributions to which such shares
+would otherwise be entitled.
+
+ 
+
+(b)          Certain Business Combination Transactions Deemed Not to Be a
+Liquidation. For purposes of Section 6(a), the Company’s consolidation or
+combination with, or merger with or into, or the sale, lease or other transfer
+of all or substantially all of the Company’s assets (other than a sale, lease or
+other transfer in connection with the Company’s liquidation, dissolution or
+winding up) to, another Person will not, in itself, constitute the Company’s
+liquidation, dissolution or winding up, even if, in connection therewith, the
+Convertible Preferred Stock is converted into, or is exchanged for, or
+represents solely the right to receive, other securities, cash or other
+property, or any combination of the foregoing.
+
+ 
+
+
+
+ - 23 -
+
+ 
+
+ 
+
+Section 7.                Right of the Company to Redeem the Convertible
+Preferred Stock.
+
+ 
+
+(a)           No Right to Redeem Before the Redemption Trigger Date. The Company
+may not redeem the Convertible Preferred Stock at its option at any time before
+Redemption Trigger Date.
+
+ 
+
+(b)           Right to Redeem the Convertible Preferred Stock on or After
+Redemption Trigger Date. Subject to the terms of this Section 7, the Company has
+the right, at its election, to redeem all, but not less than all, of the
+Convertible Preferred Stock, at any time, on a Redemption Date on or after
+Redemption Trigger Date, for a cash purchase price equal to the Redemption
+Price.
+
+ 
+
+(c)           Redemption Prohibited in Certain Circumstances. The Company will
+not call for Redemption, or otherwise send a Redemption Notice in respect of the
+Redemption of, any Convertible Preferred Stock pursuant to this Section 7 unless
+(i) the Company has sufficient funds legally available, and is permitted under
+the terms of its indebtedness for borrowed money, to fully pay the Redemption
+Price in respect of all shares of Convertible Preferred Stock called for
+Redemption; and (ii) the Common Stock Liquidity Conditions are satisfied with
+respect to such Redemption.
+
+ 
+
+(d)          Redemption Date. The Redemption Date for any Redemption will be a
+Business Day of the Company’s choosing that is no more than sixty (60), nor less
+than thirty (30), calendar days after the Redemption Notice Date for such
+Redemption.
+
+ 
+
+(e)           Redemption Price. The Redemption Price for any share of
+Convertible Preferred Stock to be repurchased pursuant to a Redemption is an
+amount in cash equal to the Liquidation Preference of such share at the Close of
+Business on the Redemption Date for such Redemption plus accumulated and unpaid
+Regular Dividends on such share to, but excluding, such Redemption Date (to the
+extent such accumulated and unpaid Regular Dividends are not included in such
+Liquidation Preference).
+
+ 
+
+(f)            Redemption Notice. To call any share of Convertible Preferred
+Stock for Redemption, the Company must send to the Holder of such share a notice
+of such Redemption (a “Redemption Notice”). Such Redemption Notice must state:
+
+ 
+
+(i)            that such share has been called for Redemption;
+
+ 
+
+(ii)           the Redemption Date for such Redemption;
+
+ 
+
+(iii)          the Redemption Price per share of Convertible Preferred Stock;
+
+ 
+
+(iv)          that Convertible Preferred Stock called for Redemption may be
+converted at any time before the Close of Business on the Business Day
+immediately before the Redemption Date (or, if the Company fails to pay the
+Redemption Price due on such Redemption Date in full, at any time until such
+time as the Company pays such Redemption Price in full); and
+
+ 
+
+(v)           the Conversion Rate in effect on the Redemption Notice Date for
+such Redemption.
+
+ 
+
+
+
+ - 24 -
+
+ 
+
+ 
+
+(g)          Payment of the Redemption Price. The Company will cause the
+Redemption Price for each share of Convertible Preferred Stock subject to
+Redemption to be paid to the Holder thereof on or before the applicable
+Redemption Date.
+
+ 
+
+Section 8.                Right of Holders to Require the Company to Repurchase
+Convertible Preferred Stock upon a Change of Control.
+
+ 
+
+(a)          Right of Holders to Require the Company to Repurchase Convertible
+Preferred Stock upon a Change of Control. Subject to the other terms of this
+Section 8, if a Change of Control occurs, then each Holder will have the right
+(the “Change of Control Repurchase Right”) to require the Company to repurchase
+all, or any whole number of shares that is less than all, of such Holder’s
+Convertible Preferred Stock on the Change of Control Repurchase Date for such
+Change of Control for a cash purchase price equal to the Change of Control
+Repurchase Price.
+
+ 
+
+(b)          Funds Legally Available for Payment of Change of Control Repurchase
+Price; Covenant Not to Take Certain Actions. Notwithstanding anything to the
+contrary in this Section 8, but subject to Section 16, (i) the rights of the
+Holders to receive payment of the Change of Control Repurchase Price pursuant to
+this Section 8 upon the occurrence of a Change of Control are subject to the
+prior repayment in full of the loans and all other obligations that are accrued
+and payable under the terms of the Company’s First Lien Credit Agreement and the
+termination of the commitments and the termination of all outstanding letters of
+credit to the extent required under such First Lien Credit Agreement; (ii) the
+Company will not be obligated to pay the Change of Control Repurchase Price of
+any shares of Convertible Preferred Stock to the extent, and only to the extent,
+the Company does not have sufficient funds legally available to pay the same;
+and (iii) if the Company does not have sufficient funds legally available to pay
+the Change of Control Repurchase Price of all shares of Convertible Preferred
+Stock that are otherwise to be repurchased pursuant to a Repurchase Upon Change
+of Control, then (1) the Company will pay the maximum amount of such Change of
+Control Repurchase Price that can be paid out of funds legally available for
+payment, which payment will be made pro rata to each Holder based on the total
+number of shares of Convertible Preferred Stock of such Holder that were
+otherwise to be repurchased pursuant to such Repurchase Upon Change of Control;
+and (2) the Company will cause all such shares as to which the Change of Control
+Repurchase Price was not paid to be returned to the Holder(s) thereof, and such
+shares will be deemed to remain outstanding. The Company will not voluntarily
+take any action, or voluntarily engage in any transaction, that would result in
+a Change of Control unless the Company has (and will have through the date of
+payment) sufficient funds legally available to fully pay the maximum aggregate
+Change of Control Repurchase Price that would be payable in respect of such
+Change of Control on all shares of Conversion Preferred Stock then outstanding.
+
+ 
+
+(c)          Change of Control Repurchase Date. The Change of Control Repurchase
+Date for any Change of Control will be a Business Day of the Company’s choosing
+that is no more than thirty five (35), nor less than twenty (20), Business Days
+after the date the Company sends the related Change of Control Notice pursuant
+to Section 8(e).
+
+ 
+
+
+
+ - 25 -
+
+ 
+
+ 
+
+(d)          Change of Control Repurchase Price. The Change of Control
+Repurchase Price for any share of Convertible Preferred Stock to be repurchased
+upon a Repurchase Upon Change of Control following a Change of Control is an
+amount in cash equal to one hundred and fifty percent (150%) (or, if the Change
+of Control Repurchase Date for such Change of Control is on or after the sixth
+(6th) Regular Dividend Payment Date, one hundred percent (100%)) of the sum of
+(i) the Liquidation Preference of such share at the Close of Business on such
+Change of Control Repurchase Date; and (ii) accumulated and unpaid Regular
+Dividends on such share to, but excluding, such Change of Control Repurchase
+Date (to the extent such accumulated and unpaid Regular Dividends are not
+included in such Liquidation Preference).
+
+ 
+
+(e)          Change of Control Notice. On or before the Business Day after the
+effective date of a Change of Control, the Company will send to each Holder a
+notice of such Change of Control (a “Change of Control Notice”). Such Change of
+Control Notice must state:
+
+ 
+
+(i)            briefly, the events causing such Change of Control;
+
+ 
+
+(ii)           the expected effective date of such Change of Control;
+
+ 
+
+(iii)          the procedures that a Holder must follow to require the Company
+to repurchase its Convertible Preferred Stock pursuant to this Section 8,
+including the deadline for exercising the Change of Control Repurchase Right and
+the procedures for submitting and withdrawing a Change of Control Repurchase
+Notice;
+
+ 
+
+(iv)          the Change of Control Repurchase Date for such Change of Control;
+
+ 
+
+(v)           the Change of Control Repurchase Price per share of Convertible
+Preferred Stock;
+
+ 
+
+(vi)          the Conversion Rate in effect on the date of such Change of
+Control Notice and a description and quantification of any adjustments to the
+Conversion Rate that may result from such Change of Control;
+
+ 
+
+(vii)         that shares of Convertible Preferred Stock for which a Change of
+Control Repurchase Notice has been duly tendered and not duly withdrawn must be
+delivered to the Company for the Holder thereof to be entitled to receive the
+Change of Control Repurchase Price; and
+
+ 
+
+(viii)        that shares of Convertible Preferred Stock that are subject to a
+Change of Control Repurchase Notice that has been duly tendered may be converted
+only if such Change of Control Repurchase Notice is withdrawn in accordance with
+this Certificate of Designations.
+
+ 
+
+ - 26 -
+
+ 
+
+ 
+
+ 
+
+(f)            Procedures to Exercise the Change of Control Repurchase Right.
+
+ 
+
+(i)            Delivery of Change of Control Repurchase Notice and Shares of
+Convertible Preferred Stock to Be Repurchased. To exercise its Change of Control
+Repurchase Right for any share(s) of Convertible Preferred Stock following a
+Change of Control, the Holder thereof must deliver to the Company:
+
+ 
+
+(1)               before the Close of Business on the Business Day immediately
+before the related Change of Control Repurchase Date (or such later time as may
+be required by law), a duly completed, written Change of Control Repurchase
+Notice with respect to such share(s); and
+
+ 
+
+(2)               such share(s), duly endorsed for transfer, to the extent such
+share(s) are represented by one or more Physical Certificates.
+
+ 
+
+(ii)           Contents of Change of Control Repurchase Notices. Each Change of
+Control Repurchase Notice with respect to any share(s) of Convertible Preferred
+Stock must state:
+
+ 
+
+(1)               if such share(s) are represented by one or more Physical
+Certificates, the certificate number(s) of such Physical Certificate(s);
+
+ 
+
+(2)               the number of shares of Convertible Preferred Stock to be
+repurchased, which must be a whole number; and
+
+ 
+
+(3)               that such Holder is exercising its Change of Control
+Repurchase Right with respect to such share(s).
+
+ 
+
+(iii)          Withdrawal of Change of Control Repurchase Notice. A Holder that
+has delivered a Change of Control Repurchase Notice with respect to any share(s)
+of Convertible Preferred Stock may withdraw such Change of Control Repurchase
+Notice by delivering a written notice of withdrawal to the Company at any time
+before the Close of Business on the Business Day immediately before the related
+Change of Control Repurchase Date. Such withdrawal notice must state:
+
+ 
+
+(1)               if such share(s) are represented by one or more Physical
+Certificates, the certificate number(s) of such Physical Certificate(s);
+
+ 
+
+(2)               the number of shares of Convertible Preferred Stock to be
+withdrawn, which must be a whole number; and
+
+ 
+
+(3)               the number of shares of Convertible Preferred Stock, if any,
+that remain subject to such Change of Control Repurchase Notice, which must be a
+whole number.
+
+ 
+
+If any Holder delivers to the Company any such withdrawal notice withdrawing any
+share(s) of Convertible Preferred Stock from any Change of Control Repurchase
+Notice previously delivered to the Company, and such share(s) have been
+surrendered to the Company, then such share(s) will be returned to the Holder
+thereof.
+
+ 
+
+(g)           Payment of the Change of Control Repurchase Price. Subject to
+Section 8(b), the Company will cause the Change of Control Repurchase Price for
+each share of Convertible Preferred Stock to be repurchased pursuant to a
+Repurchase Upon Change of Control to be paid to the Holder thereof on or before
+the later of (i) the applicable Change of Control Repurchase Date; and (ii) the
+date such share is tendered to the Transfer Agent or the Company.
+
+ 
+
+
+
+ - 27 -
+
+ 
+
+ 
+
+(h)           Compliance with Securities Laws. Notwithstanding anything in this
+Certificate of Designations to the contrary, in connection with any offer to
+repurchase by the Company in connection with a Change of Control, the Company
+will, if required, (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and
+any other tender offer rules under the Exchange Act; (ii) file a Schedule TO or
+any other required filing under the Exchange Act; and (iii) otherwise comply
+with all federal and state securities laws.
+
+ 
+
+Section 9.               Voting Rights. The Convertible Preferred Stock will
+have no voting rights except as set forth in this Section 9 or as provided in
+the Certificate of Incorporation or required by the Delaware General Corporation
+Law.
+
+ 
+
+(a)          Voting and Consent Rights with Respect to Specified Matters.
+
+ 
+
+(i)            Generally. Subject to the other provisions of this Section 9(a),
+while any Convertible Preferred Stock is outstanding, each following event will
+require, and cannot be effected without, the affirmative vote or consent of
+Holders, and holders of each class or series of Voting Parity Stock, if any,
+with similar voting or consent rights with respect to such event, representing
+at least two thirds (2/3rds) of the combined outstanding voting power of the
+Convertible Preferred Stock and such Voting Parity Stock, if any:
+
+ 
+
+(1)               any amendment or modification of the Certificate of
+Incorporation to authorize or create, or to increase the authorized number of
+shares of, any class or series of Dividend Parity Stock, Liquidation Parity
+Stock, Dividend Senior Stock or Liquidation Senior Stock;
+
+ 
+
+(2)               any amendment, modification or repeal of any provision of the
+Certificate of Incorporation or this Certificate of Designations that adversely
+affects the rights, preferences or voting powers of the Convertible Preferred
+Stock (other than an amendment, modification or repeal permitted by Section
+9(a)(iii)); or
+
+ 
+
+(3)               the Company’s consolidation or combination with, or merger
+with or into, another Person, or any binding or statutory share exchange or
+reclassification involving the Convertible Preferred Stock, in each case unless:
+
+ 
+
+(A)             the Convertible Preferred Stock either (x) remains outstanding
+after such consolidation, combination, merger, share exchange or
+reclassification; or (y) is converted or reclassified into, or is exchanged for,
+or represents solely the right to receive, preference securities of the
+continuing, resulting or surviving Person of such consolidation, combination,
+merger, share exchange or reclassification, or the parent thereof;
+
+ 
+
+
+
+ - 28 -
+
+ 
+
+ 
+
+(B)              the Convertible Preferred Stock that remains outstanding or
+such preference securities, as applicable, have rights, preferences and voting
+powers that, taken as a whole, are not materially less favorable to the Holders
+or the holders thereof, as applicable, than the rights, preferences and voting
+powers, taken as a whole, of the Convertible Preferred Stock immediately before
+the consummation of such consolidation, combination, merger, share exchange or
+reclassification; and
+
+ 
+
+(C)              the issuer of the Convertible Preferred Stock that remains
+outstanding or such preference securities, as applicable, is a corporation duly
+organized and existing under the laws of the United States of America, any State
+thereof or the District of Columbia that, if not the Company, will succeed to
+the Company under this Certificate of Designations and the Convertible Preferred
+Stock;
+
+ 
+
+provided, however, that (x) a consolidation, combination, merger, share exchange
+or reclassification that satisfies the requirements of clauses (A), (B) and (C)
+of Section 9(a)(i)(3) will not require any vote or consent pursuant to Section
+9(a)(i)(1) or 9(a)(i)(2); and (y) each of the following will be deemed not to
+adversely affect the rights, preferences or voting powers of the Convertible
+Preferred Stock (or cause any of the rights, preferences or voting powers of any
+such preference securities to be “materially less favorable” for purposes of
+Section 9(a)(i)(3)(B)) and will not require any vote or consent pursuant to
+Section 9(a)(i)(1), 9(a)(i)(2) or 9(a)(i)(3):
+
+ 
+
+(I)            any increase in the number of the authorized but unissued shares
+of the Company’s undesignated preferred stock;
+
+ 
+
+(II)           the creation and issuance, in and of itself, or increase in the
+authorized or issued number, of any class or series of stock that constitutes
+both Dividend Junior Stock and Liquidation Junior Stock; and
+
+ 
+
+(III)          the application of Section 10(i), including the execution and
+delivery of any supplemental instruments pursuant to Section 10(i)(iii) solely
+to give effect to such provision.
+
+ 
+
+(ii)           Where Some But Not All Classes or Series of Stock Are Adversely
+Affected. If any event set forth in Section 9(a)(i)(1), 9(a)(i)(2) or 9(a)(i)(3)
+would require the approval of one or more, but not all, classes or series of
+Voting Parity Stock (which term, solely for purposes of this sentence, includes
+the Convertible Preferred Stock), then those classes or series whose approval is
+not required pursuant to their terms will be deemed not to have voting or
+consent rights with respect to such event. Furthermore, an amendment,
+modification or repeal described in Section 9(a)(i)(2) above that adversely
+affects the special rights, preferences or voting powers of the Convertible
+Preferred Stock cannot be effected without the affirmative vote or consent of
+Holders, voting separately as a class, of at least two thirds (2/3rds) of the
+Convertible Preferred Stock then outstanding.
+
+ 
+
+
+
+ - 29 -
+
+ 
+
+ 
+
+(iii)          Certain Amendments Permitted Without Consent. Notwithstanding
+anything to the contrary in Section 9(a), the Company may amend, modify or
+repeal any of the terms of the Convertible Preferred Stock without the vote or
+consent of any Holder to:
+
+ 
+
+(1)               cure any ambiguity or correct any omission, defect or
+inconsistency in this Certificate of Designations or the Certificates
+representing the Convertible Preferred Stock, including the filing of a
+certificate of correction, or a corrected instrument, pursuant to Section 103(f)
+of the Delaware General Corporation Law in connection therewith; or
+
+ 
+
+(2)               make any other change to the Certificate of Incorporation,
+this Certificate of Designations or the Certificates representing the
+Convertible Preferred Stock that does not, individually or in the aggregate with
+all other such changes, adversely affect the rights of any Holder (other than
+any Holders that have consented to such change), as such, in any material
+respect.
+
+ 
+
+(b)          Right to Vote with Holders of Common Stock on an As-Converted
+Basis. Subject to the other provisions of, and without limiting the other voting
+rights provided in, this Section 9, and except as provided in the Certificate of
+Incorporation or required by the Delaware General Corporation Law, the Holders
+will have the right, from and after the Antitrust Clearance Date, to vote
+together as a single class with the holders of the Common Stock on each matter
+submitted for a vote or consent by the holders of the Common Stock, and, solely
+for these purposes, (i) the Convertible Preferred Stock of each Holder will
+entitle such Holder to cast a number of votes on such matter equal to the number
+of votes such Holder would have been entitled to cast if such Holder were the
+holder of record, as of the record or other relevant date for such matter, of a
+number of shares of Common Stock equal to the number of shares of Common Stock
+that would be issuable (determined in accordance with Section 10(e), including
+Section 10(e)(ii), but without regard to Section 10(e)(iii)) upon conversion of
+such Convertible Preferred Stock assuming such Convertible Preferred Stock were
+converted pursuant to an Optional Conversion with a Conversion Date occurring on
+such record or other relevant date; and (ii) the Holders will be entitled to
+notice of all stockholder meetings or proposed actions by written consent in
+accordance with the Certificate of Incorporation, the Bylaws of the Company, and
+the Delaware General Corporation Law as if the Holders were holders of Common
+Stock. For the avoidance of doubt, the voting rights set forth in this Section
+9(b) (i) will be limited or eliminated, as applicable, to the same extent to
+which the right to convert the Convertible Preferred Stock is limited or
+eliminated pursuant to Section 10(h); and (ii) will not apply at any time before
+the Antitrust Clearance Date. For the avoidance of doubt, and without limiting
+the voting rights set forth in this Section 9(b), no Holder of Convertible
+Preferred Stock will be treated as the holder of the shares of Common Stock
+issuable upon conversion of such Convertible Preferred Stock before the time set
+forth in Section 10(d)(iv) in connection with the conversion of such Convertible
+Preferred Stock.
+
+ 
+
+
+
+ - 30 -
+
+ 
+
+ 
+
+(c)           Procedures for Voting and Consents.
+
+ 
+
+(i)            Voting Power of the Convertible Preferred Stock and Voting Parity
+Stock. Each share of Convertible Preferred Stock will be entitled to one vote on
+each matter on which the Holders of the Convertible Preferred Stock are entitled
+to vote separately as a class and not together with the holders of any other
+class or series of stock. The respective voting powers of the Convertible
+Preferred Stock and all classes or series of Voting Parity Stock entitled to
+vote on any matter together as a single class will be determined (including for
+purposes of determining whether a plurality, majority or other applicable
+portion of votes has been obtained) in proportion to their respective
+liquidation amounts. Solely for purposes of the preceding sentence, the
+liquidation amount of the Convertible Preferred Stock or any such class or
+series of Voting Parity Stock will be the maximum amount payable in respect of
+the Convertible Preferred Stock or such class or series, as applicable, assuming
+the Company is liquidated pursuant to Section 6 on the record date for the
+applicable vote or consent (or, if there is no record date, on the date of such
+vote or consent).
+
+ 
+
+(ii)           Written Consent in Lieu of Stockholder Meeting. A consent or
+affirmative vote of the Holders pursuant to Section 9(a) may be given or
+obtained either in writing without a meeting or in person or by proxy at a
+regular annual meeting or a special meeting of stockholders.
+
+ 
+
+Section 10.            Conversion.
+
+ 
+
+(a)           Generally. Subject to the provisions of this Section 10, the
+Convertible Preferred Stock may be converted only pursuant to a Mandatory
+Conversion or an Optional Conversion.
+
+ 
+
+(b)          Conversion at the Option of the Holders.
+
+ 
+
+(i)            Conversion Right; When Shares May Be Submitted for Optional
+Conversion. Subject to the provisions of this Section 10, Holders will have the
+right to submit all, or any whole number of shares that is less than all, of
+their shares of Convertible Preferred Stock pursuant to an Optional Conversion
+at any time after the date on which the Company has first held a meeting of its
+stockholders for the purpose of obtaining the Requisite Stockholder Approval;
+provided, however, that, notwithstanding anything to the contrary in this
+Certificate of Designations and in addition to any other requirements for
+Optional Conversion of such shares of Convertible Preferred Stock,
+
+ 
+
+(1)               if a Change of Control Repurchase Notice is validly delivered
+pursuant to Section 8(f)(i) with respect to any share of Convertible Preferred
+Stock, then such share may not be submitted for Optional Conversion, except to
+the extent (A) such share is not subject to such notice; (B) such notice is
+withdrawn in accordance with Section 8(f)(iii); or (C) the Company fails to pay
+the Change of Control Repurchase Price for such share in accordance with this
+Certificate of Designations;
+
+ 
+
+(2)               shares of Convertible Preferred Stock that are called for
+Redemption may not be submitted for Optional Conversion after the Close of
+Business on the Business Day immediately before the related Redemption Date (or,
+if the Company fails to pay the Redemption Price due on such Redemption Date in
+full, at any time until such time as the Company pays such Redemption Price in
+full); and
+
+ 
+
+
+
+ - 31 -
+
+ 
+
+ 
+
+(3)               shares of Convertible Preferred Stock that are subject to
+Mandatory Conversion may not be submitted for Optional Conversion after the
+Close of Business on the Business Day immediately before the related Mandatory
+Conversion Date.
+
+ 
+
+(ii)           Conversions of Fractional Shares Not Permitted. Notwithstanding
+anything to the contrary in this Certificate of Designations, in no event will
+any Holder be entitled to convert a number of shares of Convertible Preferred
+Stock that is not a whole number.
+
+ 
+
+(c)           Mandatory Conversion at the Company’s Election.
+
+ 
+
+(i)            Mandatory Conversion Right. Subject to the provisions of this
+Section 10, the Company has the right (the “Mandatory Conversion Right”),
+exercisable at its election, to designate any Business Day after the Initial
+Issue Date as a Conversion Date for the conversion (such a conversion, a
+“Mandatory Conversion”) of all, but not less than all, of the outstanding shares
+of Convertible Preferred Stock, but only if the Last Reported Sale Price per
+share of Common Stock exceeds the product of the Mandatory Conversion Threshold
+Price Percentage and the Conversion Price on each of at least twenty (20)
+Trading Days (whether or not consecutive) during the thirty (30) consecutive
+Trading Days ending on, and including, the Trading Day immediately before the
+Mandatory Conversion Notice Date for such Mandatory Conversion.
+
+ 
+
+(ii)           Mandatory Conversion Prohibited in Certain Circumstances. The
+Company will not exercise its Mandatory Conversion Right, or otherwise send a
+Mandatory Conversion Notice, with respect to any Convertible Preferred Stock
+pursuant to this Section 10(c) unless (1) the Common Stock Liquidity Conditions
+are satisfied with respect to the Mandatory Conversion; and (2) either (x) the
+Requisite Stockholder Approval is obtained or (y) the Company has previously
+held one or more meetings of stockholders for the purposes of obtaining the
+Requisite Stockholder Approval and the Mandatory Conversion Date for such
+Mandatory Conversion occurs after the sixth (6th) Regular Dividend Payment Date.
+Notwithstanding anything to the contrary in this Section 10(c), the Company’s
+exercise of its Mandatory Conversion Right, and any related Mandatory Conversion
+Notice, will not apply to any share of Convertible Preferred Stock as to which a
+Change of Control Repurchase Notice has been duly delivered, and not withdrawn,
+pursuant to Section 8(f).
+
+ 
+
+(iii)          Mandatory Conversion Date. The Mandatory Conversion Date for any
+Mandatory Conversion will be a Business Day of the Company’s choosing that is no
+more than fifteen (15), nor less than ten (10), Business Days after the
+Mandatory Conversion Notice Date for such Mandatory Conversion.
+
+ 
+
+
+
+ - 32 -
+
+ 
+
+ 
+
+(iv)          Mandatory Conversion Notice. To exercise its Mandatory Conversion
+Right with respect to any shares of Convertible Preferred Stock, the Company
+must send to each Holder of such shares a written notice of such exercise (a
+“Mandatory Conversion Notice”). Such Mandatory Conversion Notice must state:
+
+ 
+
+(1)               that the Company has exercised its Mandatory Conversion Right
+to cause the Mandatory Conversion of the shares;
+
+ 
+
+(2)               the Mandatory Conversion Date for such Mandatory Conversion
+and the date scheduled for the settlement of such Mandatory Conversion;
+
+ 
+
+(3)               that shares of Convertible Preferred Stock subject to
+Mandatory Conversion may be converted earlier at the option of the Holders
+thereof pursuant to an Optional Conversion at any time before the Close of
+Business on the Business Day immediately before the Mandatory Conversion Date;
+and
+
+ 
+
+(4)               the Conversion Price and the Conversion Rate in effect on the
+Mandatory Conversion Notice Date for such Mandatory Conversion.
+
+ 
+
+(d)           Conversion Procedures.
+
+ 
+
+(i)            Mandatory Conversion. If the Company duly exercises, in
+accordance with this Section 10(c), its Mandatory Conversion Right with respect
+to any share of Convertible Preferred Stock, then (1) the Mandatory Conversion
+of such share will occur automatically and without the need for any action on
+the part of the Holder(s) thereof; and (2) the shares of Common Stock due upon
+such Mandatory Conversion will be registered in the name of, and, if applicable,
+the cash due upon such Mandatory Conversion will be delivered to, the Holder(s)
+of such share of Convertible Preferred Stock as of the Close of Business on the
+related Mandatory Conversion Date.
+
+ 
+
+(ii)           Requirements for Holders to Exercise Optional Conversion Right.
+
+ 
+
+(1)               Generally. To convert any share of Convertible Preferred Stock
+pursuant to an Optional Conversion, the Holder of such share must (w) complete,
+manually sign and deliver to the Company a Conversion Notice; (x) deliver any
+Physical Certificate representing such Convertible Preferred Stock to the
+Company (at which time such Optional Conversion will become irrevocable); (y)
+furnish any endorsements and transfer documents that the Company may require;
+and (z) if applicable, pay any documentary or other taxes as pursuant to Section
+11(d).
+
+ 
+
+(2)               Optional Conversion Permitted only During Business Hours.
+Convertible Preferred Stock may be surrendered for Optional Conversion only
+after the Open of Business and before the Close of Business on a day that is a
+Business Day.
+
+ 
+
+(iii)          No Adjustments for Accumulated Regular Dividends. Without
+limiting any adjustments to the Liquidation Preference required by this
+Certificate of Designations, the Conversion Rate will not be adjusted to account
+for any accumulated and unpaid Regular Dividends on any Convertible Preferred
+Stock being converted.
+
+ 
+
+
+
+ - 33 -
+
+ 
+
+ 
+
+(iv)          When Holders Become Stockholders of Record of the Shares of Common
+Stock Issuable Upon Conversion. The Person in whose name any share of Common
+Stock is issuable upon conversion of any Convertible Preferred Stock will be
+deemed to become the holder of record of such share as of the Close of Business
+on the Conversion Date for such conversion.
+
+ 
+
+(e)           Settlement upon Conversion.
+
+ 
+
+(i)            Generally. Subject to Section 10(e)(ii), Section 10(e)(iii),
+Section 10(h) and Section 14(b), the consideration due upon settlement of the
+conversion of each share of Convertible Preferred Stock will consist of a number
+of shares of Common Stock equal to the product of (A) the Conversion Rate in
+effect immediately before the Close of Business on the Conversion Date for such
+conversion; and (B) the quotient obtained by dividing (I) the sum of (x) the
+Liquidation Preference of such share of Convertible Preferred Stock immediately
+before the Close of Business on such Conversion Date; (y) an amount equal to
+accumulated and unpaid Regular Dividends on such share of Convertible Preferred
+Stock to, but excluding, such Conversion Date (but only to the extent such
+accumulated and unpaid Regular Dividends are not included in the Liquidation
+Preference referred to in the preceding clause (x)); and (z) the Dividend
+Make-Whole Amount for such conversion, by (II) the Initial Liquidation
+Preference per share of Convertible Preferred Stock.
+
+ 
+
+(ii)           Payment of Cash in Lieu of any Fractional Share of Common Stock.
+Subject to Section 14(b), in lieu of delivering any fractional share of Common
+Stock otherwise due upon conversion of any Convertible Preferred Stock, the
+Company will, to the extent it is legally able to do so, pay cash based on the
+Last Reported Sale Price per share of Common Stock on the Conversion Date for
+such conversion (or, if such Conversion Date is not a Trading Day, the
+immediately preceding Trading Day).
+
+ 
+
+(iii)          Company’s Right to Settle Optional Conversions in Cash. If any
+Convertible Preferred Stock is to be converted pursuant to an Optional
+Conversion, then the Company will have the right to settle such Optional
+Conversion of such Convertible Preferred Stock (or any portion thereof that
+represents a whole number of shares) solely in cash in an amount equal to the
+product of (1) the number of shares of Common Stock that would be issuable upon
+such Optional Conversion of such Convertible Preferred Stock (or such portion
+thereof), determined in accordance with this Section 10 but without regard to
+Section 10(e)(ii) or this Section 10(e)(iii)); and (2) the Last Reported Sale
+Price per share of Common Stock on the Conversion Date for such Optional
+Conversion. Such right can be exercised by Company solely by providing written
+notice to the Holder of such Convertible Preferred Stock no later than the
+Business Day after such Conversion Date, which notice states (x) that the
+Company has elected to cash settle such Optional Conversion; and (y) the number
+of shares of such Convertible Preferred Stock as to which such election is made.
+Once such written notice is so provided exercising such right, such exercise
+will be irrevocable with respect to such Optional Conversion (without affecting
+the Company’s right to exercise or not exercise such right with respect to any
+other Optional Conversion). Notwithstanding anything to the contrary in this
+Section 10(e)(iii), the Company will not be entitled to exercise its right to
+settle any Optional Conversion of Convertible Preferred Stock in cash pursuant
+to this Section 10(e)(iii) unless the Company has sufficient funds legally
+available, and is permitted under the terms of its indebtedness for borrowed
+money, to fully pay the cash amounts that would be payable in respect of such
+election
+
+ 
+
+
+
+ - 34 -
+
+ 
+
+ 
+
+(iv)          Delivery of Conversion Consideration. The Company will pay or
+deliver, as applicable, the Conversion Consideration due upon conversion of any
+Convertible Preferred Stock on or before the second (2nd) Business Day
+immediately after the Conversion Date for such conversion.
+
+ 
+
+(f)            Conversion Rate Adjustments.
+
+ 
+
+(i)            Events Requiring an Adjustment to the Conversion Rate. The
+Conversion Rate will be adjusted from time to time as follows:
+
+ 
+
+(1)               Stock Dividends, Splits and Combinations. If the Company
+issues solely shares of Common Stock as a dividend or distribution on all or
+substantially all shares of the Common Stock, or if the Company effects a stock
+split or a stock combination of the Common Stock (in each case excluding an
+issuance solely pursuant to a Common Stock Change Event, as to which Section
+10(i) will apply), then the Conversion Rate will be adjusted based on the
+following formula:
+
+ 
+
+[tm2014143d1_ex10-1img01.jpg]
+
+ 
+
+where:
+
+ 
+
+CR0= the Conversion Rate in effect immediately before the Close of Business on
+the Record Date for such dividend or distribution, or immediately before the
+Close of Business on the effective date of such stock split or stock
+combination, as applicable;
+
+ 
+
+CR1= the Conversion Rate in effect immediately after the Close of Business on
+such Record Date or effective date, as applicable;
+
+ 
+
+OS0= the number of shares of Common Stock outstanding immediately before the
+Close of Business on such Record Date or effective date, as applicable, without
+giving effect to such dividend, distribution, stock split or stock combination;
+and
+
+ 
+
+OS1= the number of shares of Common Stock outstanding immediately after giving
+effect to such dividend, distribution, stock split or stock combination.
+
+ 
+
+
+
+ - 35 -
+
+ 
+
+ 
+
+If any dividend, distribution, stock split or stock combination of the type
+described in this Section 10(f)(i)(1) is declared or announced, but not so paid
+or made, then the Conversion Rate will be readjusted, effective as of the date
+the Board of Directors, or any Officer acting pursuant to authority conferred by
+the Board of Directors, determines not to pay such dividend or distribution or
+to effect such stock split or stock combination, to the Conversion Rate that
+would then be in effect had such dividend, distribution, stock split or stock
+combination not been declared or announced.
+
+ 
+
+(2)               Degressive Issuances. Subject to Section 10(h), if, at any
+time during the period from, and including, the Initial Issue Date to, and
+including, the Degressive Issuance Sunset Date, the Company or any of its
+Subsidiaries issues or otherwise sells any shares of Common Stock, or any
+Equity-Linked Securities, in each case at an Effective Price per share of Common
+Stock that is less than the Conversion Price in effect (before giving effect to
+the adjustment required by this Section 10(f)(i)(2)) as of the date of the
+issuance or sale of such shares or Equity-Linked Securities (such an issuance or
+sale, a “Degressive Issuance”), then, effective as of the Close of Business on
+such date, the Conversion Rate will be increased to an amount equal to (x) the
+Initial Liquidation Preference per share of Convertible Preferred Stock, divided
+by (y) such Effective Price per share of Common Stock; provided, however, that
+(A) the Conversion Rate will not be adjusted pursuant to this Section
+10(f)(i)(2) as a result of an Exempt Issuance; (B) the issuance of shares of
+Common Stock pursuant to any such Equity-Linked Securities will not constitute
+an additional issuance or sale of shares of Common Stock for purposes of this
+Section 10(f)(i)(2) (it being understood, for the avoidance of doubt, that the
+issuance or sale of such Equity-Linked Securities, or any re-pricing or
+amendment thereof, will be subject to this Section 10(f)(i)(2)); and (C) in no
+event will the Conversion Rate be decreased pursuant to this Section
+10(f)(i)(2).
+
+ 
+
+For purposes of this Section 10(f)(i)(2), any re-pricing or amendment of any
+Equity-Linked Securities (including, for the avoidance of doubt, any
+Equity-Linked Securities existing as of the Initial Issue Date) will be deemed
+to be the issuance of additional Equity-Linked Securities, without affecting any
+prior adjustments theretofore made to the Conversion Rate.
+
+ 
+
+(ii)           No Other Required Adjustments. Without limiting the operation of
+Sections 5(a)(ii)(1) and 10(e)(i), the Company will not be required to adjust
+the Conversion Rate except pursuant to Section 10(f)(i).
+
+ 
+
+(iii)          Determination of the Number of Outstanding Shares of Common
+Stock. For purposes of Section 10(f)(i), the number of shares of Common Stock
+outstanding at any time will (1) include shares issuable in respect of scrip
+certificates issued in lieu of fractions of shares of Common Stock; and (2)
+exclude shares of Common Stock held in the Company’s treasury (unless the
+Company pays any dividend or makes any distribution on shares of Common Stock
+held in its treasury).
+
+ 
+
+(iv)          Calculations. All calculations with respect to the Conversion Rate
+and adjustments thereto will be made to the nearest 1/10,000th of a share of
+Common Stock (with 5/100,000ths rounded upward).
+
+ 
+
+(v)           Notice of Conversion Rate Adjustments. Upon the effectiveness of
+any adjustment to the Conversion Rate pursuant to Section 10(f)(i), the Company
+will promptly send notice to the Holders containing (1) a brief description of
+the transaction or other event on account of which such adjustment was made; (2)
+the Conversion Rate in effect immediately after such adjustment; and (3) the
+effective time of such adjustment.
+
+ 
+
+
+
+ - 36 -
+
+ 
+
+ 
+
+(g)          Voluntary Conversion Rate Increases.
+
+ 
+
+(i)            Generally. To the extent permitted by law and applicable stock
+exchange rules, the Company, from time to time, may (but is not required to)
+increase the Conversion Rate by any amount if (1) the Board of Directors
+determines that such increase is in the Company’s best interest or that such
+increase is advisable to avoid or diminish any income tax imposed on holders of
+Common Stock or rights to purchase Common Stock as a result of any dividend or
+distribution of shares (or rights to acquire shares) of Common Stock or any
+similar event; (2) such increase is in effect for a period of at least twenty
+(20) Business Days; and (3) such increase is irrevocable during such period.
+
+ 
+
+(ii)           Notice of Voluntary Increase. If the Board of Directors
+determines to increase the Conversion Rate pursuant to Section 10(g)(i), then,
+no later than the first Business Day of the related twenty (20) Business Day
+period referred to in Section 10(g)(i), the Company will send notice to each
+Holder of such increase to the Conversion Rate, the amount thereof and the
+period during which such increase will be in effect.
+
+ 
+
+(iii)          Limitation on Voluntary Conversion Rate Increases.
+Notwithstanding anything in this Section 10(g) to the contrary, unless and until
+the Requisite Stockholder Approval is obtained, the Company may not increase the
+Conversion Rate pursuant to Section 10(g)(i) to the extent such increase would
+cause the Conversion Price to be less than $13.94 per share of Common Stock
+(subject to proportionate adjustment for stock dividends, stock splits or stock
+combinations with respect to the Common Stock).
+
+ 
+
+(h)           Restriction on Conversions and Certain Degressive Issuances.
+
+ 
+
+(i)            Limitation on Conversion Right. Notwithstanding anything to the
+contrary in this Certificate of Designations, unless and until the Requisite
+Stockholder Approval is obtained, no shares of Common Stock will be issued or
+delivered upon conversion of any Convertible Preferred Stock of any Holder, and
+no Convertible Preferred Stock of any Holder will be convertible, in each case
+to the extent, and only to the extent, that such issuance, delivery, conversion
+or convertibility would result in such Holder or a “person” or “group” (within
+the meaning of Section 13(d)(3) of the Exchange Act) beneficially owning in
+excess of nineteen and ninety-nine-one-hundredths percent (19.99%) of the
+then-outstanding Stockholder Voting Power (the restrictions set forth in this
+sentence, the “Ownership Limitation”). For these purposes, beneficial ownership
+and calculations of percentage ownership will be determined in accordance with
+Rule 13d-3 under the Exchange Act.
+
+ 
+
+
+
+ - 37 -
+
+ 
+
+ 
+
+Any purported delivery of shares of Common Stock upon conversion of the
+Convertible Preferred Stock will be void and have no effect to the extent, but
+only to the extent, that such delivery would result in any Holder becoming the
+beneficial owner of shares of Common Stock outstanding at such time in excess of
+the Ownership Limitation. For the avoidance of doubt, a Holder may effect an
+Optional Conversion, and the Company may, upon exercise of its Mandatory
+Conversion Right, force conversion of, a portion of such Holder’s Convertible
+Preferred Stock up to the Ownership Limitation, in each case subject to the
+other requirements of this Certificate of Designations applicable to such
+Optional Conversion or Mandatory Conversion, as applicable.
+
+ 
+
+If any Conversion Consideration otherwise due upon the conversion of any
+Convertible Preferred Stock is not delivered as a result of the Ownership
+Limitation, then the Company’s obligation to deliver such Conversion
+Consideration will not be extinguished, and the Company will deliver such
+Conversion Consideration as soon as reasonably practicable after the Holder of
+such Convertible Preferred Stock provides written evidence satisfactory to the
+Company that such delivery will not contravene the Ownership Limitation. A
+Holder will provide such evidence as soon as reasonably practicable after its
+beneficial ownership is such that additional shares of Common Stock issuable
+upon conversion of Convertible Preferred Stock may be delivered without
+contravening the Ownership Limitation.
+
+ 
+
+(ii)           Limitation of Adjustments for, and Prohibition of, Certain
+Degressive Issuances. Notwithstanding anything to the contrary in this
+Certificate of Designations, unless and until the Requisite Stockholder Approval
+is obtained, no adjustment will be made to the Conversion Rate pursuant to
+Section 10(f)(i)(2) to the extent, but only to the extent, such adjustment would
+cause the Conversion Price to be less than $13.94 per share of Common Stock
+(subject to proportionate adjustment for stock dividends, stock splits or stock
+combinations with respect to the Common Stock). Unless and until the Requisite
+Stockholder Approval is obtained, the Company will not, without the prior
+written consent of Holders of a majority of the Convertible Preferred Stock then
+outstanding, effect any Degressive Issuance if the adjustment on account of such
+Degressive Issuance pursuant to Section 10(f)(i)(2) would be limited by the
+preceding sentence. If the Requisite Stockholder Approval is obtained at any
+time after any adjustment to the Conversion Rate is limited pursuant to the
+first sentence of this Section 10(h)(ii), then, effective as of the time such
+Requisite Stockholder Approval is obtained, the Conversion Rate will be adjusted
+to the Conversion Rate that would then be in effect assuming that the first
+sentence of this Section 10(h)(ii) had not applied to any prior adjustment to
+the Conversion Rate.
+
+ 
+
+(iii)          Covenant to Seek the Requisite Stockholder Approval; Adjustment
+to Regular Dividend Rate. The Company will use its reasonable best efforts to
+obtain the Requisite Stockholder Approval, including by seeking such approval,
+if not previously obtained, at each future regular annual meeting of its
+stockholders and endorsing its approval in the related proxy materials. The
+Company will promptly notify the Holders if the Requisite Stockholder Approval
+is obtained. If the Requisite Stockholder Approval is not obtained on or before
+the Requisite Stockholder Approval Deadline Date, then the Regular Dividend Rate
+will be increased by one percent (1%), with such increase applying from, and
+including, the Requisite Stockholder Approval Deadline Date and continuing to
+apply to, but excluding, the date when the Requisite Stockholder Approval is
+first obtained, if at all.
+
+ 
+
+
+
+ - 38 -
+
+ 
+
+ 
+
+(i)            Effect of Common Stock Change Event.
+
+ 
+
+(i)            Generally. If there occurs any:
+
+ 
+
+(1)               recapitalization, reclassification or change of the Common
+Stock, other than (x) changes solely resulting from a subdivision or combination
+of the Common Stock, (y) a change only in par value or from par value to no par
+value or no par value to par value or (z) stock splits and stock combinations
+that do not involve the issuance of any other series or class of securities;
+
+ 
+
+(2)               consolidation, merger, combination or binding or statutory
+share exchange involving the Company;
+
+ 
+
+(3)               sale, lease or other transfer of all or substantially all of
+the assets of the Company and its Subsidiaries, taken as a whole, to any Person;
+or
+
+ 
+
+(4)               other similar event,
+
+ 
+
+and, as a result of which, the Common Stock is converted into, or is exchanged
+for, or represents solely the right to receive, other securities, cash or other
+property, or any combination of the foregoing (such an event, a “Common Stock
+Change Event,” and such other securities, cash or property, the “Reference
+Property,” and the amount and kind of Reference Property that a holder of one
+(1) share of Common Stock would be entitled to receive on account of such Common
+Stock Change Event (without giving effect to any arrangement not to issue or
+deliver a fractional portion of any security or other property), a “Reference
+Property Unit”), then, notwithstanding anything to the contrary in this
+Certificate of Designations,
+
+ 
+
+(A)       from and after the effective time of such Common Stock Change Event,
+(I) the consideration due upon conversion of any Convertible Preferred Stock
+will be determined in the same manner as if each reference to any number of
+shares of Common Stock in this Section 10 or in Section 11, or in any related
+definitions, were instead a reference to the same number of Reference Property
+Units; (II) for purposes of Section 10(c), each reference to any number of
+shares of Common Stock in such Section (or in any related definitions) will
+instead be deemed to be a reference to the same number of Reference Property
+Units; and (III) for purposes of the definition of “Change of Control,” the
+terms “Common Stock” and “common equity” will be deemed to mean the common
+equity (including depositary receipts representing common equity), if any,
+forming part of such Reference Property; and
+
+ 
+
+
+
+ - 39 -
+
+ 
+
+ 
+
+(B)       for these purposes, the Last Reported Sale Price of any Reference
+Property Unit or portion thereof that does not consist of a class of securities
+will be the fair value of such Reference Property Unit or portion thereof, as
+applicable, determined in good faith by the Company (or, in the case of cash
+denominated in U.S. dollars, the face amount thereof).
+
+ 
+
+If the Reference Property consists of more than a single type of consideration
+to be determined based in part upon any form of stockholder election, then the
+composition of the Reference Property Unit will be deemed to be the weighted
+average of the types and amounts of consideration actually received, per share
+of Common Stock, by the holders of Common Stock. The Company will notify the
+Holders of such weighted average as soon as practicable after such determination
+is made.
+
+ 
+
+(ii)           Compliance Covenant. The Company will not become a party to any
+Common Stock Change Event unless its terms are consistent with this Section
+10(i).
+
+ 
+
+(iii)          Execution of Supplemental Instruments. On or before the date the
+Common Stock Change Event becomes effective, the Company and, if applicable, the
+resulting, surviving or transferee Person (if not the Company) of such Common
+Stock Change Event (the “Successor Person”) will execute and deliver such
+supplemental instruments, if any, as the Company reasonably determines are
+necessary or desirable to (1) provide for subsequent adjustments to the
+Conversion Rate pursuant to Section 10(f)(i) in a manner consistent with this
+Section 10(i); and (2) give effect to such other provisions, if any, as the
+Company reasonably determines are appropriate to preserve the economic interests
+of the Holders and to give effect to Section 10(i)(i). If the Reference Property
+includes shares of stock or other securities or assets of a Person other than
+the Successor Person, then such other Person will also execute such supplemental
+instrument(s) and such supplemental instrument(s) will contain such additional
+provisions, if any, that the Company reasonably determines are appropriate to
+preserve the economic interests of Holders.
+
+ 
+
+(iv)          Notice of Common Stock Change Event. The Company will provide
+notice of each Common Stock Change Event to Holders no later than the effective
+date of the Common Stock Change Event.
+
+ 
+
+Section 11.            Certain Provisions Relating to the Issuance of Common
+Stock.
+
+ 
+
+(a)           Equitable Adjustments to Prices. Whenever this Certificate of
+Designations requires the Company to calculate the average of the Last Reported
+Sale Prices, or any function thereof, over a period of multiple days (including
+to calculate an adjustment to the Conversion Rate), the Company will make
+appropriate adjustments, if any, to those calculations to account for any
+adjustment to the Conversion Rate pursuant to Section 10(f)(i) that becomes
+effective, or any event requiring such an adjustment to the Conversion Rate
+where the Ex-Dividend Date, effective date or Expiration Date, as applicable, of
+such event occurs, at any time during such period.
+
+ 
+
+(b)           Reservation of Shares of Common Stock. The Company will reserve,
+out of its authorized, unreserved and not outstanding shares of Common Stock,
+for delivery upon conversion of the Convertible Preferred Stock, a number of
+shares of Common Stock that would be sufficient to settle the conversion of all
+shares of Convertible Preferred Stock then outstanding, if any. To the extent
+the Company delivers shares of Common Stock held in the Company’s treasury in
+settlement of any obligation under this Certificate of Designations to deliver
+shares of Common Stock, each reference in this Certificate of Designations to
+the issuance of shares of Common Stock in connection therewith will be deemed to
+include such delivery.
+
+ 
+
+ - 40 -
+
+ 
+
+
+
+ 
+
+(c)           Status of Shares of Common Stock. Each share of Common Stock
+delivered upon conversion of on the Convertible Preferred Stock of any Holder
+will be a newly issued or treasury share and will be duly and validly issued,
+fully paid, non-assessable, free from preemptive rights and free of any lien or
+adverse claim (except to the extent of any lien or adverse claim created by the
+action or inaction of such Holder or the Person to whom such share of Common
+Stock will be delivered). If the Common Stock is then listed on any securities
+exchange, or quoted on any inter-dealer quotation system, then the Company will
+cause each such share of Common Stock, when so delivered, to be admitted for
+listing on such exchange or quotation on such system.
+
+ 
+
+(d)          Taxes Upon Issuance of Common Stock. The Company will pay any
+documentary, stamp or similar issue or transfer tax or duty due on the issue of
+any shares of Common Stock upon conversion of the Convertible Preferred Stock of
+any Holder, except any tax or duty that is due because such Holder requests
+those shares to be registered in a name other than such Holder’s name.
+
+ 
+
+Section 12.            No Preemptive Rights. Without limiting the rights of any
+Holder set forth in this Certificate of Designations (including in connection
+with the issuance of Common Stock or Reference Property upon conversion of the
+Convertible Preferred Stock), the Convertible Preferred Stock will not have any
+preemptive rights to subscribe for or purchase any of the Company’s securities.
+
+ 
+
+Section 13.           Tax Treatment. Notwithstanding anything to the contrary in
+this Certificate of Designations, for U.S. federal and other applicable state
+and local income tax purposes, it is intended that (a) the Convertible Preferred
+Stock will not be treated as “preferred stock” within the meaning of Section
+305(b)(4) of Code and Treasury Regulations Section 1.305-5(a); and (b) no Holder
+will be required to include in income any amounts in respect of the Convertible
+Preferred Stock by operation of Section 305(b) or (c) of the Code. The Company
+will, and will cause its Subsidiaries and agents to, report consistently with,
+and take no positions or actions inconsistent with, the foregoing treatment
+(including by way of withholding) unless otherwise required by a determination
+within the meaning of Section 1313(a) of the Code. The Company will not, and
+will not cause or permit any of its Subsidiaries to, issue any securities or
+otherwise take any action that could reasonably be expected to affect the
+treatment described in clause (b).
+
+ 
+
+ - 41 -
+
+ 
+
+ 
+
+ 
+
+ 
+
+Section 14.            Calculations.
+
+ 
+
+(a)               Responsibility; Schedule of Calculations. Except as otherwise
+provided in this Certificate of Designations, the Company will be responsible
+for making all calculations called for under this Certificate of Designations or
+the Convertible Preferred Stock, including determinations of the Conversion
+Rate, the Last Reported Sale Prices and accumulated Regular Dividends on the
+Convertible Preferred Stock. The Company will make all calculations in good
+faith, and, absent manifest error, its calculations will be final and binding on
+all Holders. The Company will provide a schedule of such calculations to any
+Holder upon written request.
+
+ 
+
+(b)               Calculations Aggregated for Each Holder. The composition of
+the Conversion Consideration due upon conversion of the Convertible Preferred
+Stock of any Holder will be computed based on the total number of shares of
+Convertible Preferred Stock of such Holder being converted with the same
+Conversion Date. For these purposes, any cash amounts due to such Holder in
+respect thereof will be rounded to the nearest cent.
+
+ 
+
+Section 15.            Notices. The Company will send all notices or
+communications to Holders pursuant to this Certificate of Designations in
+writing and delivered personally, by facsimile or e-mail (with confirmation of
+receipt from the recipient, in the case of e-mail), or sent by a nationally
+recognized overnight courier service to the Holders’ respective addresses shown
+on the Register. Notwithstanding anything in the Certificate of Designations to
+the contrary, any defect in the delivery of any such notice or communication
+will not impair or affect the validity of such notice or communication and the
+failure to give any such notice or communication to all the Holders will not
+impair or affect the validity of such notice or communication to whom such
+notice is sent.
+
+ 
+
+Section 16.            Legally Available Funds. Without limiting the rights of
+any Holder (including pursuant to Section 6), if the Company does not have
+sufficient funds legally available to fully pay any cash amount otherwise due on
+the Convertible Preferred Stock, then the Company will pay the deficiency
+promptly after funds thereafter become legally available therefor.
+
+ 
+
+Section 17.            No Other Rights. The Convertible Preferred Stock will
+have no rights, preferences or voting powers except as provided in this
+Certificate of Designations or the Certificate of Incorporation or as required
+by applicable law.
+
+ 
+
+[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
+
+ 
+
+
+
+ - 42 -
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the Company has caused this Certificate of Designations to
+be duly executed as of the date first written above.
+
+ 
+
+ EVO Payments, Inc.        By:      Name:James G. Kelly   Title:Chief Executive
+Officer
+
+ 
+
+[Signature Page to Certificate of Designations]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+EXHIBIT A
+
+ 
+
+FORM OF CONVERTIBLE PREFERRED STOCK
+
+ 
+
+[Insert Restricted Stock Legend, if applicable]
+
+ 
+
+EVO Payments, Inc.
+
+ 
+
+Series A Convertible Preferred Stock
+
+ 
+
+Certificate No. [        ]
+
+ 
+
+EVO Payments, Inc., a Delaware corporation (the “Company”), certifies that [___]
+is the registered owner of [___] shares of the Company’s Series A Convertible
+Preferred Stock (the “Convertible Preferred Stock”) represented by this
+certificate (this “Certificate”). The special rights, preferences and voting
+powers of the Convertible Preferred Stock are set forth in the Certificate of
+Designations of the Company establishing the Convertible Preferred Stock (the
+“Certificate of Designations”). Capitalized terms used in this Certificate
+without definition have the respective meanings ascribed to them in the
+Certificate of Designations.
+
+ 
+
+Additional terms of this Certificate are set forth on the other side of this
+Certificate.
+
+ 
+
+[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
+
+ 
+
+
+
+ A-1
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, EVO Payments, Inc. has caused this instrument to be duly
+executed as of the date set forth below.
+
+ 
+
+      EVO Payments, Inc.         Date:     By:           Name:
+                                             Title:  
+
+ 
+
+Date:     By:           Name:                                             
+Title:  
+
+ 
+
+
+
+ A-2
+
+ 
+
+ 
+
+TRANSFER AGENT’S COUNTERSIGNATURE
+
+ 
+
+[legal name of Transfer Agent], as Transfer Agent, certifies that this
+Certificate represents shares of Convertible Preferred Stock referred to in the
+within-mentioned Certificate of Designations.
+
+ 
+
+Date:     By:           Authorized Signatory
+
+
+
+ 
+
+
+
+ A-3
+
+ 
+
+ 
+
+EVO PAYMENTS, INC.
+
+ 
+
+Series A Convertible Preferred Stock
+
+ 
+
+This Certificate represents duly authorized, issued and outstanding shares of
+Convertible Preferred Stock. Certain terms of the Convertible Preferred Stock
+are summarized below. Notwithstanding anything to the contrary in this
+Certificate, to the extent that any provision of this Certificate conflicts with
+the provisions of the Certificate of Designations or the Certificate of
+Incorporation, the provisions of the of the Certificate of Designations or the
+Certificate of Incorporation, as applicable, will control.
+
+ 
+
+1.                  Method of Payment. Cash amounts due on the Convertible
+Preferred Stock represented by this Certificate will be paid in the manner set
+forth in Section 3(d) of the Certificate of Designations.
+
+ 
+
+2.                  Persons Deemed Owners. The Person in whose name this
+Certificate is registered will be treated as the owner of the Convertible
+Preferred Stock represented by this Certificate for all purposes, subject to
+Section 3(k) of the Certificate of Designations.
+
+ 
+
+3.                  Denominations; Transfers and Exchanges. All shares of
+Convertible Preferred Stock will be in registered form an in denominations equal
+to any whole number of shares. Subject to the terms of the Certificate of
+Designations, the Holder of the Convertible Preferred Stock represented by this
+Certificate may transfer or exchange this Convertible Preferred Stock by
+presenting this Certificate to the Company and delivering any required
+documentation or other materials.
+
+ 
+
+4.                  Dividends. Dividends on the Convertible Preferred Stock will
+accumulate and will be paid in the manner, and subject to the terms, set forth
+in Section 5 of the Certificate of Designations.
+
+ 
+
+5.                  Liquidation Preference. The Liquidation Preference per share
+of Convertible Preferred Stock is initially equal to the Initial Liquidation
+Preference per share of Convertible Preferred Stock; provided, however, that the
+Liquidation Preference is subject to adjustment pursuant to Section 5(a)(ii)(1)
+of the Certificate of Designations. The rights of Holders upon the Company’s
+liquidation, dissolution or winding up are set forth in Section 6 of the
+Certificate of Designations.
+
+ 
+
+6.                  Right of the Company to Redeem the Convertible Preferred
+Stock. The Company will have the right to redeem the Convertible Preferred Stock
+in the manner, and subject to the terms, set forth in Section 7 of the
+Certificate of Designations.
+
+ 
+
+7.                  Voting Rights. Holders of the Convertible Preferred Stock
+have the voting rights set forth in Section 9 of the Certificate of
+Designations.
+
+ 
+
+8.                  Conversion. The Convertible Preferred Stock will be
+convertible into Conversion Consideration in the manner, and subject to the
+terms, set forth in Section 10 of the Certificate of Designations.
+
+ 
+
+
+
+ A-4
+
+ 
+
+ 
+
+9.                  Countersignature. The Convertible Preferred Stock
+represented by this Certificate will not be valid until this Certificate is
+countersigned by the Transfer Agent.
+
+ 
+
+10.                Abbreviations. Customary abbreviations may be used in the
+name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT
+(tenants by the entireties), JT TEN (joint tenants with right of survivorship
+and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gift to
+Minors Act).
+
+ 
+
+* * *
+
+ 
+
+To request a copy of the Certificate of Designations, which the Company will
+provide to any Holder at no charge, please send a written request to the
+following address:
+
+ 
+
+EVO Payments, Inc.
+
+Ten Glenlake Parkway
+
+South Tower, Suite 950
+
+Atlanta, Georgia 30328
+
+Attention: Chief Financial Officer
+
+ 
+
+
+
+ A-5
+
+ 
+
+ 
+
+CONVERSION NOTICE
+
+ 
+
+EVO PAYMENTS, INC.
+
+ 
+
+Series A Convertible Preferred Stock
+
+ 
+
+Subject to the terms of the Certificate of Designations, by executing and
+delivering this Conversion Notice, the undersigned Holder of the Convertible
+Preferred Stock identified below directs the Company to convert (check one):
+
+ 
+
+¨all of the shares of Convertible Preferred Stock
+
+ 
+
+¨                      * shares of Convertible Preferred Stock
+
+ 
+
+identified by Certificate No.                      .
+
+ 
+
+Date:             (Legal Name of Holder)
+
+
+
+ 
+
+  By:       Name:       Title:  
+
+ 
+
+  Signature Guaranteed:       Participant in a Recognized Signature   Guarantee
+Medallion Program
+
+ 
+
+  By:                                  Authorized Signatory
+
+ 
+
+ 
+
+
+
+* Must be a whole number.
+
+ 
+
+
+
+
+
+
+
+ A-6
+
+ 
+
+ 
+
+CHANGE OF CONTROL REPURCHASE NOTICE
+
+ 
+
+EVO PAYMENTS, INC.
+
+ 
+
+Series A Convertible Preferred Stock
+
+ 
+
+Subject to the terms of the Certificate of Designations, by executing and
+delivering this Change of Control Repurchase Notice, the undersigned Holder of
+the Convertible Preferred Stock identified below is exercising its Change of
+Control Repurchase Right with respect to (check one):
+
+ 
+
+¨all of the shares of Convertible Preferred Stock
+
+ 
+
+¨                       1 shares of Convertible Preferred Stock
+
+ 
+
+identified by Certificate No.                      .
+
+ 
+
+The undersigned acknowledges that Certificate identified above, duly endorsed
+for transfer, must be delivered to the Company before the Change of Control
+Repurchase Price will be paid.
+
+ 
+
+
+
+Date:             (Legal Name of Holder)
+
+
+
+ 
+
+  By:       Name:       Title:  
+
+ 
+
+  Signature Guaranteed:       Participant in a Recognized Signature   Guarantee
+Medallion Program
+
+ 
+
+  By:                                  Authorized Signatory
+
+ 
+
+ 
+
+
+
+1 Must be a whole number.
+
+ 
+
+ A-7
+
+ 
+
+
+
+ 
+
+EXHIBIT B
+
+ 
+
+FORM OF RESTRICTED STOCK LEGEND
+
+ 
+
+THE OFFER AND SALE OF THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
+CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
+1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY AND SUCH SHARES MAY
+NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO A
+REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT; OR (B)
+PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
+REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
+
+ 
+
+
+
+ B-1
+
+ 
+
+ 
+
+ 
+
+EXHIBIT B
+
+ 
+
+Form of Support Agreement
+
+
+
+ 
+
+acknowledgment and support agreement
+
+ 
+
+[_______________], 2020
+
+ 
+
+Madison Dearborn Partners
+
+70 W. Madison St. #4600
+
+Chicago, IL 60602
+
+ 
+
+Re:       Acknowledgment and Support Agreement
+
+ 
+
+Reference is made to that certain Investment Agreement, dated as of March 29,
+2020 (the “Investment Agreement”), by and among Madison Dearborn Capital
+Partners VI-A, L.P., a Delaware limited partnership, Madison Dearborn Capital
+Partners VI Executive-A, L.P., a Delaware limited partnership and Madison
+Dearborn Capital Partners VI-C, L.P., a Delaware limited partnership (each, a
+“Purchaser” and collectively, “Purchasers”), and EVO Payments, Inc., a Delaware
+corporation (the “Company”), pursuant to which the Company will issue and sell,
+and the Purchasers will purchase, 152,250 shares (the “Shares”) of the Company’s
+Series A Convertible Preferred Stock, par value $0.0001 per share. Capitalized
+terms used herein and not otherwise defined herein shall have the meanings
+ascribed to them in the Investment Agreement.
+
+ 
+
+As of the date hereof, the undersigned (“Stockholder”) is the record or
+beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange
+Act of 1934, as amended, which meaning will apply for all purposes of this
+Acknowledgment and Support Agreement (this “Support Agreement”) whenever the
+term “beneficial owner” or “beneficially own” is used) of the number of shares
+of common stock, par value $0.0001 per share of the Company (the “Company Common
+Stock”), set forth below Stockholder’s name on the signature page hereto (all
+shares of Company Common Stock for which Stockholder is or becomes the record or
+beneficial owner prior to the termination of this Support Agreement being
+referred to herein as the “Covered Shares” ).
+
+ 
+
+Stockholder acknowledges and agrees that the execution of this Support Agreement
+and its delivery to each Purchaser by Stockholder is a material inducement to
+each Purchaser to enter into the Investment Agreement and purchase the Shares.
+Stockholder hereby acknowledges and agrees to the following:
+
+ 
+
+1.Stockholder Vote.
+
+ 
+
+(a)At any meeting of the stockholders of the Company, however called, or at any
+adjournment thereof, or in any other circumstance in which the vote, consent or
+other approval of the stockholders of the Company is sought (including any
+written consent of such stockholders) (each, a “Company Stockholders Meeting or
+Consent”), Stockholder shall, and shall cause any other holder of record of the
+Covered Shares to, (i) appear at each such meeting (if applicable) or otherwise
+cause all Covered Shares to be counted as present thereat for purposes of
+calculating a quorum and (ii) vote (or cause to be voted), or execute and
+deliver a written consent (or cause a written consent to be executed and
+delivered) covering, all Covered Shares:
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+(i)in favor of the removal of the Ownership Limitation (as such term is defined
+in the Certificate of Designations) (the “Stockholder Approval”),
+
+ 
+
+(ii)in favor of any other matter considered at any Company Stockholders Meeting
+or Consent which the Board of Directors of the Company has determined is
+necessary or appropriate in connection with the Stockholder Approval,
+
+ 
+
+(iii)in favor of any adjournment or postponement recommended by the Company in
+order to obtain the Stockholder Approval, and
+
+ 
+
+(iv)against any shareholder proposal that does or would oppose, impede,
+frustrate, prevent or nullify the Stockholder Approval, any provision of this
+Support Agreement or any matter that is proposed in furtherance thereof.
+
+ 
+
+2.Irrevocable Proxy.
+
+ 
+
+(a)SOLELY IN THE EVENT OF A FAILURE BY STOCKHOLDER TO ACT IN ACCORDANCE WITH
+SUCH STOCKHOLDER’S OBLIGATIONS AS TO VOTING PURSUANT TO SECTION 1.1(A), UNTIL
+SUCH TIME AS THE STOCKHOLDER APPROVAL HAS BEEN OBTAINED (THE “TERMINATION
+TIME”), STOCKHOLDER HEREBY IRREVOCABLY (UNTIL THE TERMINATION TIME) GRANTS TO
+AND APPOINTS PURCHASERS SUCH STOCKHOLDER’S PROXY AND ATTORNEY-IN-FACT (WITH FULL
+POWER OF SUBSTITUTION), FOR AND IN THE NAME, PLACE AND STEAD OF STOCKHOLDER, TO
+REPRESENT, VOTE AND OTHERWISE ACT (BY VOTING AT ANY MEETING OF COMPANY
+STOCKHOLDERS, BY WRITTEN CONSENT IN LIEU THEREOF OR OTHERWISE) WITH RESPECT TO
+THE COVERED SHARES REGARDING THE MATTERS REFERRED TO IN SECTION 1.1(A) UNTIL THE
+TERMINATION TIME, TO THE SAME EXTENT AND WITH THE SAME EFFECT AS STOCKHOLDER
+MIGHT OR COULD DO UNDER APPLICABLE LAW, RULES AND REGULATIONS; provided however,
+that Stockholder’s grant of the proxy contemplated by Section 1.1(A) shall be
+effective if, and only if, Stockholder has not delivered to PurchaserS at least
+ten days prior to the meeting at which any of the matters described in Section
+1.1(A) is to be considered a duly executed proxy card OR CONSENT previously
+approved by PurchaserS directing that the Covered Shares of Stockholder be voted
+in accordance with Section 1.1(A). THE PROXY GRANTED PURSUANT TO THIS SECTION
+2(A) IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE TERMINATION
+TIME. UNTIL THE TERMINATION TIME, STOCKHOLDER WILL TAKE SUCH FURTHER ACTION AND
+WILL EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT
+OF THIS PROXY. STOCKHOLDER HEREBY REVOKES ANY AND ALL PREVIOUS PROXIES OR POWERS
+OF ATTORNEY GRANTED WITH RESPECT TO ANY OF THE COVERED SHARES THAT MAY HAVE
+HERETOFORE BEEN APPOINTED OR GRANTED WITH RESPECT TO THE MATTERS REFERRED TO IN
+THIS SECTION 2(A), AND PRIOR TO THE TERMINATION TIME NO SUBSEQUENT PROXY
+(WHETHER REVOCABLE OR IRREVOCABLE) OR POWER OF ATTORNEY SHALL BE GIVEN BY
+STOCKHOLDER. NOTWITHSTANDING THE FOREGOING, THIS PROXY SHALL TERMINATE UPON
+TERMINATION OF THIS SUPPORT AGREEMENT IN ACCORDANCE WITH ITS TERMS.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+3.No Inconsistent Arrangements. Until the Termination Time, Stockholder shall
+not, directly or indirectly, (a) transfer, sell, assign, gift, hedge, pledge,
+tender or otherwise dispose of, create or permit to exist any Lien on, or grant
+any proxy, power of attorney or other authorization in respect of (collectively,
+“Transfer”), or enter into any contract or other arrangement with respect to any
+Transfer of, the Covered Shares or any interest therein, (b) deposit or permit
+the deposit of the Covered Shares into a voting trust or enter into a tender,
+support, voting or similar agreement or arrangement with respect to the Covered
+Shares or (c) otherwise take any action with respect to any of the Covered
+Shares that would restrict, limit or interfere with the performance of any of
+Stockholder’s obligations under this Support Agreement or otherwise make any
+representation or warranty of Stockholder contained herein untrue or incorrect.
+Notwithstanding the foregoing, Stockholder may make Transfers of Covered Shares
+(A) by will or for other bona fide estate planning purposes, or (B) to any of
+its Affiliates, in each case, only so long as the Covered Shares shall continue
+to be bound by this Support Agreement and provided that each transferee thereof
+agrees in a writing reasonably acceptable to each Purchaser to be bound by the
+terms and conditions of this Support Agreement.
+
+ 
+
+4.Representations and Warranties of Stockholder.
+
+ 
+
+(a)Stockholder hereby represents and warrants to Purchasers as follows:
+
+ 
+
+(i)If Stockholder is an entity or trust, such Stockholder is duly constituted,
+validly existing and in good standing under the laws of its jurisdiction of
+formation, if applicable, with full power, capacity and authority to own the
+Covered Shares.
+
+ 
+
+(ii)Stockholder owns beneficially and of record the Covered Shares, free and
+clear of all Liens or other restrictions on the right to vote the Covered
+Shares, except as provided hereunder.
+
+ 
+
+(iii)Stockholder has full voting power with respect to the Covered Shares, full
+power to issue instructions with respect to the matters set forth herein and
+full power to agree to all of the matters set forth in this Support Agreement,
+in each case, with respect to all of the Covered Shares. None of the Covered
+Shares are subject to any proxy, voting trust or other agreement or arrangement
+with respect to the voting of the Covered Shares with respect to the matters
+contemplated herein.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+(iv)The execution, delivery and performance by Stockholder of this Support
+Agreement do not and will not (a) contravene, conflict with or result in any
+violation or breach of any Organizational Document of Stockholder, if
+applicable, (b) result in the creation of any Lien on the Covered Shares, or (c)
+violate, conflict with, result in any material breach of, or constitute a
+default (or event which with the giving of notice or lapse of time, or both,
+would become a default) under, or result in or give to others any material
+rights of termination, amendment, acceleration or cancellation of, or result in
+the creation of any Lien on any of the Covered Shares pursuant to, any contract
+to which Stockholder is a party or by which any of the Covered Shares is bound.
+
+ 
+
+5.Miscellaneous.
+
+ 
+
+(a)This Support Agreement shall be governed by, and construed in accordance
+with, the Laws of the state of Delaware, without giving effect to any choice of
+law or conflict of law rules or provisions (whether of the state of Delaware or
+any other jurisdiction) that would cause the application of the laws of any
+jurisdiction other than the state of Delaware. Any dispute relating hereto shall
+be heard first in the Delaware Court of Chancery, and, if applicable, in any
+state or federal court located in of Delaware in which appeal from the Court of
+Chancery may validly be taken under the laws of the State of Delaware (each a
+“Chosen Court” and collectively, the “Chosen Courts”), and the parties agree to
+the exclusive jurisdiction and venue of the Chosen Courts. Such Persons further
+agree that any proceeding seeking to enforce any provision of, or based on any
+matter arising out of or in connection with, this Support Agreement or the
+transactions contemplated hereby or by any matters related to the foregoing (the
+“Applicable Matters”) shall be brought exclusively in a Chosen Court, and that
+any proceeding arising out of this Support Agreement or any other Applicable
+Matter shall be deemed to have arisen from a transaction of business in the
+state of Delaware, and each of the foregoing Persons hereby irrevocably consents
+to the jurisdiction of such Chosen Courts in any such proceeding and irrevocably
+and unconditionally waives, to the fullest extent permitted by law, any
+objection that such Person may now or hereafter have to the laying of the venue
+of any such suit, action or proceeding in any such Chosen Court or that any such
+proceeding brought in any such Chosen Court has been brought in an inconvenient
+forum. Such Persons further covenant not to bring a proceeding with respect to
+the Applicable Matters (or that could affect any Applicable Matter) other than
+in such Chosen Court and not to challenge or enforce in another jurisdiction a
+judgment of such Chosen Court. Process in any such proceeding may be served on
+any Person with respect to such Applicable Matters anywhere in the world,
+whether within or without the jurisdiction of any such Chosen Court. AS A
+SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER
+INTO THIS SUPPORT AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH
+COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
+LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS SUPPORT
+AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+(b)This Support Agreement may be amended only by an instrument in writing signed
+by each Purchaser and Stockholder.
+
+ 
+
+(c)Stockholder may not assign this Support Agreement by operation of law or
+otherwise without the prior written consent of each Purchaser. Subject to the
+foregoing, this Support Agreement will be binding upon, inure to the benefit of,
+and be enforceable by the parties hereto and their respective successors and
+permitted assigns.
+
+ 
+
+(d)This Support Agreement, and any amendments hereto, to the extent signed and
+delivered by means of an electronic transmission, including by a facsimile
+machine or via email, shall be treated in all manner and respects as an original
+agreement or instrument and shall be considered to have the same binding legal
+effect as if it were the original signed version thereof delivered in person.
+Neither party hereto or to any such agreement or instrument shall raise the use
+of electronic transmission by a facsimile machine or via email to deliver a
+signature or the fact that any signature or agreement or instrument was
+transmitted or communicated through such electronic transmission as a defense to
+the formation of a contract and each such party forever waives any such defense.
+This Support Agreement may be executed in separate counterparts, each of which
+will be an original and all of which together shall constitute one and the same
+agreement binding on each party hereto.
+
+ 
+
+(e)Neither party hereto shall be deemed to have waived any claim arising out of
+this Support Agreement, or any power, right, privilege or remedy under this
+Support Agreement, unless the waiver of such claim, power, right, privilege or
+remedy is expressly set forth in a written instrument duly executed and
+delivered on behalf of such party; and any such waiver shall not be applicable
+or have any effect except in the specific instance in which it is given. No
+failure on the part of either party to exercise any power, right, privilege or
+remedy under this Support Agreement, and no delay on the part of either party in
+exercising any power, right, privilege or remedy under this Support Agreement,
+shall operate as a waiver of such power, right, privilege or remedy; and no
+single or partial exercise of any such power, right, privilege or remedy shall
+preclude any other or further exercise thereof or of any other power, right,
+privilege or remedy.
+
+ 
+
+(f)Nothing in this Support Agreement, expressed or implied, shall amend, modify,
+alter or change any of the terms of, or any of the parties’ rights or
+obligations under, the Investment Agreement
+
+ 
+
+* * * * *
+
+
+
+ 
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties have executed this Acknowledgement and Support
+Agreement as of the date first written above.
+
+    
+
+  STOCKHOLDER:       By:                                                       
+  Name:         Number of Shares of Company Common Stock Beneficially Owned:
+
+   
+
+
+
+      Class A:                                                      
+                                                Class B:       Class C:    
+Class D:   
+
+ 
+
+Signature Page to Acknowledgment and Support Agreement 
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Acknowledged and agreed, as of the date first written above, by:       MADISON
+DEARBORN CAPITAL PARTNERS VI-A, L.P.       By: Madison Dearborn Partners VI-A&C,
+L.P.   Its: General Partner       By: Madison Dearborn Partners, LLC   Its:
+General Partner       By:       Name: Vahe A. Dombalagian     Its: Managing
+Director           MADISON DEARBORN CAPITAL PARTNERS VI- C, L.P.       By:
+Madison Dearborn Partners VI-A&C, L.P.   Its: General Partner       By: Madison
+Dearborn Partners, LLC   Its: General Partner       By:       Name: Vahe A.
+Dombalagian     Its: Managing Director           MADISON DEARBORN CAPITAL
+PARTNERS VI EXECUTIVE-A, L.P.       By: Madison Dearborn Partners VI-A&C, L.P.  
+Its: General Partner       By: Madison Dearborn Partners, LLC   Its: General
+Partner       By:       Name: Vahe A. Dombalagian     Its: Managing Director  
+
+ 
+
+
+
+Signature Page to Acknowledgment and Support Agreement
+
+ 
+
+
+
+ 
+
+ 
+
+
+
+ 
+
+EXHIBIT C
+
+ 
+
+Form of Amended and Restated Director Nomination Agreement
+
+ 
+
+
+
+ 
+
+ 
+
+
+
+ 
+
+AMENDED & RESTATED DIRECTOR NOMINATION AGREEMENT
+
+ 
+
+This Amended & Restated Director Nomination Agreement (this “Agreement”) is made
+on [ • ], 2020 (the “Effective Date”), by and among EVO Payments, Inc., a
+Delaware corporation (the “Company”), Madison Dearborn Partners, LLC, Madison
+Dearborn Partners VI-A&C, L.P., Madison Dearborn Capital Partners VI-C, L.P.,
+Madison Dearborn Partners VI-B, L.P., Madison Dearborn Capital Partners VI-B,
+L.P., Madison Dearborn Capital Partners VI Executive-B, L.P., MDCP VI-C
+Cardservices Splitter, L.P., MDCP Cardservices LLC MDCP VI-C Cardservices
+Blocker Corp. (collectively, the “Existing MDP Parties”), Madison Dearborn
+Capital Partners VI-A, L.P. and Madison Dearborn Capital Partners VI
+Executive-A, L.P. (collectively, “New MDP Parties” and together with the
+Existing MDP Parties, “MDP”).
+
+ 
+
+RECITALS
+
+ 
+
+WHEREAS, the Company and the Existing MDP Parties entered into that certain
+Director Nomination Agreement, dated as of May 22, 2018 and effective as of May
+25, 2018 (the “Prior Agreement”);
+
+ 
+
+WHEREAS, the Company and the Existing MDP Parties desire to amend and restate
+the Prior Agreement to, among other items, memorialize certain matters made in
+connection with the purchase of shares of the Company’s Series A Convertible
+Preferred Stock, par value $0.0001 per share, by the New MDP Parties and certain
+of the Existing MDP Parties and to permit MDP to designate up to two persons for
+nomination for election to the board of directors of the Company (the “Board”),
+subject to the terms and conditions set forth herein.
+
+ 
+
+NOW, THEREFORE, in consideration of the mutual covenants and agreements
+contained herein and other good and valuable consideration, the receipt and
+sufficiency of which are hereby acknowledged, the parties hereto agree to amend
+and restate the Prior Agreement as follows:
+
+ 
+
+Article I
+DEFINITIONS
+
+ 
+
+Section 1.01        Definitions. As used in this Agreement, the following terms
+shall have the following meanings:
+
+ 
+
+“Affiliate” means, with respect to a specified Person, any other Person that
+directly, or indirectly through one or more intermediaries, Controls, is
+Controlled by, or is under common Control with, the specified Person; provided
+that the Company and any Person Controlled by the Company shall not be
+considered to be an Affiliate of MDP for any purpose under this Agreement.
+
+ 
+
+“Agreement” has the meaning set forth in the Preamble.
+
+ 
+
+“Antitrust Clearance Date” has the meaning set forth in the Certificate of
+Designations.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+“Beneficial Owner” means, with respect to a security, a Person who directly or
+indirectly, through any contract, arrangement, understanding, relationship or
+otherwise has or shares (a) voting power, which includes the power to vote, or
+to direct the voting of, such security, or (b) investment power, which includes
+the power to dispose, or to direct the disposition of, such security. The term
+“Beneficially Own” shall have a correlative meaning.
+
+ 
+
+“Board” has the meaning set forth in the Recitals.
+
+ 
+
+“Bylaws” means the Amended and Restated Bylaws of the Company, as amended or
+restated from time to time.
+
+ 
+
+“Certificate of Incorporation” means the Amended and Restated Certificate of
+Incorporation of the Company, as amended or restated from time to time.
+
+ 
+
+“Certificate of Designations” means the Series A Convertible Preferred Stock
+Certificate of Designations of the Company, as amended or restated from time to
+time.
+
+ 
+
+“Company” has the meaning set forth in the Preamble.
+
+ 
+
+“Control” means the possession, direct or indirect, of the power to direct or
+cause the direction of the management and policies of a Person, whether through
+the ownership of voting securities, by contract or otherwise. The terms
+“Controlled by” and “under common Control with” shall have correlative meanings.
+
+ 
+
+“Effective Date” has the meaning set forth in the Preamble.
+
+ 
+
+“Exchange Act” means the Securities Exchange Act of 1934.
+
+ 
+
+“Existing MDP Parties” has the meaning set forth in the Preamble.
+
+ 
+
+“MDP” has the meaning set forth in the Preamble.
+
+ 
+
+“MDP Designated Directors” has the meaning set forth in Section 2.02(a).
+
+ 
+
+“New MDP Parties” has the meaning set forth in the Preamble.
+
+ 
+
+“Ownership Limitation” has the meaning set forth in the Certificate of
+Designations.
+
+ 
+
+“Person” means any individual, corporation, firm, partnership, joint venture,
+limited liability company, estate, trust, business association, organization,
+any court, administrative agency, regulatory body, commission or other
+governmental authority, board, bureau or instrumentality, domestic or foreign
+and any subdivision thereof or other entity, and also includes any managed
+investment account.
+
+ 
+
+“Proceeding” has the meaning set forth in Section 4.07.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+“Securities Exchange” means the national securities exchange on which the
+Company’s Class A common stock, par value $0.0001 per share, is then listed.
+
+ 
+
+“Selected Courts” has the meaning set forth in Section 4.07.
+
+ 
+
+“Termination Date” means the date of the expiration of the then-current term of
+the MDP Designated Director (or such person’s successor designee appointed under
+Section 2.02(e)) with the longest term remaining that expires after the date
+when the Voting Percentage of MDP and its Affiliates is less than 5% for the
+first time following the Effective Date.
+
+ 
+
+“Voting Percentage” means, with respect to any Person, the percentage voting
+power in the general election of directors of the Company represented by all
+shares of Voting Stock Beneficially Owned by such Person; provided, that at all
+times and for all purposes hereof, the Voting Percentage of MDP and its
+Affiliates shall be determined assuming that (a) the Antitrust Clearance Date
+has occurred and (b) the Ownership Limitation has been removed, and therefore
+(for purposes of this definition) MDP and such Affiliates shall be treated as
+having the right to vote any shares of Series A Convertible Preferred Stock held
+thereby.
+
+ 
+
+“Voting Stock” means the Class A common stock, Class B common stock, Class C
+common stock, Class D common stock and Series A Convertible Preferred Stock,
+each with par value $0.0001 per share, of the Company, as well as any other
+class or series of capital stock of the Company entitled to vote generally in
+the election of directors to the Board.
+
+ 
+
+Section 1.02        Other Definitional and Interpretive Provisions. The words
+“hereof,” “herein” and “hereunder” and words of like import used in this
+Agreement shall refer to this Agreement as a whole and not to any particular
+provision of this Agreement. References in the singular or to “him,” “her,”
+“it,” “itself” or other like references, and references in the plural or the
+feminine or masculine reference, as the case may be, shall also, when the
+context so requires, be deemed to include the plural or singular, or the
+masculine or feminine reference, as the case may be. References to the Preamble,
+Recitals, Articles and Sections shall refer to the Preamble, Recitals, Articles
+and Sections of this Agreement, unless otherwise specified. The headings in this
+Agreement are for convenience and identification only and are not intended to
+describe, interpret, define or limit the scope, extent or intent of this
+Agreement or any provision thereof. References to any statute shall be deemed to
+refer to such statute as amended from time to time and to any rules or
+regulations promulgated thereunder. References to any agreement or contract are
+to that agreement or contract as amended, modified or supplemented from time to
+time in accordance with the terms hereof and thereof. References to “include,”
+“includes” and “including” in this Agreement shall be deemed to be followed by
+the words “without limitation,” whether or not so specified. This Agreement
+shall be construed without regard to any presumption or other rule requiring
+construction against the party that drafted and caused this Agreement to be
+drafted.
+
+ 
+
+Article II
+NOMINATION RIGHTS
+
+ 
+
+Section 2.01        Number of Directors. Except as required by applicable law or
+the listing standards of the Securities Exchange, from and after the Effective
+Date until the Termination Date, the Company shall not, without the prior
+written consent of MDP, take any action to (i) increase the number of directors
+on the Board to more than nine directors, (ii) alter, remove or amend the
+classification of the Board into three groups of directors with staggered
+three-year terms or (iii) amend the Bylaws to provide for a voting standard in
+the election of directors other than plurality voting.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Section 2.02        Board Nominees.
+
+ 
+
+(a)               Subject to the terms and conditions of this Agreement, from
+and after the Effective Date until the Termination Date, at every meeting of the
+Board, or a committee thereof, at which directors of the Company are appointed
+by the Board or are nominated to stand for election by stockholders of the
+Company, MDP shall have the right to nominate for election to the Board (the
+“MDP Designated Directors”):
+
+ 
+
+(i)                 two nominees until the first time when the Voting Percentage
+of MDP and its Affiliates is less than 15%, one of whom shall be a Group II
+director and the other of whom shall be a Group III director under the
+Certificate of Incorporation as designated by MDP; and
+
+ 
+
+(ii)              one nominee until the first time when the Voting Percentage of
+MDP and its Affiliates is less than 5%, who shall be either a Group II director
+or a Group III director under the Certificate of Incorporation;
+
+ 
+
+provided that no reduction in the Voting Percentage of MDP and its Affiliates
+shall shorten the term of any director serving on the Board. The initial MDP
+Designated Directors as of the Effective Date are Vahe A. Dombalagian (who has
+been named as a Group III director) and Matthew W. Raino (who has been named as
+a Group II director).
+
+ 
+
+(b)               Subject to Section 2.02(c), the Company shall take all actions
+(to the extent such actions are permitted by applicable law) to (i) include each
+MDP Designated Director in the slate of director nominees for election by the
+Company’s stockholders and (ii) include each MDP Designated Director in the
+proxy statement prepared by the Company in connection with soliciting proxies
+for every meeting of the stockholders of the Company called with respect to the
+election of members of the Board, and at every adjournment or postponement
+thereof, and on every action or approval by written consent of the Board with
+respect to the election of members of the Board.
+
+ 
+
+(c)               The Company’s obligations pursuant to Section 2.02(b) shall be
+subject to each MDP Designated Director providing, fully and completely, (i) any
+information that is required to be disclosed in any filing or report under the
+listing standards of the Securities Exchange and applicable law, (ii) any
+information that is required in connection with determining the independence
+status of the MDP Designated Directors under the listing standards of the
+Securities Exchange and applicable law, and (iii) if required by applicable law,
+such individual’s written consent to being named in a proxy statement as a
+nominee and to serving as director if elected.
+
+ 
+
+(d)               If an MDP Designated Director is not appointed, nominated or
+elected to the Board because of such person’s death, disability,
+disqualification, withdrawal as a nominee or for other reason, (i) MDP shall be
+entitled to designate another nominee and shall do so as promptly as practicable
+following the failure of such MDP Designated Director to be appointed, nominated
+or elected to the Board and (ii) the director position for which the original
+MDP Designated Director was nominated shall not be filled pending such
+designation.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+(e)               If a vacancy occurs because of the death, disability,
+disqualification, resignation or removal of a MDP Designated Director or for any
+other reason, MDP shall be entitled to designate such person’s successor
+(regardless of the Voting Percentage held by MDP at the time of such replacement
+designation), and the Board shall promptly fill the vacancy with such successor,
+it being understood that any such successor designee shall serve the remainder
+of the term of the MDP Designated Director whom such designee replaces. MDP
+shall designate a successor pursuant to this Section 2.02(e) as promptly as
+practicable following any such vacancy.
+
+ 
+
+Section 2.03        Compensation; Reimbursement of Expenses. The Company shall
+reimburse each MDP Designated Director for all reasonable and documented
+out-of-pocket expenses properly incurred in connection with such MDP Designated
+Director’s participation in the meetings of the Board or any committee of the
+Board and all functions and duties as a member of the Board, including all
+reasonable and documented travel, lodging and meal expenses, in each case to the
+same extent as the Company reimburses the other non-executive members of the
+Board for such expenses.
+
+ 
+
+Section 2.04        Indemnification, Exculpation and Insurance.
+
+ 
+
+(a)               The Company shall maintain in effect at all times directors’
+and officers’ indemnity insurance covering the MDP Designated Directors to the
+same extent and on the same terms as any directors’ and officers’ indemnity
+insurance maintained by the Company with respect to the other non-executive
+members of the Board. Any directors’ and officers’ indemnity insurance shall be
+secondary to any insurance coverage for any of the MDP Designated Directors
+maintained by MDP.
+
+ 
+
+(b)               The Company shall not amend or alter any right to
+indemnification, exculpation or the advancement of expenses covering or
+benefiting any MDP Designated Director contained in the Certificate of
+Incorporation or Bylaws as in effect on the Effective Date without the prior
+written consent of the MDP, except to the extent (i) required by applicable law
+or the listing standards of the Securities Exchange (and in such cases, in
+accordance with the Certificate of Incorporation or the Bylaws) or (ii) such
+amendment or alteration provides a broader right to indemnification, exculpation
+or advancement of expenses than those previously contained in the Certificate of
+Incorporation or Bylaws, as applicable.
+
+ 
+
+Section 2.05        Corporate Policies. Except as otherwise provided in the
+Certificate of Incorporation, MDP acknowledges that each MDP Designated Director
+will be subject to all applicable corporate governance, conflict of interest,
+confidentiality, stock ownership and insider trading policies and guidelines of
+the Company, each as approved by the Board from time to time to the extent such
+policies and guidelines are applicable to all non-executive directors.
+Notwithstanding the foregoing, no confidentiality policy shall preclude any MDP
+Designated Director that is an employee of MDP or its Affiliates from sharing
+information with MDP (but not MDP’s portfolio companies); provided that MDP
+maintains the confidentiality of such information.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Article III
+EFFECTIVENESS AND TERMINATION
+
+ 
+
+Section 3.01        Termination. This Agreement and all rights and obligations
+hereunder shall terminate upon the earlier to occur of (a) the Termination Date
+and (b) the delivery of written notice to the Company by MDP terminating this
+Agreement.
+
+ 
+
+Article IV
+MISCELLANEOUS
+
+ 
+
+Section 4.01        Notices. All notices, requests, consents and other
+communications hereunder to any party shall be in writing and shall be
+personally delivered, sent by nationally recognized overnight courier or mailed
+by registered or certified mail to such party at the address set forth below, or
+sent by e-mail transmission (or such other address or contact information as
+shall be specified by like notice):
+
+ 
+
+(a)               if to the Company, to:
+
+ 
+
+EVO Payments, Inc.
+
+Ten Glenlake Parkway
+
+South Tower, Suite 950
+
+Atlanta, Georgia 30328
+
+Attention: Steven J. de Groot
+
+Executive Vice President and General Counsel
+
+E-mail: Steve.deGroot@evopayments.com
+
+ 
+
+with a copy which shall not constitute notice to:
+
+ 
+
+King & Spalding LLP
+
+1180 Peachtree Street
+
+Atlanta, Georgia 30309
+
+Attention: Keith M. Townsend, Zachary L. Cochran and Robert Leclerc
+
+Email: ktownsend@kslaw.com, zcochran@kslaw.com and rleclerc@kslaw.com
+
+ 
+
+(b)               if to MDP or any MDP Designated Director, to:
+
+ 
+
+c/o Madison Dearborn Partners, LLC
+
+70 W. Madison St.
+
+Suite 4600
+
+Chicago, Illinois 60602
+
+Attention: Vahe A. Dombalagian
+
+Email: vdombalagian@mdcp.com
+
+ 
+
+with a copy which shall not constitute notice to:
+
+ 
+
+Latham & Watkins LLP
+
+330 N. Wabash Avenue, Suite 2800
+
+Chicago, Illinois 60611
+
+Attention: Neal J. Reenan, Greg Rodgers and Jonathan P. Solomon
+
+Emails: neal.reenan@lw.com, greg.rodgers@lw.com and jonathan.solomon@lw.com
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Notices will be deemed to have been given hereunder when personally delivered or
+when receipt of e-mail has been acknowledged by non-automated response, one
+calendar day after deposit with a nationally recognized overnight courier and
+five calendar days after deposit in U.S. mail.
+
+ 
+
+Section 4.02        Severability. The provisions of this Agreement shall be
+deemed severable, and the invalidity or unenforceability of any provision shall
+not affect the validity or enforceability of the other provisions hereof. If any
+provision of this Agreement, or the application thereof to any Person or any
+circumstance, is found to be invalid or unenforceable in any jurisdiction, (a) a
+suitable and equitable provision shall be substituted therefor in order to carry
+out, so far as may be valid and enforceable, the intent and purpose of such
+invalid or unenforceable provision and (b) the remainder of this Agreement and
+the application of such provision to other Persons or circumstances shall not be
+affected by such invalidity or unenforceability, nor shall such invalidity or
+unenforceability affect the validity or enforceability of such provision, or the
+application thereof, in any other jurisdiction.
+
+ 
+
+Section 4.03        Counterparts. This Agreement may be executed in any number
+of counterparts, each of which shall be deemed an original and all of which,
+taken together, shall be considered one and the same agreement.
+
+ 
+
+Section 4.04        Entire Agreement; No Third Party Beneficiaries. This
+Agreement (a) constitutes the entire agreement and supersedes all other prior
+agreements, both written and oral, among the parties with respect to the subject
+matter hereof and (b) is not intended to confer upon any Person, other than the
+parties hereto, any rights or remedies hereunder.
+
+ 
+
+Section 4.05        Further Assurances.  Each party shall execute, deliver,
+acknowledge and file such other documents and take such further actions as may
+be reasonably requested from time to time by the other parties hereto to give
+effect to and carry out the transactions contemplated herein.
+
+ 
+
+Section 4.07        Governing Law; Equitable Remedies. THIS AGREEMENT SHALL BE
+GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
+(WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF). The parties
+hereto agree that irreparable damage would occur in the event that any of the
+provisions of this Agreement were not performed in accordance with its specific
+terms or was otherwise breached. It is accordingly agreed that the parties
+hereto shall be entitled to an injunction or injunctions and other equitable
+remedies to prevent breaches of this Agreement and to enforce specifically the
+terms and provisions hereof in any of the Selected Courts (as defined below),
+this being in addition to any other remedy to which they are entitled at law or
+in equity. Any requirements for the securing or posting of any bond with respect
+to such remedy are hereby waived by each of the parties hereto. Each party
+further agrees that, in the event of any action for an injunction or other
+equitable remedy in respect of such breach or enforcement of specific
+performance, it will not assert the defense that a remedy at law would be
+adequate.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+Section 4.08        Consent To Jurisdiction. With respect to any suit, action or
+proceeding (“Proceeding”) arising out of or relating to this Agreement, each of
+the parties hereto hereby irrevocably (a) submits to the non-exclusive
+jurisdiction of the Court of Chancery of the State of Delaware and the United
+States District Court for the District of Delaware and the appellate courts
+therefrom (the “Selected Courts”) and waives any objection to venue being laid
+in the Selected Courts whether based on the grounds of forum non conveniens or
+otherwise and hereby agrees not to commence any such Proceeding other than
+before one of the Selected Courts; provided, however, that a party may commence
+any Proceeding in a court other than a Selected Court solely for the purpose of
+enforcing an order or judgment issued by one of the Selected Courts; (b)
+consents to service of process in any Proceeding by the mailing of copies
+thereof by registered or certified mail, postage prepaid, or by recognized
+international express carrier or delivery service, to the Company or MDP at
+their respective addresses referred to in Section 4.01 hereof; provided,
+however, that nothing herein shall affect the right of any party hereto to serve
+process in any other manner permitted by law; and (c) TO THE EXTENT NOT
+PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, WAIVES, AND COVENANTS THAT
+IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
+TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION
+WITH THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
+SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREES THAT ANY OF THEM MAY FILE A
+COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
+VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE THE
+RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO
+THIS AGREEMENT AND TO HAVE ALL MATTERS RELATING TO THIS AGREEMENT BE TRIED IN A
+COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
+
+ 
+
+Section 4.09        Amendments; Waivers.
+
+ 
+
+(a)               No provision of this Agreement may be amended or waived unless
+such amendment or waiver is in writing and signed, in the case of an amendment,
+by the Company and MDP, or, in the case of a waiver, by each of the parties
+against whom the waiver is to be effective.
+
+ 
+
+(b)               No failure or delay by any party in exercising any right,
+power or privilege hereunder shall operate as waiver thereof nor shall any
+single or partial exercise thereof preclude any other or further exercise
+thereof or the exercise of any other right, power or privilege. The rights and
+remedies herein provided shall be cumulative and not exclusive of any rights or
+remedies provided by law.
+
+ 
+
+Section 4.10 Assignment
+
+ 
+
+Neither this Agreement nor any of the rights or obligations hereunder shall be
+assigned by any of the parties hereto without the prior written consent of the
+other parties; provided that MDP may assign this Agreement to any of its
+Affiliates without the Company’s prior written consent.
+
+ 
+
+This Agreement will be binding upon, inure to the benefit of and be enforceable
+by the parties and their respective successors and permitted assigns.
+
+ 
+
+Section 4.11 Effect on Prior Agreement
+
+ 
+
+Upon the execution and delivery of this Agreement by the Company and each of the
+Existing MDP Parties, the Prior Agreement shall automatically terminate and be
+of no further force and effect and shall be superseded in its entirety by this
+Agreement.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
+and delivered, all as of the date first set forth above.
+
+ 
+
+  EVO PAYMENTS, INC.       By:       Name: Steven J. de Groot     Title:
+Executive Vice President, General Counsel and Secretary
+
+ 
+
+[Signature Page to Amended and Restated Director Nomination Agreement]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+MADISON DEARBORN PARTNERS, LLC       By:       Name: Vahe A. Dombalagian    
+Its: Managing Director           MADISON DEARBORN PARTNERS VI-A&C, L.P.      
+By: Madison Dearborn Partners, LLC   Its: General Partner       By:       Name:
+Vahe A. Dombalagian     Its: Managing Director           MADISON DEARBORN
+CAPITAL PARTNERS VI- C, L.P.       By: Madison Dearborn Partners VI-A&C, L.P.  
+Its: General Partner       By: Madison Dearborn Partners, LLC   Its: General
+Partner       By:       Name: Vahe A. Dombalagian     Its: Managing Director    
+      MADISON DEARBORN PARTNERS VI-B, L.P.       By: Madison Dearborn Partners,
+LLC   Its: General Partner       By:       Name: Vahe A. Dombalagian     Its:
+Managing Director  
+
+ 
+
+[Signature Page to Amended and Restated Director Nomination Agreement]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+MDCP VI-C CARDSERVICES BLOCKER CORP.       By:       Name: Vahe A. Dombalagian  
+  Its: Managing Director       MADISON DEARBORN CAPITAL PARTNERS VI-B, L.P.    
+  By: Madison Dearborn Partners VI-B, L.P.   Its: General Partner       By:
+Madison Dearborn Partners, LLC   Its: General Partner       By:       Name: Vahe
+A. Dombalagian     Its: Managing Director           MADISON DEARBORN CAPITAL
+PARTNERS VI EXECUTIVE-B, L.P.       By: Madison Dearborn Partners VI-B, L.P.  
+Its: General Partner       By: Madison Dearborn Partners, LLC   Its: General
+Partner       By:       Name: Vahe A. Dombalagian     Its: Managing Director  
+
+ 
+
+[Signature Page to Amended and Restated Director Nomination Agreement]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+MDCP IV-C CARDSERVICES SPLITTER, L.P.       By: Madison Dearborn Partners VI-B,
+L.P.   Its: General Partner       By: Madison Dearborn Partners, LLC   Its:
+General Partner       By:       Name: Vahe A. Dombalagian     Its: Managing
+Director           MDCP CARDSERVICES, LLC       By: Madison Dearborn Capital
+Partners VI-B, L.P.   Its: Controlling Member       By: Madison Dearborn
+Partners VI-B, L.P.   Its: General Partner       By: Madison Dearborn Partners,
+LLC   Its: General Partner       By:       Name: Vahe A. Dombalagian     Its:
+Managing Director  
+
+ 
+
+[Signature Page to Amended and Restated Director Nomination Agreement]
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+MADISON DEARBORN CAPITAL PARTNERS VI-A, L.P.       By: Madison Dearborn Partners
+VI-A&C, L.P.   Its: General Partner       By: Madison Dearborn Partners, LLC  
+Its: General Partner       By:       Name: Vahe A. Dombalagian     Its: Managing
+Director       MADISON DEARBORN CAPITAL PARTNERS VI EXECUTIVE-A, L.P.       By:
+Madison Dearborn Partners VI-A&C, L.P.   Its: General Partner       By: Madison
+Dearborn Partners, LLC   Its: General Partner       By:       Name: Vahe A.
+Dombalagian     Its: Managing Director  
+
+ 
+
+[Signature Page to Amended and Restated Director Nomination Agreement]
+
+ 
+
+
+
+ 
+
+ 
+
+
+ 
+
+EXHIBIT 10.1
+
+ 
+
+ 
+
+  
+
+TERM LOAN AGREEMENT
+
+ 
+
+AMONG
+
+ 
+
+ELYSIUM ENERGY HOLDINGS, LLC,
+
+ 
+
+as Holdings
+
+ 
+
+ELYSIUM ENERGY, LLC,
+
+ELYSIUM ENERGY LA, LLC,
+
+ELYSIUM ENERGY TX, LLC,
+
+POINTE A LA HACHE, L.L.C.,
+
+TURTLE BAYOU, L.L.C.,
+
+POTASH, L.L.C.,
+
+RAMOS FIELD, L.L.C
+
+AND
+ALL SUBSIDIARIES,
+as Borrowers
+
+ 
+
+and
+
+ 
+
+405 WOODBINE LLC,
+
+as Administrative Agent
+
+ 
+
+and
+
+ 
+
+THE LENDERS SIGNATORY HERETO,
+as Lenders
+
+ 
+
+February 3, 2020
+
+ 
+
+ 
+
+ 
+
+
+
+
+
+  
+
+  
+
+ 
+
+
+
+TABLE OF CONTENTS
+
+ 
+
+ 
+
+ 
+
+ 
+
+Page
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE I DEFINITIONS AND INTERPRETATION
+
+ 
+
+1
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+1.1
+
+Terms Defined Above
+
+ 
+
+1
+
+ 
+
+ 
+
+1.2
+
+Additional Defined Terms
+
+ 
+
+1
+
+ 
+
+ 
+
+1.3
+
+Undefined Financial Accounting Terms
+
+ 
+
+23
+
+ 
+
+ 
+
+1.4
+
+References
+
+ 
+
+23
+
+ 
+
+ 
+
+1.5
+
+Articles and Sections
+
+ 
+
+24
+
+ 
+
+ 
+
+1.6
+
+Number and Gender
+
+ 
+
+24
+
+ 
+
+ 
+
+1.7
+
+Incorporation of Schedules and Exhibits
+
+ 
+
+24
+
+ 
+
+ 
+
+1.8
+
+Negotiated Transaction
+
+ 
+
+24
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE II TERMS OF FACILITY
+
+ 
+
+24
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+2.1
+
+Term Loan
+
+ 
+
+24
+
+ 
+
+ 
+
+2.2
+
+Use of Loan Proceeds
+
+ 
+
+25
+
+ 
+
+ 
+
+2.3
+
+Repayment of Term Loan
+
+ 
+
+25
+
+ 
+
+ 
+
+2.4
+
+[Reserved]
+
+ 
+
+26
+
+ 
+
+ 
+
+2.5
+
+Outstanding Amounts
+
+ 
+
+26
+
+ 
+
+ 
+
+2.6
+
+Taxes and Time, Place, and Method of Payments
+
+ 
+
+26
+
+ 
+
+ 
+
+2.7
+
+Pro Rata Treatment; Adjustments
+
+ 
+
+29
+
+ 
+
+ 
+
+2.8
+
+Voluntary Prepayments
+
+ 
+
+30
+
+ 
+
+ 
+
+2.9
+
+Mandatory Prepayments
+
+ 
+
+30
+
+ 
+
+ 
+
+2.10
+
+Loans to Satisfy Obligations of Borrowers
+
+ 
+
+32
+
+ 
+
+ 
+
+2.11
+
+General Provisions Relating to Interest
+
+ 
+
+32
+
+ 
+
+ 
+
+2.12
+
+Increased Costs, etc
+
+ 
+
+33
+
+ 
+
+ 
+
+2.13
+
+Taxes; Withholding, etc
+
+ 
+
+34
+
+ 
+
+ 
+
+2.14
+
+Replacement Lenders
+
+ 
+
+37
+
+ 
+
+ 
+
+2.15
+
+Security Interest in Accounts; Right of Offset
+
+ 
+
+38
+
+ 
+
+ 
+
+2.16
+
+Illegality
+
+ 
+
+38
+
+ 
+
+ 
+
+2.17
+
+Power of Attorney
+
+ 
+
+38
+
+ 
+
+ 
+
+2.18
+
+Keepwell
+
+ 
+
+38
+
+ 
+
+ 
+
+2.19
+
+Joint and Several Liability
+
+ 
+
+38
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE III CONDITIONS
+
+ 
+
+39
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+3.1
+
+Conditions of the Closing Date
+
+ 
+
+39
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE IV REPRESENTATIONS AND WARRANTIES
+
+ 
+
+42
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+4.1
+
+Due Authorization
+
+ 
+
+42
+
+ 
+
+ 
+
+4.2
+
+Existence
+
+ 
+
+43
+
+ 
+
+ 
+
+4.3
+
+Valid and Binding Obligations
+
+ 
+
+43
+
+ 
+
+ 
+
+4.4
+
+Security Documents
+
+ 
+
+43
+
+ 
+
+ 
+
+4.5
+
+Title to Property
+
+ 
+
+43
+
+ 
+
+ 
+
+
+
+ - i -
+
+  
+
+  
+
+ 
+
+4.6
+
+Scope and Accuracy of Financial Statements
+
+ 
+
+44
+
+ 
+
+ 
+
+4.7
+
+No Material Adverse Effect or Default
+
+ 
+
+44
+
+ 
+
+ 
+
+4.8
+
+No Material Misstatements
+
+ 
+
+44
+
+ 
+
+ 
+
+4.9
+
+Liabilities, Litigation and Restrictions
+
+ 
+
+45
+
+ 
+
+ 
+
+4.10
+
+Authorizations; Consents
+
+ 
+
+45
+
+ 
+
+ 
+
+4.11
+
+Compliance with Laws
+
+ 
+
+45
+
+ 
+
+ 
+
+4.12
+
+ERISA
+
+ 
+
+45
+
+ 
+
+ 
+
+4.13
+
+Environmental Laws
+
+ 
+
+45
+
+ 
+
+ 
+
+4.14
+
+Compliance with Federal Reserve Regulations
+
+ 
+
+46
+
+ 
+
+ 
+
+4.15
+
+Investment Company Act Compliance
+
+ 
+
+46
+
+ 
+
+ 
+
+4.16
+
+Proper Filing of Tax Returns; Payment of Taxes Due
+
+ 
+
+46
+
+ 
+
+ 
+
+4.17
+
+Refunds
+
+ 
+
+46
+
+ 
+
+ 
+
+4.18
+
+Gas Contracts
+
+ 
+
+47
+
+ 
+
+ 
+
+4.19
+
+Intellectual Property
+
+ 
+
+47
+
+ 
+
+ 
+
+4.20
+
+Casualties or Taking of Property
+
+ 
+
+47
+
+ 
+
+ 
+
+4.21
+
+Location of Borrowers
+
+ 
+
+47
+
+ 
+
+ 
+
+
+
+ 
+
+4.22
+
+Subsidiaries
+
+ 
+
+47
+
+ 
+
+ 
+
+4.23
+
+Compliance with Anti-Terrorism Laws
+
+ 
+
+47
+
+ 
+
+ 
+
+4.24
+
+Identification Numbers
+
+ 
+
+48
+
+ 
+
+ 
+
+4.25
+
+Solvency
+
+ 
+
+48
+
+ 
+
+ 
+
+4.26
+
+Related Party Transactions
+
+ 
+
+48
+
+ 
+
+ 
+
+4.27
+
+Material Contracts
+
+ 
+
+49
+
+ 
+
+ 
+
+4.28
+
+Employee Matters
+
+ 
+
+49
+
+ 
+
+ 
+
+4.29
+
+Brokers
+
+ 
+
+49
+
+ 
+
+ 
+
+4.30
+
+Separate Entity
+
+ 
+
+49
+
+ 
+
+ 
+
+4.31
+
+Marketing of Production
+
+ 
+
+50
+
+ 
+
+ 
+
+4.32
+
+Acquisition Agreement
+
+ 
+
+50
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE V AFFIRMATIVE COVENANTS
+
+ 
+
+50
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+5.1
+
+Maintenance and Access to Records
+
+ 
+
+50
+
+ 
+
+ 
+
+5.2
+
+Monthly Unaudited Financial Statements and Compliance Certificates
+
+ 
+
+50
+
+ 
+
+ 
+
+5.3
+
+Annual Audited Financial Statements and Compliance Certificate
+
+ 
+
+51
+
+ 
+
+ 
+
+5.4
+
+Reserve Reports; LOE Reports; Production Reports; Payables Aging; Additional
+Development Plans and Financial Projections
+
+ 
+
+51
+
+ 
+
+ 
+
+5.5
+
+Title Opinions; Title Defects; Mortgaged Properties
+
+ 
+
+52
+
+ 
+
+ 
+
+5.6
+
+Notices of Certain Events
+
+ 
+
+52
+
+ 
+
+ 
+
+5.7
+
+Letters in Lieu of Transfer Orders or Division Orders
+
+ 
+
+53
+
+ 
+
+ 
+
+5.8
+
+Commodity Hedging
+
+ 
+
+53
+
+ 
+
+ 
+
+5.9
+
+Tax Returns
+
+ 
+
+53
+
+ 
+
+ 
+
+5.10
+
+Additional Information
+
+ 
+
+53
+
+ 
+
+ 
+
+5.11
+
+Compliance with Laws
+
+ 
+
+54
+
+ 
+
+ 
+
+5.12
+
+Payment of Assessments and Charges
+
+ 
+
+54
+
+ 
+
+ 
+
+5.13
+
+Maintenance of Existence or Qualification and Good Standing
+
+ 
+
+54
+
+ 
+
+ 
+
+5.14
+
+Payment of Notes; Performance of Obligations
+
+ 
+
+54
+
+ 
+
+ 
+
+
+
+ - ii -
+
+  
+
+ 
+
+
+
+ 
+
+5.15
+
+Further Assurances
+
+ 
+
+54
+
+ 
+
+ 
+
+5.16
+
+Initial Expenses of Agent
+
+ 
+
+55
+
+ 
+
+ 
+
+5.17
+
+Subsequent Expenses of Agent and Lenders
+
+ 
+
+55
+
+ 
+
+ 
+
+5.18
+
+Maintenance of Properties; Books and Records; Inspections
+
+ 
+
+56
+
+ 
+
+ 
+
+5.19
+
+Maintenance of Insurance
+
+ 
+
+56
+
+ 
+
+ 
+
+5.20
+
+Environmental Indemnification
+
+ 
+
+57
+
+ 
+
+ 
+
+5.21
+
+General Indemnification
+
+ 
+
+58
+
+ 
+
+ 
+
+5.22
+
+Evidence of Compliance with Anti-Terrorism Laws
+
+ 
+
+58
+
+ 
+
+ 
+
+5.23
+
+Board and Management Meetings
+
+ 
+
+58
+
+ 
+
+ 
+
+5.24
+
+Leases
+
+ 
+
+58
+
+ 
+
+ 
+
+5.25
+
+Maximum Permitted Monthly General and Administrative Cost Allocation
+
+ 
+
+59
+
+ 
+
+ 
+
+5.26
+
+Material Contracts
+
+ 
+
+59
+
+ 
+
+ 
+
+5.27
+
+Information Regarding Collateral
+
+ 
+
+59
+
+ 
+
+ 
+
+5.28
+
+Lockbox Account
+
+ 
+
+59
+
+ 
+
+ 
+
+5.29
+
+Additional Properties; Other Collateral
+
+ 
+
+59
+
+ 
+
+ 
+
+5.30
+
+Other Financial Reporting Obligations
+
+ 
+
+60
+
+ 
+
+ 
+
+5.31
+
+Removal of Operator
+
+ 
+
+60
+
+ 
+
+ 
+
+5.32
+
+Maintenance of Bonds, Guarantees
+
+ 
+
+60
+
+ 
+
+ 
+
+5.33
+
+Post-Closing Obligation
+
+ 
+
+60
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE VI NEGATIVE COVENANTS
+
+ 
+
+61
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+6.1
+
+Indebtedness
+
+ 
+
+61
+
+ 
+
+ 
+
+6.2
+
+Contingent Obligations
+
+ 
+
+61
+
+ 
+
+ 
+
+6.3
+
+Liens
+
+ 
+
+61
+
+ 
+
+ 
+
+6.4
+
+Sales of Assets
+
+ 
+
+62
+
+ 
+
+ 
+
+6.5
+
+Leasebacks
+
+ 
+
+62
+
+ 
+
+ 
+
+6.6
+
+Sale or Discount of Receivables
+
+ 
+
+62
+
+ 
+
+ 
+
+6.7
+
+Loans or Advances
+
+ 
+
+62
+
+ 
+
+ 
+
+6.8
+
+Investments
+
+ 
+
+62
+
+ 
+
+ 
+
+6.9
+
+Dividends and Distributions
+
+ 
+
+63
+
+ 
+
+ 
+
+6.10
+
+Issuance of Equity; Changes in Corporate Structure
+
+ 
+
+63
+
+ 
+
+ 
+
+6.11
+
+Transactions with Affiliates and Certain Other Person
+
+ 
+
+63
+
+ 
+
+ 
+
+6.12
+
+Lines of Business
+
+ 
+
+63
+
+ 
+
+ 
+
+6.13
+
+Plan Obligation
+
+ 
+
+63
+
+ 
+
+ 
+
+6.14
+
+Anti-Terrorism Laws
+
+ 
+
+63
+
+ 
+
+ 
+
+6.15
+
+Amendment of Material Contracts
+
+ 
+
+64
+
+ 
+
+ 
+
+6.16
+
+Provisions of Commodity Hedge Agreements
+
+ 
+
+64
+
+ 
+
+ 
+
+6.17
+
+Maintenance of Commodity Hedge Agreements
+
+ 
+
+64
+
+ 
+
+ 
+
+6.18
+
+Deposit Accounts
+
+ 
+
+64
+
+ 
+
+ 
+
+6.19
+
+Development Plans
+
+ 
+
+64
+
+ 
+
+ 
+
+6.20
+
+Subsidiaries
+
+ 
+
+64
+
+ 
+
+ 
+
+6.21
+
+Current Ratio
+
+ 
+
+64
+
+ 
+
+ 
+
+6.22
+
+PDP Collateral Coverage
+
+ 
+
+64
+
+ 
+
+
+
+ 
+
+
+
+ - iii -
+
+  
+
+ 
+
+
+
+ 
+
+6.23
+
+Maximum Leverage
+
+ 
+
+65
+
+ 
+
+ 
+
+6.24
+
+Organizational Documents
+
+ 
+
+65
+
+ 
+
+ 
+
+6.25
+
+Negative Pledge Agreements
+
+ 
+
+65
+
+ 
+
+ 
+
+6.26
+
+Material Accounting Changes
+
+ 
+
+65
+
+ 
+
+ 
+
+6.27
+
+Amended to Acquisition Documents
+
+ 
+
+65
+
+ 
+
+ 
+
+6.28
+
+Passive Status of Holdings
+
+ 
+
+66
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE VII EVENTS OF DEFAULT
+
+ 
+
+66
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+7.1
+
+Enumeration of Events of Default
+
+ 
+
+66
+
+ 
+
+ 
+
+7.2
+
+Remedies
+
+ 
+
+69
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE VIII THE AGENT
+
+ 
+
+70
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+8.1
+
+Appointment
+
+ 
+
+70
+
+ 
+
+ 
+
+8.2
+
+Delegation of Duties
+
+ 
+
+70
+
+ 
+
+ 
+
+8.3
+
+Exculpatory Provisions
+
+ 
+
+70
+
+ 
+
+ 
+
+8.4
+
+Reliance by Agent
+
+ 
+
+71
+
+ 
+
+ 
+
+8.5
+
+Notice of Default
+
+ 
+
+71
+
+ 
+
+ 
+
+8.6
+
+Non-Reliance on Agent and Other Lenders
+
+ 
+
+71
+
+ 
+
+ 
+
+8.7
+
+Indemnification
+
+ 
+
+72
+
+ 
+
+ 
+
+8.8
+
+Restitution
+
+ 
+
+72
+
+ 
+
+ 
+
+8.9
+
+Agent in Its Individual Capacity
+
+ 
+
+73
+
+ 
+
+ 
+
+8.10
+
+Successor Agent
+
+ 
+
+73
+
+ 
+
+ 
+
+8.11
+
+Applicable Parties
+
+ 
+
+74
+
+ 
+
+ 
+
+8.12
+
+Releases
+
+ 
+
+74
+
+ 
+
+ 
+
+8.13
+
+Credit Bidding
+
+ 
+
+74
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ARTICLE IX MISCELLANEOUS
+
+ 
+
+75
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+9.1
+
+Assignments; Participations
+
+ 
+
+75
+
+ 
+
+ 
+
+9.2
+
+Survival of Representations, Warranties, and Covenants
+
+ 
+
+76
+
+ 
+
+ 
+
+9.3
+
+Notices and Other Communications
+
+ 
+
+76
+
+ 
+
+ 
+
+9.4
+
+Parties in Interest
+
+ 
+
+77
+
+ 
+
+ 
+
+9.5
+
+Rights of Third Parties
+
+ 
+
+77
+
+ 
+
+ 
+
+9.6
+
+Renewals; Extensions
+
+ 
+
+78
+
+ 
+
+ 
+
+9.7
+
+No Waiver; Rights Cumulative
+
+ 
+
+78
+
+ 
+
+ 
+
+9.8
+
+Survival Upon Unenforceability
+
+ 
+
+78
+
+ 
+
+ 
+
+9.9
+
+Amendments; Waivers
+
+ 
+
+78
+
+ 
+
+ 
+
+9.10
+
+Controlling Agreement
+
+ 
+
+79
+
+ 
+
+ 
+
+9.11
+
+Disposition of Collateral
+
+ 
+
+79
+
+ 
+
+ 
+
+9.12
+
+Governing Law
+
+ 
+
+79
+
+ 
+
+ 
+
+9.13
+
+Dispute Resolution
+
+ 
+
+79
+
+ 
+
+ 
+
+9.14
+
+Jurisdiction and Venue
+
+ 
+
+81
+
+ 
+
+ 
+
+9.15
+
+Integration
+
+ 
+
+82
+
+ 
+
+ 
+
+9.16
+
+Waiver of Punitive and Consequential Damages
+
+ 
+
+82
+
+ 
+
+ 
+
+9.17
+
+Counterparts
+
+ 
+
+82
+
+ 
+
+ 
+
+9.18
+
+USA Patriot Act Notice
+
+ 
+
+82
+
+ 
+
+ 
+
+9.19
+
+Tax Shelter Regulations
+
+ 
+
+82
+
+ 
+
+ 
+
+9.20
+
+Contribution and Indemnification
+
+ 
+
+82
+
+ 
+
+ 
+
+9.21
+
+Inconsistencies with Other Documents
+
+ 
+
+82
+
+ 
+
+
+
+ 
+
+
+
+ - iv -
+
+  
+
+ 
+
+LIST OF SCHEDULES
+
+ 
+
+Schedule 1.2B
+
+–
+
+Percentage Shares
+
+ 
+
+S-1.2B-i
+
+ 
+
+Schedule 2.2
+
+–
+
+Use of Loan Proceeds
+
+ 
+
+S-2.2-i
+
+ 
+
+Schedule 3.1(h)
+
+–
+
+Certain Agreements
+
+ 
+
+S-3.1(h)-i
+
+ 
+
+Schedule 3.1(p)
+
+–
+
+Direction Letters
+
+ 
+
+S-3.1(p)-i
+
+ 
+
+Schedule 4.5A
+
+–
+
+Liens
+
+ 
+
+S-4.5A-i
+
+ 
+
+Schedule 4.5B
+
+–
+
+Real Property
+
+ 
+
+S-4.B-i
+
+ 
+
+Schedule 4.5C
+
+–
+
+Oil and Gas Properties
+
+ 
+
+S4.5C-i
+
+ 
+
+Schedule 4.6
+
+–
+
+Accounts Payable
+
+ 
+
+S-4.6-i
+
+ 
+
+Schedule 4.9
+
+–
+
+Liabilities and Litigation
+
+ 
+
+S-4.9-i
+
+ 
+
+Schedule 4.10
+
+–
+
+Authorizations; Consents
+
+ 
+
+S-4.10-i
+
+ 
+
+Schedule 4.13
+
+–
+
+Environmental Disclosures
+
+ 
+
+S-4.13-i
+
+ 
+
+Schedule 4.17
+
+–
+
+Refunds
+
+ 
+
+S-4.17-i
+
+ 
+
+Schedule 4.18
+
+–
+
+Gas Contracts
+
+ 
+
+S-4.18-i
+
+ 
+
+Schedule 4.22A
+
+–
+
+Subsidiaries
+
+ 
+
+S-4.22A-i
+
+ 
+
+Schedule 4.22B
+
+–
+
+Organizational Chart
+
+ 
+
+S-4.22B-i
+
+ 
+
+Schedule 4.24
+
+–
+
+EIN, Jurisdiction of Formation and Location
+
+ 
+
+S-4.24-i
+
+ 
+
+Schedule 4.26
+
+–
+
+Related Party Transfers
+
+ 
+
+S-4.26-i
+
+ 
+
+Schedule 4.27A
+
+–
+
+Material Contracts
+
+ 
+
+S-4.27A-i
+
+ 
+
+Schedule 4.28B
+
+–
+
+Material Contracts
+
+ 
+
+S-4.27B-i
+
+ 
+
+Schedule 4.29
+
+–
+
+Brokers
+
+ 
+
+S-4.29-i
+
+ 
+
+Schedule 4.31
+
+–
+
+Marketing of Production
+
+ 
+
+S-4.31-i
+
+ 
+
+Schedule 6.18
+
+–
+
+Deposit Accounts
+
+ 
+
+S-6.18-i
+
+ 
+
+ 
+
+ 
+
+ 
+
+LIST OF EXHIBITS
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+Exhibit A
+
+Form of Note
+
+ 
+
+A-i
+
+ 
+
+Exhibit B
+
+Form of Compliance Certificate
+
+ 
+
+B-i
+
+ 
+
+Exhibit C
+
+Form of Assignment Agreement
+
+ 
+
+C-i
+
+ 
+
+Exhibit D
+
+Form of Borrowing Request
+
+ 
+
+D-i
+
+ 
+
+Exhibit E
+
+ 
+
+Form of Cash Flow Sweep Worksheet
+
+ 
+
+E-I
+
+ 
+
+ 
+
+
+
+ - v -
+
+  
+
+ 
+
+ 
+
+
+
+TERM LOAN AGREEMENT
+
+ 
+
+This TERM LOAN AGREEMENT is made and entered into effective February 3, 2020, by
+and among ELYSIUM ENERGY, LLC, a Nevada limited liability company (“Elysium”),
+ELYSIUM ENERGY LA, LLC, a Louisiana limited liability company (“Elysium LA”),
+ELYSIUM ENERGY TX, LLC, a Texas limited liability company (“Elysium TX”), POINTE
+A LA HACHE, L.L.C., a Delaware limited liability company (“Pointe”), TURTLE
+BAYOU, L.L.C., a Delaware limited liability company (“Turtle”), POTASH, L.L.C.,
+a Delaware limited liability company (“Potash”), RAMOS FIELD, L.L.C., a Delaware
+limited liability company (“Ramos”), and each direct and indirect Subsidiary of
+the foregoing from time to time (each a “Borrower” and, collectively, the
+“Borrowers”), ELYSIUM ENERGY HOLDINGS, LLC, a Nevada limited liability company
+(“Holdings”), each lender that is a signatory hereto or becomes a party hereto
+as provided in Section 9.1 (individually, together with its successors and
+assigns, a “Lender” and, collectively, together with their respective successors
+and assigns, the “Lenders”), and 405 WOODBINE LLC, a Delaware limited liability
+company (“Woodbine”), as administrative agent for the Lenders (in such capacity,
+together with its successors in such capacity pursuant to the terms hereof, the
+“Agent”).
+
+ 
+
+W I T N E S S E T H:
+
+ 
+
+The Borrowers have requested, and the Lenders are willing to make the Term
+Loans, the proceeds of which will be used to: (a) fund the acquisition, pursuant
+to the Acquisition Agreement of certain mineral assets described therein (the
+“Acquisition”); and (b) to finance the acquisition contemplated under the
+Acquisition Agreement. The Lenders have indicated their willingness to extend
+credit upon the terms and subject to the conditions of this Agreement and the
+other Loan Documents.
+
+ 
+
+In consideration for the mutual covenants and agreements herein contained, the
+parties hereto, hereby agree as follows:
+
+ 
+
+ARTICLE I
+DEFINITIONS AND INTERPRETATION
+
+ 
+
+1.1 Terms Defined Above. As used in this Agreement, each of the terms “Agent,”
+“Woodbine,” “Borrower,” “Borrowers,” “Holdings,” “Elysium,” “Elysium LA,”
+“Elysium TX,” “Pointe,” “Turtle,” “Potash,” “Ramos” and “Lender,” “Lenders,”
+shall have the meaning assigned to such term hereinabove.
+
+ 
+
+1.2 Additional Defined Terms. As used in this Agreement, each of the following
+terms shall have the meaning assigned thereto in this Section 1.2 or in Sections
+referred to in this Section 1.2, unless the context otherwise requires:
+
+ 
+
+“AAA” shall mean the American Arbitration Association.
+
+ 
+
+“Acquisition Agreement” refers collectively to that certain Purchase and Sale
+Agreement dated October 10, 2019 by and among Elysium, as purchaser, and 5JAbor,
+LLC, Bass Petroleum, L.L.C., Bodel Holdings, LLC, Delbo Holdings, L.L.C., James
+III Investments, LLC, Jamsam Energy, L.L.C., Lake Boeuf Investments, LLC, Oakley
+Holdings, L.L.C., Plaquemines Holdings, L.L.C., collectively as sellers, as
+amended on or about December 23, 2019, and as it may be further amended,
+supplemented or otherwise modified with the consent of the Agent.
+
+ 
+
+
+
+ - 1 -
+
+  
+
+   
+
+“Acquisition Documents” means the Acquisition Agreement, the Acquisition Escrow
+Agreement and all other documented contemplated thereunder.
+
+ 
+
+“Acquisition Escrow Agreement” means that certain Escrow Agreement, dated as of
+October 10, 2019, by and among Elysium, as purchaser, and 5JAbor, LLC, Bass
+Petroleum, L.L.C., Bodel Holdings, LLC, Delbo Holdings, L.L.C., James III
+Investments, LLC, Jamsam Energy, L.L.C., Lake Boeuf Investments, LLC, Oakley
+Holdings, L.L.C., Plaquemines Holdings, L.L.C., collectively as sellers.
+
+ 
+
+“Acquisition Properties” shall mean the Oil and Gas Properties owned by one or
+more of the Borrowers as of the Effective Date.
+
+ 
+
+“Additional Amount” shall have the meaning set forth for such term in Section
+2.6.
+
+ 
+
+“Adjusted Strip Prices” shall mean the NYMEX average monthly settlement price
+for crude oil and natural gas future contracts for the remaining calendar year
+of the year of the report effective date and the subsequent yearly NYMEX average
+monthly settlement price for each of the succeeding four calendar years. After
+that time, the price will be held constant for the remaining life of the
+properties at the last yearly price calculated above. This price will be reduced
+by averaging over the preceding 12 months the monthly price difference between
+the NYMEX average monthly price and the actual monthly sales price at the sales
+delivery point. The price will be further reduced by any marketing expenses and
+historical basis differentials not already reflected in the sales price.
+
+ 
+
+“Administrator” shall have the meaning assigned to such term in Section 9.13.
+
+ 
+
+“Affiliate” shall mean, as to any Person, any other Person directly or
+indirectly, controlling, or under common control with, such Person and includes,
+as to the Borrowers, any Subsidiary of the Borrowers and any “affiliate” of the
+Borrowers within the meaning of Rule 12b-2 promulgated by the Securities and
+Exchange Commission pursuant to the Securities Exchange Act of 1934, with
+“control,” as used in this definition, meaning possession, directly or
+indirectly, of the power to direct or cause the direction of management,
+policies or action through ownership of voting securities, contract, voting
+trust, or membership in management or in the group appointing or electing
+management or otherwise through formal or informal arrangements or business
+relationships.
+
+ 
+
+“Agent Observer” shall mean any representative of the Agent designated by the
+Agent from time to time by written notice to the Borrowers.
+
+     
+
+ - 2 -
+
+  
+
+  
+
+“Agreement” shall mean this Term Loan Agreement, as it may be amended,
+supplemented, restated, amended and restated, or otherwise modified from time to
+time.
+
+ 
+
+“Anti-Terrorism Laws” shall mean any laws relating to terrorism or money
+laundering, including Executive Order No. 13224 and the USA Patriot Act.
+
+ 
+
+“Applicable Lending Office” shall mean, for each Lender, the lending office of
+such Lender (or an Affiliate of such Lender) designated on the signature pages
+hereof or in an Assignment Agreement or such other office of such Lender (or an
+Affiliate of such Lender) as such Lender may from time to time specify to the
+Agent and the Borrowers as the office by which its Percentage Share of the Term
+Loan is to be made and maintained.
+
+ 
+
+“Applicable Tax Percentage” shall mean the highest effective marginal combined
+rate of federal, state and local income taxes (taking into account the
+deductibility of state and local taxes for federal income tax purposes) to which
+any Person holding voting Equity Interests of any Borrowers would be subject in
+the relevant year of determination, taking into account only such Person’s share
+of income and deductions attributable to its equity ownership interest in such
+Borrowers.
+
+ 
+
+“Approved Hedge Counterparty” shall mean (a) Cargill, (b) BP or an Affiliate
+thereof, (c) any Lender or (d) a counterparty to a Commodity Hedge Agreement
+with the Borrowers approved by the Agent.
+
+ 
+
+“Arbitration Order” shall have the meaning assigned to such term in Section
+9.13.
+
+ 
+
+“Assignment Agreement” shall mean an Assignment Agreement in substantially the
+form of Exhibit C, with appropriate insertions or such other form as approved by
+the Agent.
+
+ 
+
+“Bankruptcy Code” shall mean the Federal Bankruptcy Reform Act of 1978 (11
+U.S.C. § 101, et seq.).
+
+ 
+
+“Benefited Lender” shall have the meaning assigned to such term in Section
+2.7(c).
+
+ 
+
+“Blocked Person” shall have the meaning assigned to such term in Section 4.23.
+
+ 
+
+“Borrowing Request” shall mean a written borrowing request in the form of
+Exhibit D, executed by a Responsible Officer of the Borrowers.
+
+  
+
+
+
+ - 3 -
+
+  
+
+  
+
+“BP” shall mean BP Energy Company, a Delaware corporation.
+
+ 
+
+“Business Day” shall mean any day other than a Saturday, Sunday, legal holiday
+for commercial banks under the laws of the State of New York, or any other day
+when banking is suspended in the State of New York.
+
+ 
+
+“Business Entity” shall mean a corporation, partnership, joint venture, limited
+liability company, joint stock association, business trust, or other business
+entity.
+
+ 
+
+“Capital Expenditures” shall have the meaning assigned to such term by GAAP.
+
+ 
+
+“Capital Lease” means, as applied to any Person, any lease of (or other
+arrangement conveying the right to use) any property (whether real, personal or
+mixed) by that Person as lessee (or the equivalent) that, in conformity with
+GAAP, is or should be accounted for as a capital lease on the balance sheet of
+that Person.
+
+ 
+
+“Cargill” shall mean Cargill, Incorporated, a Delaware corporation.
+
+ 
+
+“Change in Law” means the occurrence, after the date of this Agreement, of any
+of the following: (a) the adoption or taking effect of any law, rule, regulation
+or treaty, (b) any change in any law, rule, regulation or treaty or in the
+administration, interpretation, implementation or application thereof by any
+Governmental Authority or (c) the making or issuance of any request, rule,
+guideline or directive (whether or not having the force of law) by any
+Governmental Authority; provided that notwithstanding anything herein to the
+contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and
+all requests, rules, guidelines or directives thereunder or issued in connection
+therewith and (y) all requests, rules, guidelines or directives promulgated by
+the Bank for International Settlements, the Basel Committee on Banking
+Supervision (or any successor or similar authority) or the United States or
+foreign regulatory authorities, in each case pursuant to Basel III, shall in
+each case be deemed to be a “Change in Law”, regardless of the date enacted,
+adopted or issued.
+
+ 
+
+“Change of Control” shall mean (a) a Transfer of direct or indirect Equity
+Interests in Holdings, that when added to all prior Transfers, will result in a
+Transfer of thirty percent (30%) or more of the beneficial ownership interest of
+Holdings, or (b) Holdings shall fail to own one hundred percent (100%) of
+Elysium.
+
+ 
+
+“Citibank” shall mean Citibank, N.A.
+
+ 
+
+“Closing Date” shall mean the Effective Date of this Agreement.
+
+ 
+
+“Collateral” shall mean the Mortgaged Properties, all of the Equity Interests in
+the Borrowers and any other Property of any Person now or at any time used or
+intended as security for the payment or performance of all or any portion of the
+Obligations, and expressly including “as extracted collateral” as defined in the
+UCC or the Uniform Commercial Code of any other applicable state; provided that
+in no event shall “Collateral” include any Excluded Assets; provided further
+that proceeds of Excluded Assets (that do not otherwise constitute Excluded
+Assets) shall be Collateral.
+
+  
+
+
+
+ - 4 -
+
+  
+
+     
+
+“Commitment” shall mean, as to each Lender, its obligations to make its
+Percentage Share of the Term Loan and maintain its Percentage Share of the Loan
+Balance.
+
+ 
+
+“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et
+seq.).
+
+ 
+
+“Commodity Hedge Agreement” shall have the meaning assigned to such term in
+Section 1a(47) of the Commodity Exchange Act and, if not within the scope of
+such definition, shall include any crude oil, natural gas or other hydrocarbon
+floor, collar, cap, swap, price protection or hedge agreements, including any
+schedules, annexes and supplements thereto and trade confirmations thereunder.
+
+ 
+
+“Commonly Controlled Entity” shall mean any Person which is under common control
+with the Borrowers within the meaning of Section 4001 of ERISA.
+
+ 
+
+“Compliance Certificate” shall mean each certificate, substantially in the form
+attached hereto as Exhibit B, executed by the Financial Officer of the Borrowers
+and furnished to the Agent from time to time in accordance with the provisions
+of Section 5.2 or Section 5.3, as the case may be.
+
+ 
+
+“Connection Income Taxes” shall mean any net income or franchise Tax imposed in
+lieu of a net income Tax on a Person by a jurisdiction with which such Person
+has a present or former connection (other than a connection arising from such
+Person having executed, delivered, become a party to, performed its obligations
+under, received payments under, received or perfected a security interest under,
+engaged in any other transaction pursuant to or enforced any Loan Document, or
+sold or assigned an interest in any Term Loan or Loan Document).
+
+ 
+
+“Contingent Obligation” shall mean, as to any Person, any obligation of such
+Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
+dividends, or other obligations of any other Person (for purposes of this
+definition, a “primary obligation”) in any manner, whether directly or
+indirectly, including any obligation of such Person, regardless of whether such
+obligation is contingent, (a) to purchase any primary obligation or any Property
+constituting direct or indirect security therefor, (b) to advance or supply
+funds (i) for the purchase or payment of any primary obligation, or (ii) to
+maintain working or equity capital of any other Person in respect of any primary
+obligation, or otherwise to maintain the net worth or solvency of any other
+Person, (c) to purchase Property, securities or services primarily for the
+purpose of assuring the owner of any primary obligation of the ability of the
+Person primarily liable for such primary obligation to make payment thereof, or
+(d) otherwise to assure or hold harmless the owner of any such primary
+obligation against loss in respect thereof, with the amount of any Contingent
+Obligation being deemed to be equal to the stated or determinable amount of the
+primary obligation in respect of which such Contingent Obligation is made or, if
+not stated or determinable, the maximum reasonably anticipated liability in
+respect thereof as determined by such Person in good faith.
+
+    
+
+
+
+ - 5 -
+
+  
+
+      
+
+“Contract Operating Agreement” means that certain Contract Operating Agreement
+dated as of the date hereof, executed by Elysium, and Petrodome Operating
+Company, LLC, in form and substance satisfactory to the Agent in its sole
+discretion.
+
+ 
+
+“Contract Rate” shall mean a daily interest rate equal to the per annum interest
+rate equal to the Prime Rate for each relevant day plus seven and three-quarters
+percent (7.75%) converted to a daily rate on the basis of a year of 360 days and
+the rate so determined for each relevant day being applied on the basis of
+actual days elapsed (including the first day, but excluding the last day) during
+the period for which interest is payable at such rate, but in no event shall any
+such rate exceed, as to any Lender, the Highest Lawful Rate.
+
+ 
+
+“Contribution Percentage” shall mean, for each party obligated to make a payment
+due pursuant to the provisions of Section 9.20, the percentage obtained by
+dividing such party’s Obtained Benefit by the aggregate Obtained Benefits of the
+Borrowers.
+
+ 
+
+“Control” shall mean 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 (provided
+that individual natural persons who are members of a board of managers or board
+of directors of a Person shall not be deemed to Control such Person solely
+because of such membership). “Controlling” and “Controlled” have meanings
+correlative thereto.
+
+ 
+
+“Current Assets” shall mean all assets which would, in accordance with GAAP, be
+included as current assets on a consolidated balance sheet of the Borrowers as
+of the date of calculation, after deducting adequate reserves in each case in
+which a reserve is proper in accordance with GAAP, but excluding deferred tax
+assets, if any, and non-cash derivative current assets to the extent such
+positions have not been closed arising from Commodity Hedge Agreements, if any,
+otherwise included as an asset in preparing such a balance sheet.
+
+ 
+
+“Current Liabilities” shall mean the sum of (a) all liabilities which would, in
+accordance with GAAP, be included as current liabilities on a consolidated
+balance sheet of the Borrowers as of the date of calculation, (b) payments on
+other Liabilities pursuant to the provisions of Section 2.3(a) or Section 2.10,
+other than the payment of principal due on the Maturity Date and (c) payments on
+other Liabilities not prohibited by applicable provisions of this Agreement, if
+any, but excluding from the resulting amount (x) deferred tax obligations, if
+any, due within one year after the date of determination of such sum, (y)
+required principal payments in reduction of the Loan Balance and (z) non-cash
+derivative current liabilities arising from Commodity Hedge Agreements,
+including those arising from the application of ASC Topic 815, Derivatives and
+Hedging or ASC Topic 410, Asset Retirement and Environmental Obligations, to
+extent any of such items (x), (y) or (z) would otherwise be included as a
+liability in determining such sum.
+
+    
+
+ - 6 -
+
+  
+
+ 
+
+“Default” shall mean any event or occurrence, which with the lapse of time or
+the giving of notice or both would become an Event of Default.
+
+ 
+
+“Default Rate” shall mean an interest rate equal to the Contract Rate plus two
+percent (2%) per annum, but in no event shall such rate exceed the Highest
+Lawful Rate.
+
+ 
+
+“Development Plan” shall mean the plan for the development of the Oil and Gas
+Properties for the succeeding calendar year, the initial such plan being
+submitted to the Agent for approval, in its sole discretion.
+
+ 
+
+“Direction Letters” shall mean, collectively, letters, in form and substance
+reasonably satisfactory to the Agent, from the relevant Borrower to all
+purchasers of production directing to remit payment to the Lockbox by mail or to
+the Lockbox Account by wire transfer.
+
+ 
+
+“Dispute” shall have the meaning assigned to such term in Section 9.13.
+
+ 
+
+“Disqualified Equity Interest” shall mean any Equity Interest which, by its
+terms (or by the terms of any security or any other Equity Interest into which
+it is convertible or for which it is exchangeable) or upon the happening of any
+event or condition (a) matures or is mandatorily redeemable, pursuant to a
+sinking fund obligation or otherwise (except as a result of a customarily
+defined change of control or asset sale and only so long as any rights of the
+holders thereof after such change of control or asset sale shall be subject to
+the prior repayment in full of the Obligations that are accrued and payable),
+(b) provides for scheduled payments of dividends in cash, (c) is redeemable at
+the option of the holder thereof, in whole or in part, (d) is secured by any
+assets of the Borrowers or (e) is or becomes convertible into or exchangeable
+for Indebtedness or any other Disqualified Equity Interest, in whole or in part,
+in each case, on or prior to the date that is ninety one (91) days after the
+Maturity Date at the time of issuance.
+
+ 
+
+“Dollars” and “$” shall mean dollars in lawful currency of the United States of
+America.
+
+ 
+
+ - 7 -
+
+  
+
+   
+
+“Earnings Before Interest and Taxes” shall mean for any period the sum of (i)
+net income (or loss) of Borrowers and any Subsidiaries for such period
+(excluding any non-cash expenses such as non-cash hedging gains or losses,
+deferred income taxes, other itemized non-cash expenses, one-time non-cash gains
+and one-time non-cash losses and extraordinary gains), plus (ii) one-time
+expenses and extraordinary losses for which Agent has provided its prior written
+consent in its sole discretion plus (iii) all interest expense, fees and
+penalties associated with interest payments or debt payments of the Borrowers
+for such period, plus (iv) all charges against income of the Borrowers for such
+period for federal, state and local taxes, plus (v) any unrealized Swap losses
+which were deducted from net income.
+
+ 
+
+“EBITDA” shall mean for any period the sum of (i) Earnings Before Interest and
+Taxes for such period plus (ii) all non-cash items such as depreciation,
+depletion and amortization expenses, any full cost write-downs, and any other
+itemized non-cash expenses for such period (all without duplication).
+
+ 
+
+“Effective Date” shall mean the date on which the conditions specified in
+Section 3.1 are satisfied.
+
+ 
+
+“Eligible Contract Participant” shall have the meaning assigned to such term in
+the Commodity Exchange Act and the regulations thereunder.
+
+ 
+
+“Environmental Complaint” shall mean any written or oral complaint, order,
+directive, claim, citation, notice of environmental report or investigation, or
+other notice by any Governmental Authority or any other Person with respect to
+(a) air emissions, (b) spills, releases, or discharges to soils, any
+improvements located thereon, surface water, groundwater, or the sewer, septic,
+waste treatment, storage, or disposal systems servicing any Property of the
+Borrowers, (c) solid or liquid waste disposal, (d) the use, generation, storage,
+transportation, or disposal of any Hazardous Substance, or (e) other
+environmental, health, or safety matters affecting any Property of the Borrowers
+or the business conducted thereon.
+
+ 
+
+“Environmental Laws” shall mean (a) the following federal laws as they may be
+cited, referenced, and amended from time to time: the Clean Air Act, the Clean
+Water Act, the Safe Drinking Water Act, the Comprehensive Environmental
+Response, Compensation and Liability Act, the Endangered Species Act, the
+Resource Conservation and Recovery Act, the Hazardous Materials Transportation
+Act, the Occupational Safety and Health Act, the Oil Pollution Act, the Resource
+Conservation and Recovery Act, the Superfund Amendments and Reauthorization Act,
+and the Toxic Substances Control Act; (b) any and all equivalent environmental
+statutes of any state in which Property of any Borrower is situated, as they may
+be cited, referenced and amended from time to time; (c) any rules or regulations
+promulgated under or adopted pursuant to the above federal and state laws; and
+(d) any other equivalent federal, state, or local statute or any requirement,
+rule, regulation, code, ordinance, decree, permit, concession, grant, franchise,
+license, agreement or governmental restrictions or order adopted pursuant
+thereto, including all common law relating to pollution or the protection of
+health, safety or the environment or the release of any materials into the
+environment, including those related to the generation, transportation,
+treatment, storage, recycling, disposal, handling, or release of Hazardous
+Substances, air emissions, discharges to waste or public systems and health and
+safety matters.
+
+    
+
+ - 8 -
+
+  
+
+ 
+
+“Environmental Permit” means any permit, permit by rule, registration, license,
+approval, consent, exemption, variance or other authorization required under or
+issued pursuant to applicable Environmental Laws.
+
+ 
+
+“Equity Interests” shall mean shares of capital stock, partnership interests,
+membership interests in a limited liability company, beneficial interests in a
+trust or other equity ownership interests in a Person, and any warrants, options
+or other rights entitling the holder thereof to purchase or acquire any such
+Equity Interest.
+
+ 
+
+“ERISA” shall mean the Employee Retirement Income Security Act of 1974, and the
+regulations thereunder and interpretations thereof.
+
+ 
+
+“Event of Default” shall mean any of the events specified in Section 7.1.
+
+ 
+
+“Excess Cash Flow” shall mean, for any fiscal quarter of Borrowers, the excess,
+if any, of EBITDA for such fiscal quarter over the sum of the following (but
+without duplication of any amounts in separate clauses below and without
+duplication of any amounts deducted in determining net income): (i) cash
+interest expense, (ii) Permitted Tax Distributions and cash income tax expense,
+(iii) the amount of any Capital Expenditures and maintenance Capital
+Expenditures included in the Development Plan to the extent approved by Agent in
+writing that are: (A) paid in cash during such period, (B) incurred by not yet
+paid in cash during such period, or (C) otherwise approved for such calculation
+approved by Agent in writing, (iv) cash fees and expenses incurred in connection
+with this Agreement and the Loan Documents, (v) any scheduled payments,
+repayments and voluntary prepayments of the Term Loan made in such fiscal
+quarter and (vi) any noncash items that increased net income that have not been
+deducted in the determination of EBITDA.
+
+ 
+
+“Excess Cash Flow Application Date” shall have the meaning assigned to such term
+in Section 2.9(b).
+
+ 
+
+“Excess Payments” shall have the meaning assigned to such term in Section 9.20.
+
+ 
+
+“Excluded Assets” shall mean (i) any General Intangibles (as defined in the UCC)
+or other rights arising under any contracts, instruments, licenses or other
+documents to the extent the grant, assignment, transfer, creation, attachment,
+perfection or enforcement of a security interest would (x) constitute a
+violation of a valid and enforceable restriction in favor of a third party on
+such grant, assignment, transfer, creation, attachment, perfection or
+enforcement, unless and until any required consents shall have been obtained,
+which the applicable Borrower shall use commercially reasonable efforts to
+obtain or (y) give any other party to such contract, instrument, license or
+other document a valid and enforceable right to terminate its obligations
+thereunder or to take any other default remedy thereunder, unless and until any
+required consents shall have been obtained, which the applicable Borrower shall
+use commercially reasonable efforts to obtain; provided, that in any event any
+money or other amounts due or to become due under any such General Intangible,
+contract, agreement, instrument or license shall not be “Excluded Assets” and
+(ii) any property to the extent that the Borrowers are prohibited from granting
+a security interest in, pledge of, or lien upon any such property by reason of
+(x) an existing and enforceable negative pledge provision to the extent such
+provision does not violate the terms of this Agreement, unless and until any
+required consents shall have been obtained, which the applicable Borrower shall
+use commercially reasonable efforts to obtain or (y) applicable law or
+regulation to which such Borrowers are subject, except (in the case of either of
+the foregoing clauses (ii)(x) and (ii)(y)) to the extent such restriction,
+termination right or prohibition is rendered unenforceable or ineffective under
+Sections 9-406, 9-407, 9-408 or 9-409 of the UCC or other applicable law. For
+the avoidance of doubt, notwithstanding the foregoing, the “Excluded Assets”
+shall not include the Oil and Gas Properties or any seismic data, rights or
+related agreements of the Borrowers.
+
+    
+
+ - 9 -
+
+  
+
+  
+
+“Excluded Swap Obligation” shall mean, with respect to the Borrowers, any Swap
+Obligation if, and to the extent that, all or a portion of the grant by the
+relevant Borrower of a Lien to secure such Swap Obligation is or becomes illegal
+under the Commodity Exchange Act or any rule, regulation or order of the
+Commodity Futures Trading Commission (or the application or official
+interpretation of any thereof) by virtue of the relevant Borrower’s failure, for
+any reason, to constitute an Eligible Contract Participant at the time the grant
+of such Lien becomes effective with respect to such Swap Obligation and, if a
+Swap Obligation arises under a master agreement governing more than one Swap,
+such exclusion shall apply only to the portion of such Swap Obligation that is
+attributable to Commodity Hedge Agreements for which such Lien is or becomes
+illegal.
+
+ 
+
+“Excluded Taxes” means (a) with respect to any and all payments to the Agent,
+any Lender or any recipient of any payment to be made by or on account of any
+Obligation, net income taxes, branch profits taxes, franchises and excise taxes
+(to the extent imposed in lieu of net income taxes), and all interest, penalties
+and liabilities with respect thereto, imposed on the Agent or any Lender, and
+(b) with respect to Agent, any Lender or any other Person, any Taxes unrelated
+to the Obligations or this Agreement.
+
+ 
+
+“Executive Order No. 13224” shall mean Executive Order No. 13224 on Terrorist
+Financing, effective September 24, 2001, as the same has been, or shall
+hereafter be, renewed, extended, amended or replaced.
+
+ 
+
+“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded
+upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
+on overnight Federal funds transactions with members of the Federal Reserve
+System, as published by the Federal Reserve Bank 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 charged to the
+Agent on such day on such transactions as determined by the Agent.
+
+   
+
+ - 10 -
+
+  
+
+ 
+
+“Financial Officer” shall mean, for any Business Entity, the designated company
+representative, principal accounting officer, treasurer, manager or controller
+of such Business Entity.
+
+ 
+
+“Financial Statements” shall mean statements of the financial condition of the
+Borrowers on a consolidated basis, as at the point in time and for the period
+indicated, including all notes thereto, and consisting of at least a balance
+sheet and related statements of operations, shareholders, members’ or partners’
+equity and cash flows and, when required by applicable provisions of this
+Agreement, to be audited, accompanied by the unqualified certification of a
+nationally-recognized or regionally-recognized firm of independent certified
+public accountants or other independent certified public accountants reasonably
+acceptable to the Agent and footnotes to any of the foregoing, all of which,
+unless otherwise indicated, shall be prepared in accordance with GAAP
+consistently applied and in comparative form with respect to the corresponding
+period of the preceding fiscal year.
+
+ 
+
+“Foreign Lender” shall have the meaning assigned to such term in Section 2.6(f).
+
+ 
+
+“GAAP” shall mean generally accepted accounting principles established by the
+Financial Accounting Standards Board or the American Institute of Certified
+Public Accountants and in effect in the United States of America from time to
+time.
+
+ 
+
+“General and Administrative Costs” means, for any period, the aggregate of all
+general and administrative costs and expenses incurred by the Borrowers,
+including, without limitation, costs incurred for overhead (including each
+Borrower’s working interest share of overhead charges owed to an Affiliate of
+such Borrower under applicable joint operating agreements), costs of payroll and
+benefits for corporate staff, costs of maintaining a headquarters, costs of
+managing production and development operations, rent expense, costs of supplies,
+travel and insurance, IT expenses, accounting and other fees for professional
+services, including legal, consulting, engineering and broker related fees and
+expenses, but excluding (i) non-recurring items acceptable to the Agent, (ii)
+expenses and costs of other, third-party working interest owners of Oil and Gas
+Properties operated by the Borrowers and each Borrower’s working interest share
+of overhead owed to a designated operator (that is not an Affiliate of the
+Borrowers) pursuant to applicable joint operating agreements, (iii) payment of
+reimbursement of any accounting, engineering and legal fees of the Agent’s and
+any Lender pursuant to the terms of the Loan Documents, (iv) payment of the
+annual administration fee for the Agent pursuant to the Agent fee letter, and
+(v) expenses and costs incurred in administering the Operating Accounts, in an
+amount not to exceed $5,000 in the aggregate per fiscal year.
+
+    
+
+ - 11 -
+
+  
+
+ 
+
+“Governmental Authority” shall mean any nation, country, commonwealth,
+territory, government, state, county, parish, municipality, or other political
+subdivision and any entity exercising executive, legislative, judicial,
+regulatory, or administrative functions of or pertaining to government.
+
+ 
+
+“Hazardous Substances” shall mean any substance regulated or as to which
+liability might arise under any applicable Environmental Law including;
+flammables, explosives, radioactive materials, hazardous wastes, asbestos, or
+any material containing asbestos, polychlorinated biphenyls (PCBs), radon,
+infections or medical wastes, toxic substances or related materials, petroleum,
+petroleum products, petroleum substances, associated oil or natural gas
+exploration, production, and development wastes and any components, fractions,
+or derivatives thereof, or any chemical, compound, material, product, byproduct,
+substance or waste, defined as “hazardous substances,” “hazardous materials,”
+“hazardous wastes,” “solid waste,” “toxic water,” “extremely hazardous
+substance,” or “toxic substances,” “contaminant,” “pollutant,” or words of
+similar meaning or import found in the Comprehensive Environmental Response,
+Compensation and Liability Act, the Superfund Amendments and Reauthorization
+Act, the Hazardous Materials Transportation Act, the Resource Conservation and
+Recovery Act, the Toxic Substances Control Act, or any other Requirement of Law.
+
+ 
+
+“Highest Lawful Rate” shall mean, with respect to any Lender, the maximum
+non-usurious interest rate, if any (or, if the context so requires, an amount
+calculated at such rate), that at any time or from time to time may be
+contracted for, taken, reserved, charged or received under laws applicable to
+such Lender, as such laws are presently in effect or, to the extent allowed by
+applicable law, as such laws may hereafter be in effect and which allow a higher
+maximum non-usurious interest rate than such laws now allow.
+
+ 
+
+“Hydrocarbon Interests” shall mean all rights, options, titles, interests and
+estates now or hereafter acquired in and to oil and gas leases, oil, gas and
+mineral leases, or other liquid or gaseous hydrocarbon leases, mineral fee
+interests, overriding royalty and royalty interests, net profit interests and
+production payment interests, including any reserved or residual interests of
+whatever nature.
+
+ 
+
+“Hydrocarbons” shall mean crude oil, bitumen, synthetic crude oil, petroleum,
+gas, casinghead gas, drip gasoline, natural gasoline, natural gas liquids,
+condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all
+products refined or separated therefrom, and all related hydrocarbons and any
+and all other substances whether liquid, solid or gaseous, whether hydrocarbons
+or not, produced or producible in association with any of the foregoing,
+including hydrogen sulphide and sulphur.
+
+   
+
+ - 12 -
+
+  
+
+ 
+
+“Indebtedness” shall mean, as to any Person, without duplication, (a) all
+liabilities (excluding capital, surplus, reserves for deferred income taxes,
+deferred compensation liabilities and other deferred liabilities and credits)
+which in accordance with GAAP would be included in determining total liabilities
+as shown on the liability side of a balance sheet, (b) all obligations of such
+Person evidenced by bonds, debentures, promissory notes or similar evidences of
+indebtedness, (c) all other indebtedness of such Person for borrowed money, (d)
+all obligations of others, to the extent any such obligation is secured by a
+Lien on the assets of such Person (whether or not such Person has assumed or
+become liable for the obligation secured by such Lien), (e) the principal
+component of all direct or contingent obligations of such Person under letters
+of credit, banker’s acceptances and similar instruments and (f) net obligations
+of such Person payable with respect to any Commodity Hedge Agreements, except
+for ordinary course of business settlement payments.
+
+ 
+
+“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.
+
+ 
+
+“Indemnitee” has the meaning assigned to such term in Section 5.20.
+
+ 
+
+“Independent Reserve Engineer” means Laroche Petroleum Consultants or such other
+petroleum engineering firm approved in writing by the Agent.
+
+ 
+
+“Initial Reserve Report” shall mean a report prepared by the Reserve Engineer
+covering the Reserves attributable to the interest of one or more of the
+Borrowers in Oil and Gas Properties in form and substance satisfactory to the
+Agent and the Independent Reserve Engineer in their sole discretion.
+
+ 
+
+“Insolvency Proceeding” shall mean application (whether voluntary or instituted
+by another Person) for or the consent to the appointment of a receiver, trustee,
+conservator, custodian, or liquidator of any Person or of all or a substantial
+part of the Property of such Person, or the filing of a petition (whether
+voluntary or instituted by another Person) commencing a case under Title 11 of
+the United States of America Code, seeking liquidation, reorganization, or
+rearrangement or taking advantage of any bankruptcy, insolvency, debtor’s
+relief, or other similar law of the United States of America, the State of
+Delaware, or any other jurisdiction.
+
+ 
+
+“Intellectual Property” shall mean patents, patent applications, trademarks,
+tradenames, copyrights, technology, know‑how, and processes.
+
+ 
+
+“Interest Payment Date” shall mean, with respect to any Term Loan, the first
+Business Day of each calendar month.
+
+   
+
+ - 13 -
+
+  
+
+ 
+
+“Investment” in any Person shall mean any stock, bond, note or other evidence of
+Indebtedness, or any other security (other than current trade and customer
+accounts) of, investment or partnership interest in or loan to, such Person.
+
+ 
+
+“Liabilities” shall mean, for the Borrowers on a consolidated basis, all
+Indebtedness and other liabilities and obligations, whether matured or
+unmatured, liquidated or unliquidated, primary or secondary, direct or indirect
+or absolute, fixed or contingent, and whether or not required to be considered
+for purposes of compliance with GAAP.
+
+ 
+
+“Lien” shall mean any interest in Property securing an obligation owed to, or a
+claim by, a Person other than the owner of such Property, whether such interest
+is based on common law, statute, or contract, and including, but not limited to,
+the lien or security interest arising from a mortgage, ship mortgage,
+encumbrance, pledge, security agreement, conditional sale or trust receipt, or a
+lease, consignment, or bailment for security purposes (other than true leases or
+true consignments), liens of mechanics, materialmen, and artisans, maritime
+liens and reservations, exceptions, encroachments, easements, rights of way,
+covenants, conditions, restrictions, leases, and other title exceptions and
+encumbrances affecting Property which secure an obligation owed to, or a claim
+by, a Person other than the owner of such Property (for the purpose of this
+Agreement, the Borrowers shall be deemed to be the owner of any Property which
+it has acquired or holds subject to a conditional sale agreement, financing
+lease, or other arrangement pursuant to which title to the Property has been
+retained by or vested in some other Person for security purposes).
+
+ 
+
+“Limitation Period” shall mean, with respect to any Lender, any period while any
+amount remains owing on the Note payable to such Lender and interest on such
+amount, calculated at the Contract Rate, plus any fees or other sums payable to
+such Lender under any Loan Document and deemed to be interest under applicable
+law, would exceed the amount of interest which would accrue at the Highest
+Lawful Rate.
+
+ 
+
+“Loan Balance” shall mean, at any point in time, the aggregate outstanding
+principal balance of the Notes at such time.
+
+ 
+
+“Loan Documents” shall mean this Agreement, the Notes, the Security Documents,
+the Subordination Agreement and all other documents and instruments now or
+hereafter delivered pursuant to the terms of or in connection with any of the
+foregoing, and all renewals and extensions of, amendments and supplements to,
+and restatements of, any or all of the foregoing from time to time in effect.
+
+ 
+
+“Lockbox” shall mean the Post Office Box maintained with or through Citibank.
+
+   
+
+ - 14 -
+
+  
+
+  
+
+“Lockbox Account” shall mean the deposit account maintained by the Agent with
+Citibank and associated with the Lockbox.
+
+ 
+
+“Material Adverse Effect” shall mean (a) any adverse effect on the business,
+operations, properties, liabilities or financial condition of the Borrowers, on
+a consolidated basis, which increases, in any material respect, the risk that
+any of the Obligations will not be repaid as and when due, (b) any material and
+adverse effect upon the Collateral, including any material and adverse effect
+upon the value or impairment of any Borrowers’ or any other Person’s ownership
+of any material portion of the Collateral, (c) any material adverse effect on
+the validity or enforceability of any Loan Document or (d) any material adverse
+effect on the rights or remedies of the Agent or any Lender under a Loan
+Document.
+
+ 
+
+“Material Contract” means, collectively, (a) any written contract or agreement
+requiring payments to be made or providing for payments to be received, in each
+case in excess of $1,000,000 individually or, if involving a series of related
+contracts or agreements, in the aggregate during any 12-month period, (b) any
+other written contract or other arrangement to which any Borrower is a party
+(other than the Loan Documents) for which breach, nonperformance, cancellation
+or failure to renew could reasonably be expected to have a Material Adverse
+Effect and (c) any written agreement or instrument evidencing or governing
+Indebtedness (including, for the avoidance of doubt, any Commodity Hedge
+Agreement, but excluding the Loan Documents) with a principal amount or notional
+amount in excess of $500,000; provided that any bid, surety, performance,
+appeal, regulatory or similar bonds obtained in the ordinary course of business,
+shall not be considered a Material Contract.
+
+ 
+
+“Maturity Date” shall mean the earlier to occur of (i) the date that is thirty
+(30) months after the Effective Date; provided, that if such date is not a
+Business Day it shall be the succeeding Business Day or (ii) the date the Term
+Loan is accelerated pursuant to this Agreement.
+
+ 
+
+“Minimum Required Commodity Hedge Agreements” shall mean Commodity Hedge
+Agreements between the Borrower and one or more Approved Hedge Counterparties
+covering not less than (i) seventy-five percent (75%) of each Borrower’s next
+twelve (12) months of forward projected oil and gas production based on PDP set
+forth in the most recent Reserve Report, (ii) sixty percent (60%) of each
+Borrower’s thirteenth (13th) month through twenty-fourth (24th) month forward
+projected oil and gas production based on PDP set forth in the most recent
+Reserve Report, and (iii) fifty percent (50%) of each Borrower’s twenty-fifth
+(25th) month through thirty-sixth (36th) month forward projected oil and gas
+production based on PDP set forth in the most recent Reserve Report.
+
+ 
+
+“Mortgaged Properties” shall mean all Oil and Gas Properties of the Borrowers
+subject to a perfected first priority Lien (subject only to Permitted Liens) in
+favor of the Agent, as security for the Obligations.
+
+   
+
+ - 15 -
+
+  
+
+  
+
+“Mortgages” shall mean, collectively, the mortgages executed by the Borrowers to
+the Agent for the benefit of the Lenders providing a lien on all Real Property
+and Oil and Gas Properties owned or leased by the Borrowers.
+
+ 
+
+“Notes” shall mean, collectively, the promissory note or notes executed by the
+Borrowers and payable to each Lender in the face amount of the Percentage Share
+of such Lender of the amount of the Term Loan in the form attached hereto as
+Exhibit A with all blanks in such form completed appropriately, together with
+all renewals, extensions for any period, increases and rearrangements thereof.
+
+ 
+
+“Notice of Termination” has the meaning assigned to such term in Section 2.14.
+
+ 
+
+“NYMEX” shall mean the New York Mercantile Exchange.
+
+ 
+
+“Obligations” shall mean, without duplication of the same amount in more than
+one category, (a) all Indebtedness of the Borrowers evidenced by the Notes, (b)
+all other obligations and liabilities of the Borrowers to the Agent or the
+Lenders, now existing or hereafter incurred, under, arising out of or in
+connection with any other Loan Document, and (c) amounts owing or to be owing by
+any Borrowers under any Commodity Hedge Agreements between such Borrowers and
+any Approved Hedge Counterparty (which it is agreed shall rank pari passu with
+all other items listed in this definition), except Excluded Swap Obligations,
+and to the extent that any of the foregoing includes or refers to the payment of
+amounts deemed or constituting interest, only so much thereof as shall have
+accrued, been earned and which remains unpaid at each relevant time of
+determination.
+
+ 
+
+“Obtained Benefit” shall mean, with respect to any Borrower, the aggregate
+amount of benefits, both direct and indirect, obtained by the relevant Borrower
+from the extension of credit to the Borrowers under this Agreement and not
+repaid by the relevant Borrower.
+
+ 
+
+“OFAC” shall mean the Office of Foreign Assets Control of the United States of
+America Department of the Treasury, or any other any successor Governmental
+Authority.
+
+ 
+
+“Oil and Gas Properties” shall mean (a) Hydrocarbon Interests; (b) the
+Properties now or hereafter pooled or unitized with Hydrocarbon Interests; (c)
+all presently existing or future unitization, pooling agreements and
+declarations of pooled units and the units created thereby (including without
+limitation all units created under orders, regulations and rules of any
+Governmental Authority) which may affect all or any portion of the Hydrocarbon
+Interests; (d) all operating agreements, contracts and other agreements,
+including production sharing contracts and agreements, which relate to any of
+the Hydrocarbon Interests or the production, sale, purchase, exchange or
+processing of Hydrocarbons from or attributable to such Hydrocarbon Interests;
+(e) all Hydrocarbons in and under and which may be produced and saved or
+attributable to the Hydrocarbon Interests, including all oil in tanks, and all
+rents, issues, profits, proceeds, products, revenues and other incomes from or
+attributable to the Hydrocarbon Interests; (f) all tenements, hereditaments,
+appurtenances and Properties in any manner appertaining, belonging, affixed or
+incidental to the Hydrocarbon Interests and (g) all Properties, rights, titles,
+interests and estates described or referred to above, including any and all
+Property, real or personal, now owned or hereafter acquired and situated upon,
+used, held for use or useful in connection with the operating, working or
+development of any of such Hydrocarbon Interests or Property (excluding drilling
+rigs, automotive equipment, rental equipment or other personal Property which
+may be on such premises for the purpose of drilling a well or for other similar
+temporary uses) and including any and all oil wells, gas wells, injection wells
+or other wells, buildings, structures, fuel separators, liquid extraction
+plants, plant compressors, pumps, pumping units, field gathering systems, tanks
+and tank batteries, fixtures, valves, fittings, machinery and parts, engines,
+boilers, meters, apparatus, equipment, appliances, tools, implements, cables,
+wires, towers, casing, tubing and rods, surface leases, rights-of-way, easements
+and servitudes together with all additions, substitutions, replacements,
+accessions and attachments to any and all of the foregoing.
+
+  
+
+ - 16 -
+
+  
+
+ 
+
+“Operating Accounts” shall mean, collectively, one or more separate deposit
+accounts, including the deposit accounts maintained by one or more of the
+Borrowers with Bank of America, N.A., as reflected on Schedule 6.18, each of
+which deposit accounts shall be subject to a deposit account control agreement
+with shifting control among the Borrowers, Bank of America, N.A. and the Agent
+(each, a “Deposit Account Control Agreement”).
+
+ 
+
+“Operator Event of Default” means (a) a default or event of default by Petrodome
+Energy, LLC under any document evidencing Indebtedness, (b) Petrodome Energy,
+LLC shall (i) apply for or consent to the appointment of a receiver, trustee or
+liquidator of it or all or a substantial part of its assets, (ii) file a
+voluntary petition commencing an Insolvency Proceeding, (iii) make a general
+assignment for the benefit of creditors of all or substantially all of its
+assets, (iv) be unable, or admit in writing its inability, to pay its debts
+generally as they become due or (v) file an answer admitting the material
+allegations of a petition filed against it in any Insolvency Proceeding, or (c)
+Viking shall cease to own 100% of the Equity Interests in Petrodome Energy, LLC.
+
+ 
+
+“Other Taxes” shall mean any and all present or future stamp or documentary
+taxes or any other excise or property taxes, charges or similar levies arising
+from any payment made under any Loan Document or from the execution, delivery or
+enforcement of, or otherwise with respect to, any Loan Document.
+
+ 
+
+“PDP” shall mean Proved Developed Producing Reserves.
+
+ 
+
+“Percentage Share” shall mean, as to each Lender, the applicable percentage set
+forth on Schedule 1.2B.
+
+ 
+
+“Permitted Liens” shall mean (a) Liens for taxes, assessments, or other
+governmental charges or levies not yet due or which (if foreclosure, distraint,
+sale, or other similar proceedings shall not have been initiated) are being
+contested in good faith by appropriate proceedings, and such reserve as may be
+required by GAAP shall have been made therefor, (b) Liens in connection with
+workers’ compensation, unemployment insurance or other social security (other
+than Liens created by Section 4068 of ERISA), old-age pension, employee
+benefits, or public liability obligations which are not yet due or which are
+being contested in good faith by appropriate proceedings, if such reserve as may
+be required by GAAP shall have been made therefor, (c) Liens in favor of
+vendors, carriers, warehousemen, repairmen, mechanics, workmen, materialmen,
+constructors, laborers, landlords or similar Liens arising by operation of law
+in the ordinary course of business in respect of obligations that are not yet
+due or which are being contested in good faith by appropriate proceedings, if
+such reserve as may be required by GAAP shall have been made therefor, (d) Liens
+securing leases of equipment, provided that, as to any particular lease, the
+Lien covers only the relevant leased equipment and secures only amounts which
+are not yet due and payable under the relevant lease or are being contested in
+good faith by appropriate proceedings and such reserve as required by GAAP shall
+have been made therefor, (e) Liens in favor of the Agent securing the
+Obligations and other Liens expressly permitted hereunder or in the Security
+Documents, (f) Liens securing equipment financed with Indebtedness or other
+purchase money financings pursuant to Section 6.1(f), and (g) Liens on cash and
+securities and deposits securing the Borrowers’ reimbursement obligations with
+respect to bid, surety, performance, appeal, regulatory or similar bonds
+obtained in the ordinary course of business.
+
+   
+
+ - 17 -
+
+  
+
+  
+
+“Permitted Tax Distributions” shall mean, with respect to any Borrower, (A) so
+long as it is taxable as a partnership for United States federal income tax
+purposes, tax distributions to the partners or members of the relevant Borrower
+in an aggregate amount that does not exceed, with respect to any period, an
+amount equal to (a) the product of (i) the Applicable Tax Percentage multiplied
+by (ii) such Borrower’s federal taxable income, minus (b) to the extent not
+previously taken into account, any income tax benefit attributable to such
+Borrower which could be utilized by its partners or members, in the current or
+any prior year, or portion thereof, from and after the Closing Date (including
+any tax losses or tax credits), computed at the Applicable Tax Percentage of the
+year that such benefit is taken into account for purposes of this computation;
+provided that the computation of distributions under this definition shall also
+take into account (x) the deductibility of state and local taxes for federal
+income tax purposes and (y) any difference in the Applicable Tax Percentage
+resulting from the nature of the taxable income (such as capital gain as opposed
+to ordinary income, if applicable) or (B) for any fiscal year (or portion
+thereof) for which a Borrower is disregarded as an entity separate from a
+corporate parent for U.S. federal income tax purposes, an aggregate amount not
+to exceed the amount of such Taxes that such Borrower and/or its applicable
+Subsidiaries would have paid had such Borrower and/or such Subsidiaries, as
+applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate
+group); provided, that Permitted Tax Distributions in respect of any fiscal year
+may be paid throughout the fiscal year to cover estimated tax payments as
+reasonably determined by the Borrowers.
+
+ 
+
+“Person” shall mean an individual, corporation, partnership, limited liability
+company, trust, unincorporated organization, government, any agency or political
+subdivision of any government or any other form of entity.
+
+ 
+
+“Plan” shall mean, at any time, any employee benefit plan which is covered by
+Title IV of ERISA and in respect of which the Borrowers, or any Commonly
+Controlled Entity is (or, if such plan were terminated at such time, would under
+Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5)
+of ERISA.
+
+ 
+
+“Prepayment Fee” shall mean a fee as calculated below to compensate Lenders for
+liquidated damages sustained by each Lender as a result of the prepayment, and
+the Borrowers agree that such amount is reasonable under the circumstances
+currently existing. The Prepayment Fee shall be the product of (a) the amount of
+the prepayment, multiplied by (b) the applicable prepayment percentage set forth
+below as of the date of such prepayment:
+
+ 
+
+Repayment Date
+(on or between)
+
+ 
+
+Prepayment Percentage
+
+Closing Date to February 3, 2021
+
+ 
+
+5%
+
+February 3, 2021 to February 3, 2022
+
+ 
+
+3%
+
+February 3, 2022 to the last day of the calendar month preceding the Maturity
+Date
+
+ 
+
+0%
+
+ 
+
+“Prime Rate” means the prime rate published by The Wall Street Journal’s “Money
+Rate” or similar table. If multiple prime rates are quoted in the table, then
+the highest prime rate will be the Prime Rate. In the event that the prime rate
+is no longer published by The Wall Street Journal in the “Money Rates” or
+similar table, then the Agent may select an alternative published index based
+upon comparable information as a substitute Prime Rate. Upon the selection of a
+substitute Prime Rate, the applicable interest rate shall thereafter vary in
+relation to the substitute index. Notwithstanding the foregoing, in no event
+shall the Prime Rate ever be less than one and four and three-quarters percent
+(4.75%).
+
+  
+
+ - 18 -
+
+  
+
+ 
+
+“Principal Office” shall mean the principal office of the Agent in New York, New
+York, presently located at 405 Lexington Avenue, 59th Floor, New York, New York
+10174 or such other location as Agent may designate from time to time.
+
+ 
+
+“Property” shall mean any interest in any kind of property or asset, whether
+real, personal or mixed, tangible or intangible.
+
+ 
+
+“Proved Developed Producing Reserves” or “PDP Reserves” has the meaning assigned
+to such term in the SPE/SEC Standards.
+
+ 
+
+“Proved Reserves” has the meaning assigned to such term in the SPE/SEC
+Standards.
+
+ 
+
+“Proved Undeveloped Reserves” has the meaning assigned such term in the SPE/SEC
+Standards.
+
+ 
+
+“PUD” shall mean Proved Undeveloped Reserves.
+
+ 
+
+“PV-10” shall mean present value discounted at ten percent (10%).
+
+ 
+
+“Qualified ECP Borrower” shall mean, in respect of any Swap Obligation, each
+Borrower that has total assets exceeding $10,000,000 at the time the relevant
+grant of any Lien becomes effective with respect to such Swap Obligation or such
+other Person as constitutes an Eligible Contract Participant and can cause
+another Person to qualify as an Eligible Contract Participant at such time by
+entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity
+Exchange Act.
+
+ 
+
+“Real Property” shall mean all of each Borrower’s right, title and interest in
+and to the owned and leased real property (other than the Oil and Gas
+Properties), including the fixtures and improvements thereon, as of the date
+hereof or which is hereafter owned or leased by any Borrower.
+
+ 
+
+“Register” has the meaning assigned to it in Section 9.1(b).
+
+ 
+
+“Regulatory Change” shall mean, with respect to any Lender, the passage,
+adoption, institution, or amendment of any federal, state, local, or foreign
+Requirement of Law, or any interpretation, directive, or request (whether or not
+having the force of law) of any Governmental Authority or monetary authority
+charged with the enforcement, interpretation, or administration thereof,
+occurring after the Closing Date and applying to a class of lenders including
+such Lender; 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,
+shall in each case be deemed to be a “Regulatory Change”, regardless of the date
+enacted, adopted or issued 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 “Regulatory Change”, regardless of the date enacted,
+adopted or issued.
+
+   
+
+ - 19 -
+
+  
+
+ 
+
+“Release of Hazardous Substances” shall mean any emission, spill, release,
+disposal, or discharge, except in accordance with a valid permit, license,
+certificate, or approval of the relevant Governmental Authority, of any
+Hazardous Substance into or upon (a) the air, (b) soils or any improvements
+located thereon, (c) surface water or groundwater, or (d) the sewer or septic
+system, or the waste treatment, storage, or disposal system servicing any
+Property of the Borrowers.
+
+ 
+
+“Replacement Lenders” has the meaning assigned to such term in Section 2.14.
+
+ 
+
+“Required Lenders” shall mean Lenders whose Percentage Shares total at least
+fifty one percent (51%).
+
+ 
+
+“Requirement of Law” shall mean, as to any Person, the certificate or articles
+of incorporation and by-laws, the certificate or articles of organization and
+regulations, operating agreement or limited liability company agreement, the
+agreement of limited partnership or other organizational or governing documents
+of such Person, and any applicable law, treaty, ordinance, order, judgment,
+rule, decree, regulation or determination of an arbitrator, court or other
+Governmental Authority, including rules, regulations, orders and requirements
+for permits, licenses, registrations, approvals or authorizations, in each case
+as such now exist or may be hereafter amended and are applicable to or binding
+upon such Person or any of its Property or to which such Person or any of its
+Property is subject.
+
+ 
+
+“Reserve Engineer” means Netherland Sewell and Associates, Inc. or such other
+petroleum engineering firm approved in writing by the Agent.
+
+ 
+
+“Reserve Report” shall mean the Initial Reserve Report, and any subsequent
+report prepared by the Reserve Engineer (and in consultation with the
+Independent Reserve Engineer), substantially in the form of and utilizing the
+same data set as the Initial Reserve Report covering the Reserves attributable
+to the interests of one or more of the Borrowers in Oil and Gas Properties.
+
+ 
+
+“Reserves” shall mean volumes of Hydrocarbons.
+
+ 
+
+“Responsible Officer” shall mean, as to any Business Entity, its President, any
+of its Vice Presidents, its Financial Officer or any other Person duly
+authorized, in accordance with the applicable organizational documents, bylaws,
+regulations or resolutions, to act on behalf of such Business Entity.
+
+ 
+
+“SEC” shall mean the Securities and Exchange Commission or any successor
+Governmental Authority.
+
+   
+
+ - 20 -
+
+  
+
+ 
+
+“Security Documents” shall mean, collectively, (a) the security documents
+executed and delivered by the Borrowers securing the Term Loan, including but
+not limited to any deed of trust, mortgage, pledge agreement, security
+agreement, collateral agreement or Deposit Account Control Agreement and (b)
+other documents and instruments at any time executed as security for all or any
+portion of the Obligations, as such instruments may be amended, supplemented,
+restated or otherwise modified from time to time (for avoidance of doubt,
+including each Deposit Account Control Agreement with Bank of America, N.A.).
+
+ 
+
+“Solvent” shall mean, with respect to any Person on any date of determination
+(after giving effect to the making of the Term Loan and the application of the
+proceeds thereof and to the provisions of Section 9.20, if applicable), that on
+such date (a) the fair value of the assets of such Person is not less than the
+total amount of liabilities, including Contingent Obligations, of such Person,
+(b) the present fair saleable 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 is able
+to pay its debts and liabilities, Contingent Obligations and other commitments
+as they mature in the ordinary course of business and (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 assets would constitute an unreasonably
+small capital. For purposes of this definition, the amount of Contingent
+Obligations 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.
+
+ 
+
+“SPE Definitions” shall mean, with respect to any term, the definition thereof
+as adopted by the Board of Directors of the Society of Petroleum Engineers
+(SPE).
+
+ 
+
+“SPE/SEC Standards” shall mean the more restrictive of the standards and/or
+definitions, as determined by the Agent, set forth by (a) the SEC and (b) the
+Society of Petroleum Engineers or the SPE Definitions.
+
+ 
+
+“Subordinated Indebtedness” shall mean any sum of money and/or property, whether
+now owing or otherwise, permitted by the Agent pursuant to the terms hereof,
+owed by one or more of the Borrowers to: (i) any other Borrower, (ii) any
+manager, member, general partner, limited partner or officer of any Borrower,
+(iii) Viking, and (iv) any other party directly or indirectly related to any
+Borrower.
+
+ 
+
+“Subordination Agreement” means that certain Operator Subordination Agreement
+dated as of the date hereof, by and among _______, the Agent and Petrodome
+Operating Company, LLC, in form and substance satisfactory to the Agent in its
+sole discretion.
+
+  
+
+ - 21 -
+
+  
+
+ 
+
+“Subsidiary” shall mean, as to any Person, any Business Entity of which shares
+of stock or other Equity Interests having ordinary voting power (other than
+stock having such power only by reason of the happening of a contingency) to
+elect a majority of the board of directors or other governing body or managers
+of such Business Entity are at the time owned, or the management of which is
+otherwise controlled, directly or indirectly through one or more intermediaries,
+or both, by such Person.
+
+ 
+
+“Superfund Site” shall mean those sites listed on the Environmental Protection
+Agency National Priority List and eligible for remedial action or any comparable
+state registries or list in any state of the United States of America.
+
+ 
+
+“Swap” has the meaning assigned to such term in Section 1a(47) of the Commodity
+Exchange Act.
+
+ 
+
+“Swap Obligation” shall mean, with respect to the Borrowers, any obligation to
+pay or perform under any agreement, contract or transaction that constitutes a
+Swap.
+
+ 
+
+“Tax Related Person” means any Person (including a beneficial owner of an
+interest in a pass-through entity) who is required to include in income amounts
+realized (whether or not distributed) by the Agent, a Lender or any Tax Related
+Person of any of the foregoing.
+
+ 
+
+“Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
+fees, deductions, charges or withholdings imposed by any Governmental Authority.
+
+ 
+
+“Term Loan” shall mean the loan made by the Lenders to or for the benefit of the
+Borrowers pursuant to this Agreement.
+
+ 
+
+“Terminated Lender” has the meaning assigned to such term in Section 2.14.
+
+ 
+
+“Termination Date” has the meaning assigned to such term in Section 2.14.
+
+ 
+
+“Total Proved Reserves” shall be as defined in the SPE/SEC Standards.
+
+ 
+
+“Total Secured Debt” shall mean all Indebtedness of the Borrowers that is
+secured by a Lien on the property or assets of the Borrowers.
+
+ 
+
+“Transfer” shall mean the issuance, sale, assignment, alienation, conveyance,
+divestment, transfer, disposition (including through a plan of division),
+hypothecation, mortgage or encumbrance of any ownership interest in Elysium or
+in any entity having an ownership interest in Elysium, whether direct or
+indirect (or entering into any agreement or contract to do any of the foregoing
+that is not conditioned on compliance with the terms of the Loan Documents), or
+undertaking, suffering or causing any of the foregoing to occur voluntarily,
+involuntarily or by operation of law.
+
+   
+
+ - 22 -
+
+  
+
+ 
+
+“Transferee” shall mean any Person to which any Lender has sold, assigned,
+transferred or granted a participation in any of the Obligations, as authorized
+pursuant to the provisions of Section 9.1, and any Person acquiring, by
+purchase, assignment, transfer or participation, from any such purchaser,
+assignee, transferee or participant, any part of such Obligations.
+
+ 
+
+“UCC” shall mean the Uniform Commercial Code as from time to time in effect in
+the State of New York.
+
+ 
+
+“Unrestricted Cash” shall mean, at any time, (a) all cash of the Borrowers that
+meets each of the following criteria: such cash is (i) denominated in Dollars,
+(ii) not subject to any Lien except Liens to secure the Obligations, (iii) not
+subject to any restriction as to its use, (iv) in the United States in an
+Operating Account, and (v) not being held for use for any anticipated
+investment, payment or other specific purpose, less (b) one hundred percent
+(100%) of hedging liabilities in excess of $500,000 and less (c) one hundred
+percent (100%) of payables that are over ninety (90) days aged.
+
+ 
+
+“USA Patriot Act” shall mean the Uniting and Strengthening America by Providing
+Appropriate Tools required to Intercept and Obstruct Terrorism Act of 2001, Pub.
+L. No. 107-56, 115 Stat. 272 (2001), as the same has been, or shall hereafter
+be, renewed, extended, amended or replaced.
+
+ 
+
+“Viking” shall mean Viking Energy Group, Inc.
+
+ 
+
+1.3 Undefined Financial Accounting Terms. Financial accounting terms used in
+this Agreement without definition are used herein with the respective meanings
+assigned thereto in accordance with GAAP at the time in effect.
+
+ 
+
+1.4 References. References in this Agreement to Schedule, Exhibit, Article or
+Section numbers shall be to Schedules, Exhibits, Articles or Sections of this
+Agreement, unless expressly stated to the contrary. References in this Agreement
+to “hereby,” “herein,” “hereinafter,” “hereinabove,” “hereinbelow,” “hereof,”
+“hereunder” and words of similar import shall be to this Agreement in its
+entirety and not only to the particular Schedule, Exhibit, Article or Section in
+which such reference appears. Specific enumeration herein shall not exclude the
+general and, in such regard, the terms “includes” and “including” used herein
+shall mean “includes, without limitation,” or “including, without limitation,”
+as the case may be. Except as otherwise indicated, references in this Agreement
+to statutes, sections or regulations are to be construed as including all
+statutory or regulatory provisions consolidating, amending, replacing,
+succeeding or supplementing the statute, section or regulation referred to.
+References in this Agreement to (i) a matter or item being “approved”,
+“consented to” or words of similar import shall mean such action is taken in
+writing and (ii) “writing” shall include printing, typing, lithography,
+facsimile reproduction and other means of reproducing words in a tangible
+visible form. References in this Agreement to agreements and other contractual
+instruments shall be deemed to include all exhibits and appendices attached
+thereto and all subsequent amendments and other modifications to such
+instruments, but only to the extent such amendments and other modifications are
+not prohibited by the terms of this Agreement. References in this Agreement to
+Persons include their respective successors and permitted assigns.
+
+     
+
+ - 23 -
+
+  
+
+ 
+
+1.5 Articles and Sections. This Agreement, for convenience only, has been
+divided into Articles and Sections; and it is understood that the rights and
+other legal relations of the parties hereto shall be determined from this
+instrument as an entirety and without regard to the aforesaid division into
+Articles and Sections and without regard to headings prefixed to such Articles
+or Sections.
+
+ 
+
+1.6 Number and Gender. Whenever the context requires, reference herein made to
+the single number shall be understood to include the plural; and likewise, the
+plural shall be understood to include the singular. Definitions of terms defined
+in the singular or plural shall be equally applicable to the plural or singular,
+as the case may be, unless otherwise indicated. Words denoting sex shall be
+construed to include the masculine, feminine and neuter, when such construction
+is appropriate; and specific enumeration shall not exclude the general but shall
+be construed as cumulative.
+
+ 
+
+1.7 Incorporation of Schedules and Exhibits. The Schedules and Exhibits attached
+to this Agreement are incorporated herein and shall be considered a part of this
+Agreement for all purposes.
+
+ 
+
+1.8 Negotiated Transaction. Each party to this Agreement affirms to the others
+that it has had the opportunity to consult, and discuss the provisions of this
+Agreement with, independent counsel and fully understands the legal effect of
+each provision.
+
+ 
+
+ARTICLE II
+
+ 
+
+TERMS OF FACILITY
+
+ 
+
+2.1 Term Loan.
+
+ 
+
+(a) Subject to the terms and conditions of this Agreement, each Lender severally
+agrees to make a Term Loan to the Borrowers on the Effective Date in a principal
+amount not to exceed the applicable term loan commitment set forth on Schedule
+1.2B, in the manner and for the purposes provided in Section 2.2.
+Notwithstanding anything to the contrary contained herein (and without affecting
+any other provisions hereof), the funded portion of each Term Loan made on the
+Effective Date shall be equal to 96.00% of the principal amount of such Term
+Loan (it being agreed that the full principal amount of each such term Loan
+shall be the “initial” principal amount of such Term Loan and deemed outstanding
+on the Effective Date and the Borrowers shall be jointly and severally obligated
+to repay 100.00% of the principal amount of each such Term Loan as provided
+hereunder). The parties hereto acknowledge and agree that such 4.00% of original
+issue discount shall be treated as reducing the issue price of the Term Loan by
+like amount in accordance with Treasury Regulation Section 1.1273-2(g)(2),
+resulting in an aggregate of four percent (4%) of original issue discount in
+respect of the Term Loan for federal income tax purposes, and shall report
+consistently therewith for all purposes.
+
+    
+
+ - 24 -
+
+  
+
+ 
+
+(b) The Borrowers may request the Term Loan by providing at least one (1)
+Business Day’s prior written notice thereof to the Agent, in the form of a
+Borrowing Request. Each Lender shall severally make available to the Agent an
+amount equal to such Lender’s Percentage Share of the Commitment at an account
+designated by the Agent by 11:00 a.m. New York time on the Effective Date. The
+amount so received by the Agent shall, upon receipt of all requested funds and
+subject to the terms and conditions hereof, be made available to one or more of
+the Borrowers, as directed by the Borrowers, in immediately available funds. The
+portion of the Term Loan to be repaid to each Lender shall be evidenced by the
+Note of such Lender.
+
+ 
+
+(c) The failure of any Lender to make the portion of the Term Loan required to
+be made by it hereunder shall not relieve any other Lender of its obligation to
+make the portion of the Term Loan required to be made by it, and no Lender shall
+be responsible for the failure of any other Lender to make its portion of the
+Term Loan.
+
+ 
+
+2.2 Use of Loan Proceeds. Proceeds of the Term Loan shall be used: (a) to
+finance the acquisition of the properties contemplated in the Acquisition
+Agreement, (b) for the working capital and general business purposes of the
+Borrowers not otherwise prohibited under applicable provisions of this Agreement
+and approved by the Agent, and (c) to pay fees and expenses incurred in
+connection with this Agreement and the other Loan Documents as more particularly
+described on Schedule 2.2.
+
+ 
+
+2.3 Repayment of Term Loan.
+
+ 
+
+(a) Principal. The Borrowers hereby unconditionally promise to pay to the Agent,
+in cash, for the account of the Lenders, (i) beginning on May 1, 2020 and on the
+first day of each calendar month thereafter (in each case, if not a Business
+Day, the immediately succeeding Business Day), a principal amount in respect to
+the Term Loans equal to one percent (1%) of the then outstanding Loan Balance,
+and (ii) to the extent not previously paid, the then unpaid principal amount of
+each Term Loan on the Maturity Date and as otherwise contemplated in Section
+2.9. The Term Loan is not a revolving loan; amounts repaid hereunder may not be
+reborrowed.
+
+ 
+
+(b) Interest. Each Term Loan shall bear interest on the principal amount thereof
+on each day outstanding from the Effective Date, at a rate per annum equal to
+the Contract Rate payable in cash on each Interest Payment Date. Accrued cash
+interest on each Term Loan shall be paid in cash in arrears on each Interest
+Payment Date applicable to such Term Loan. Interest on past‑due principal and,
+to the extent permitted by applicable law, past‑due interest, shall accrue at
+the Default Rate and shall be payable upon demand by the Agent. Notwithstanding
+the foregoing, during the existence of any Event of Default, such interest shall
+be payable upon demand by the Agent. While any Event of Default exists or after
+acceleration, interest shall accrue and the Borrowers shall pay interest (after
+as well as before entry of judgment thereon to the extent permitted by law) on
+any amount payable by the Borrowers hereunder, at a per annum rate equal to the
+lesser of (A) the Highest Lawful Rate and (B) the Default Rate.
+
+     
+
+ - 25 -
+
+  
+
+ 
+
+2.4 [Reserved].
+
+ 
+
+2.5 Outstanding Amounts. The outstanding principal balance of the Note of each
+Lender reflected by the notations of such Lender on its records shall be deemed
+presumptive evidence of the principal amount owing on such Note. The liability
+for payment of principal and interest evidenced by each Note shall be limited to
+principal amounts actually advanced and outstanding pursuant to this Agreement,
+the original issue discount amount and interest on such amounts calculated in
+accordance with this Agreement. The Agent shall maintain accounts in which it
+will record (i) the amount of each Term Loan made hereunder and the Contract
+Rate or other interest rate applicable thereto; (ii) the amount of any principal
+or interest due and payable or to become due and payable from the Borrowers to
+each Lender hereunder; and (iii) the amount of any sum received by the Agent
+hereunder for the account of the Lenders and each Lender’s share thereof. The
+entries made in the accounts maintained pursuant to this paragraph shall be
+prima facie evidence of the existence and amounts of the obligations therein
+recorded; provided that the failure of any Lender or the Agent to maintain such
+accounts or any error therein shall not in any manner affect the obligations of
+the Borrowers to repay the Term Loan in accordance with its terms. In the event
+of any conflict between the records maintained by any Lender and the records of
+the Agent in respect of such matters, the records of the Agent shall control in
+the absence of manifest error.
+
+ 
+
+2.6 Taxes and Time, Place, and Method of Payments.
+
+ 
+
+(a) All payments required pursuant to this Agreement or the Notes shall be made
+without set-off or counterclaim in Dollars and in immediately available funds
+free and clear of, and without deduction for, any Indemnified Taxes or Other
+Taxes; provided, however that if any Borrower shall be required to deduct any
+Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
+shall be increased by the amount (the “Additional Amount”) necessary so that
+after making all required deductions (including deductions applicable to
+additional sums described in this Section 2.6(a)) the Agent or any Lender, as
+the case may be, receives an amount equal to the sum it would have received had
+no such deductions been made, (ii) each Borrower shall make any such deductions
+and (iii) each Borrower shall pay the full amount deducted to the relevant
+Governmental Authority in accordance with applicable law. In addition, to the
+extent not paid in accordance with the preceding sentence, each Borrower shall
+pay any Other Taxes to the relevant Governmental Authority in accordance with
+applicable law.
+
+ 
+
+(b) Subject to the provisions of Section 2.14, the Borrowers, on a joint and
+several basis with any other Borrower, shall indemnify the Agent and each Lender
+for Indemnified Taxes and Other Taxes payable by such Person, provided, however,
+that no Borrower shall be obligated to make payment to the Agent or any Lender
+in respect of penalties, interest and other similar liabilities attributable to
+such Indemnified Taxes or Other Taxes if such penalties, interest or other
+similar liabilities are attributable to the gross negligence or willful
+misconduct of the Person seeking indemnification; provided further, that neither
+any Lender nor the Agent shall be entitled to indemnification for Indemnified
+Taxes and Other Taxes paid by such Person more than three months prior to the
+date such Lender or the Agent gives notice and demand thereof to the Borrowers
+(except that, if the indemnification is based on a Regulatory Change giving rise
+to such Indemnified Taxes or Other Taxes the effect of which is retroactive,
+then the three month period referred to above shall be extended to include the
+period of retroactive effect thereof).
+
+    
+
+ - 26 -
+
+  
+
+ 
+
+(c) If a Lender or the Agent shall become aware that it is entitled to claim a
+refund from a Governmental Authority in respect of Indemnified Taxes or Other
+Taxes paid by any Borrower pursuant to this Section 2.6, including Indemnified
+Taxes or Other Taxes as to which it has been indemnified by the Borrowers, or
+with respect to which any Borrower has paid Additional Amounts pursuant to the
+Loan Documents, it shall promptly notify the relevant Borrower of the
+availability of such refund claim and, if the Lender or the Agent, as the case
+may be, determines in good faith that making a claim for refund will not have an
+adverse effect to its taxes or business operations, it shall, within 10 days
+after receipt of a request by the Borrowers, make a claim to such Governmental
+Authority for such refund at the expense of the Borrowers. If a Lender or the
+Agent receives a refund in respect of any Indemnified Taxes or Other Taxes paid
+by any Borrower pursuant to the Loan Documents, it shall within 30 days from the
+date of such receipt pay over such refund to the relevant Borrower (but only to
+the extent of Indemnified Taxes or Other Taxes paid pursuant to the Loan
+Documents, including indemnity payments made or Additional Amounts paid, by the
+relevant Borrower under this Section 2.6 with respect to the Indemnified Taxes
+or Other Taxes giving rise to such refund), net of all reasonable out of pocket
+expenses of such Lender or the Agent, as the case may be, and without interest
+(other than interest paid by the relevant Governmental Authority with respect to
+such refund).
+
+ 
+
+(d) If any Lender or the Agent is or becomes eligible under any applicable law,
+regulation, treaty or other rule to a reduced rate of taxation, or a complete
+exemption from withholding, with respect to Indemnified Taxes or Other Taxes on
+payments made to it by the Borrowers or any of them, such Lender or the Agent,
+as the case may be, shall, upon the request, and at the cost and expense, of the
+Borrowers, complete and deliver from time to time any certificate, form or other
+document demanded by the Borrowers, the completion and delivery of which are a
+precondition to obtaining the benefit of such reduced rate or exemption,
+provided that the taking of such action by such Lender or the Agent, as the case
+may be, would not, in the reasonable judgment of such Lender or the Agent, as
+the case may be, be disadvantageous or prejudicial to such Lender or the Agent,
+as the case may be, or inconsistent with its internal policies or legal or
+regulatory restrictions. For any period with respect to which a Lender or the
+Agent, as the case may be, has failed to provide any such certificate, form or
+other document requested by any Borrower, such Lender or the Agent, as the case
+may be, shall not be entitled to any payment under this Section 2.6 in respect
+of any Indemnified Taxes or Other Taxes that would not have been imposed but for
+such failure.
+
+ 
+
+(e) Each Lender organized under the laws of a jurisdiction in the United States
+of America, any State thereof or the District of Columbia (other than Lenders
+that are corporations or otherwise exempt from United States of America backup
+withholding Tax) shall (i) deliver to the Borrowers and the Agent, when such
+Lender first becomes a Lender, upon the written request of the Borrowers or the
+Agent, two original copies of United States of America Internal Revenue Service
+Form W-9 or any successor form, properly completed and duly executed by such
+Lender, certifying that such Lender is exempt from United States of America
+backup withholding Tax on payments of interest made under the Loan Documents and
+(ii) thereafter at each time it is so reasonably requested in writing by the
+Borrowers or the Agent, deliver within a reasonable time two original copies of
+an updated Form W-9 or any successor form thereto.
+
+   
+
+ - 27 -
+
+  
+
+ 
+
+(f) Each Lender that is organized under the laws of a jurisdiction other than
+the United States of America, any State thereof or the District of Columbia
+(each such Lender, a “Foreign Lender”) that is entitled to an exemption from or
+reduction of withholding Tax under the laws of the jurisdiction in which the
+Borrowers are located, or any treaty to which such jurisdiction is a party, with
+respect to payments under the Loan Documents shall deliver to the Borrowers and
+the Agent, but only at the written request of any Borrower or the Agent, such
+properly completed and duly executed documentation prescribed by applicable law
+or reasonably requested by the Borrowers or the Agent as will permit such
+payments to be made without withholding or at a reduced rate, unless in the good
+faith opinion of any Foreign Lender such documentation would expose such Foreign
+Lender to any material adverse consequence or risk. Such documentation shall be
+delivered by such Foreign Lender on or before the date it becomes a Lender. In
+addition, each Foreign Lender shall deliver such forms promptly upon the
+obsolescence or invalidity of any form previously delivered by such Foreign
+Lender. Each Lender (and, in the case of a Foreign Lender its lending office),
+represents that on the Closing Date, payments made hereunder by the Borrowers or
+the Agent to it would not be subject to United States of America federal
+withholding tax.
+
+ 
+
+(g) Notwithstanding the provisions of Section 2.6(a), the Borrowers shall not be
+required to indemnify any Foreign Lender or to pay any Additional Amounts to any
+Foreign Lender, in respect of United States of America federal withholding tax
+pursuant to Section 2.6(a), (i) to the extent that the obligation to withhold
+amounts with respect to United States of America federal withholding tax existed
+on the date such Foreign Lender became a Lender; (ii) with respect to payments
+to a new lending office with respect to such Lender’s Percentage Share of the
+Loan Balance, but only to the extent that such withholding tax exceeds any
+withholding tax that would have been imposed on such Lender had it not
+designated such new lending office; (iii) with respect to a change by such
+Foreign Lender of the jurisdiction in which it is organized, incorporated,
+controlled or managed, or in which it is doing business, from the date such
+Foreign Lender changed such jurisdiction, but only to the extent that such
+withholding tax exceeds any withholding tax that would have been imposed on such
+Lender had it not changed the jurisdiction in which it is organized,
+incorporated, controlled or managed, or in which it is doing business; or (iv)
+to the extent that the obligation to indemnify any Foreign Lender or to pay such
+Additional Amounts would not have arisen but for a failure by such Foreign
+Lender to comply with the provisions of Section 2.6(f).
+
+ 
+
+(h) All payments by any Borrower hereunder shall be made not later than 2:00
+p.m., New York time, on the date specified for payment under this Agreement to
+the Agent at the account most recently designated by it in Dollars, in
+immediately available funds and shall be made without any set of, counterclaim
+or deduction whatsoever. Any payment received after 2:00 p.m., New York time,
+may, in Agent’s discretion, be deemed to have been made on the next succeeding
+Business Day for all purposes. Except as provided to the contrary herein, if the
+due date of any payment hereunder or under any Note would otherwise fall on a
+day which is not a Business Day, such date shall be extended to the next
+succeeding Business Day, and interest shall be payable for any principal so
+extended for the period of such extension.
+
+  
+
+ - 28 -
+
+  
+
+  
+
+2.7 Pro Rata Treatment; Adjustments.
+
+ 
+
+(a) Except to the extent otherwise expressly provided herein (for the avoidance
+of doubt, including Section 9.9), (i) the borrowings pursuant to this Agreement
+shall be made from the Lenders pro rata in accordance with their respective
+Percentage Shares, (ii) each payment by the Borrowers of fees shall be made for
+the account of the Agent or the Lenders as agreed among them, (iii) each payment
+in reduction of the Loan Balance shall be made for the account of the Lenders
+pro rata in accordance with their respective shares of the Loan Balance, (iv)
+each payment of interest hereunder shall be made for the account of the Lenders
+pro rata in accordance with their respective shares of the aggregate amount of
+interest due and payable to the Lenders, and (v) each payment by the Borrowers
+under Commodity Hedge Agreements with a Lender shall be made only to the Person
+or Persons entitled thereto.
+
+ 
+
+(b) The Agent shall distribute all payments with respect to the Obligations to
+the Lenders promptly upon receipt in like funds as received. In the event that
+any payments made hereunder by the Borrowers or one or more of them at any
+particular time are insufficient to satisfy in full the Obligations due and
+payable at such time, such payments shall be applied (i) first, to fees and
+expenses due pursuant to the terms of this Agreement or any other Loan Document,
+(ii) second, to accrued interest, (iii) third, ratably to pay the Prepayment
+Fee, if any, due on the Term Loans (including, for the avoidance of any doubt,
+any Prepayment Fee due resulting from the prepayment of principal under clause
+(iv) of this clause (b)), (iv) fourth, ratably to pay the principal amount of
+all Term Loans (or being repaid at such time), (v) fifth, to any other
+Obligations pro-rata on the basis of the ratio of the amount of all such
+Obligations then owing to the Agent or the relevant Lender or Affiliate of any
+Lender, as the case may be, to the total amount of the Obligations then owing,
+and (vi) sixth, to the Borrowers.
+
+ 
+
+(c) If any Lender (for purposes of this Section 2.7(c), a “Benefited Lender”)
+shall at any time receive any payment of all or part of its portion of the
+Obligations, or receive any Collateral in respect thereof (whether voluntarily
+or involuntarily, by set-off, pursuant to events or proceedings of the nature
+referred to in Section 7.1(e) or Section 7.1(f) or otherwise) in an amount
+greater than such Lender was entitled to receive pursuant to the terms hereof,
+such Benefited Lender shall purchase for cash from the other Lenders such
+portion of the Obligations of such other Lenders, or shall provide such other
+Lenders with the benefits of any such collateral or the proceeds thereof, as
+shall be necessary to cause such Benefited Lender to share the excess payment or
+benefits of such collateral or proceeds with each of the Lenders according to
+the terms hereof. If all or any portion of such excess payment or benefits is
+thereafter recovered from such Benefited Lender, such purchase shall be
+rescinded and the purchase price and benefits returned by such Lender, to the
+extent of such recovery, but without interest. The Borrowers agree that each
+such Lender so purchasing a portion of the Obligations of another Lender may
+exercise all rights of payment (including rights of set-off) with respect to
+such portion as fully as if such Lender were the direct holder of such portion.
+If any Lender ever receives, by voluntary payment, exercise of rights of set-off
+or banker’s lien, counterclaim, cross-action or otherwise, any funds of any
+Borrowers to be applied to the Obligations, or receives any proceeds by
+realization on or with respect to any Collateral, all such funds and proceeds
+shall be forwarded immediately to the Agent for distribution in accordance with
+the terms of this Agreement.
+
+   
+
+ - 29 -
+
+  
+
+  
+
+2.8 Voluntary Prepayments. Subject to applicable provisions of this Agreement,
+the Borrowers shall have the right, at any time or from time to time, to prepay
+the Loan Balance; provided, however, that (a) the Borrowers shall give the Agent
+written notice of each such prepayment no less than three (3) Business Days
+prior to prepayment (the “Prepayment Notice”), (b) any voluntary prepayment
+shall be in a minimum amount of (i) if being paid in whole, the Obligations, and
+(ii) if being paid in part, $100,000 and integral multiples of $100,000 in
+excess of that amount, (c) the Borrowers shall pay all accrued and unpaid
+interest on the amounts prepaid, and (d) no such prepayment shall serve to
+postpone the repayment when due of any Obligation or any installments thereof.
+Upon the giving of any such Prepayment Notice, the principal amount of the Term
+Loans specified in such Prepayment Notice, together with the interest then
+accrued but unpaid on such principal amount and any Prepayment Fee with respect
+thereto, shall become due and payable on the prepayment date specified therein
+and shall be irrevocable; provided that any Prepayment Notice may state that
+such notice is conditional upon the consummation of an acquisition or sale
+transaction or upon the effectiveness of other credit facilities or the receipt
+of the proceeds from the issuance of other Indebtedness or capital stock or the
+occurrence of any other specified event, in which case such Prepayment Notice
+may be revoked by the Borrowers by notice to the Agent on or prior to the date
+if such condition is not satisfied.
+
+ 
+
+2.9 Mandatory Prepayments.
+
+ 
+
+(a) In addition to payments in reduction of the Loan Balance provided for in
+Section 2.3, the Borrowers shall promptly pay to the Agent, for application to
+reduce the amount of the payment due at the Maturity Date to repay the then
+existing Loan Balance in full all proceeds (net of reasonable and customary
+transaction costs) from:
+
+ 
+
+(i) the incurrence of any Indebtedness not permitted by the proviso to Section
+6.1 (without waiving or modifying in any way remedies available to the Agent or
+the Lenders as a result of any Event of Default arising from such incurrence of
+Indebtedness by any one or more of the Borrowers);
+
+ 
+
+(ii) any asset sales not permitted by the proviso to Section 6.4 (without
+waiving or modifying in any way remedies available to the Agent or the Lenders
+as a result of any Event of Default arising from such asset sales by any one or
+more of the Borrowers); provided, that such proceeds shall be applied as soon as
+possible, and in any event, within five (5) days after the receipt of such
+proceeds; provided, further, however, that upon the Agent’s prior written
+consent, such proceeds shall not be required to be so applied on such date so
+long as no Event of Default then exists and the Borrowers have delivered a
+certificate to the Agent on such date stating that such proceeds shall be used
+to invest in or replace or restore any properties or assets (and, if such
+investment is in Oil and Gas Properties, that such investment complies with
+Section 6.19 of this Agreement) in respect of which such proceeds were paid
+within 90 days following the date of the receipt of such proceeds (which
+certificate shall set forth the estimates of the proceeds to be so expended),
+and provided further, that if all or any portion of such proceeds are not so
+used within 90 days after the date of the receipt of such proceeds (or such
+earlier date, if any, as the Borrowers determine not to reinvest such proceeds
+as set forth above), or, if later, within 90 days after the Borrowers have
+entered into a binding commitment (prior to the end of the referenced 90-day
+period) to reinvest such proceeds, such remaining portion shall be applied on
+the last day of such period (or such earlier date, as the case may be) as
+provided above in this Section 2.9(a)(ii) without regard to the immediately
+preceding proviso.
+
+   
+
+ - 30 -
+
+  
+
+ 
+
+(iii) any insurance claim, except as to any proceeds allowed by the Agent to
+repair or replace damaged Property giving rise to the relevant insurance claim;
+provided that no prepayment shall be required pursuant to this Section
+2.9(a)(iii) to the extent the net cash proceeds from such insurance claims do
+not exceed $500,000 in a single transaction or related series of transactions or
+$1,000,000 in the aggregate for the term of this Agreement (and only such excess
+shall be required to be prepaid) and to the extent any net cash proceeds from
+such insurance claims remain after the foregoing application to the Obligations,
+the remaining Commitments of the Lenders shall be permanently reduced dollar for
+dollar on a pro rata basis by such remaining net cash proceeds; provided,
+however, that upon the Agent’s prior written consent (which consent shall not be
+unreasonably withheld or delayed), so long as no Event of Default then exists,
+such net cash proceeds shall be made available for use by the applicable
+Borrower to pay or recover the costs of restoring, repairing or replacing the
+affected Property during the period of 180 days after the applicable Borrower’s
+receipt thereof.
+
+ 
+
+(b) If, for any fiscal quarter of the Borrowers, commencing with the fiscal
+quarter ending September 30, 2020, such Excess Cash Flow shall be a positive
+number, on or before the Excess Cash Flow Application Date for such fiscal
+quarter, the Borrowers shall prepay, without any premium or penalty, an
+aggregate principal amount of Term Loan equal to seventy-five percent (75%) of
+such Excess Cash Flow. Each such prepayment shall be accompanied by a Cash Flow
+Sweep Worksheet in the form of Exhibit E, and made on or before the date (the
+“Excess Cash Flow Application Date”) that is the third (3rd) Business Day
+following the date on which the financial statements of the Borrowers for the
+fiscal quarter most recently ended are delivered (or if earlier, required to be
+delivered) pursuant to Section 5.3.
+
+ 
+
+(c) The Borrowers shall provide one (1) Business Day’s prior written notice of
+any mandatory prepayment required hereunder. Any prepayment under clauses
+(a)(i), (a)(ii), (a)(iii) or (a)(iv) above shall be accompanied by a payment of
+the Prepayment Fee related thereto. Upon such prepayment, the Prepayment Fee
+shall become immediately due and payable, and the Borrowers shall pay such
+Prepayment Fee, as compensation to the Lenders for the loss of their investment
+opportunity and not as a penalty, whether or not an Insolvency Proceeding has
+commenced, and (if an Insolvency Proceeding has commenced) without regard to
+whether such Insolvency Proceeding is voluntary or involuntary, or whether
+payment occurs pursuant to a motion, plan of reorganization, or otherwise, and
+without regard to whether the Term Loans and other Obligations are satisfied or
+released by foreclosure (whether or not by power of judicial proceeding), deed
+in lieu of foreclosure or by any other means. Without limiting the foregoing,
+any redemption, prepayment, or payment of the Obligations in or in connection
+with an Insolvency Proceeding shall constitute an optional prepayment thereof
+and require the immediate payment of the Prepayment Fee. Any Prepayment Fee
+pursuant to this clause (c) shall be presumed to be liquidated damages sustained
+by each Lender as the result of the redemption and/or acceleration of its Term
+Loan and each Borrower agrees that it is reasonable under the circumstances in
+view of the impracticability and extreme difficulty of ascertaining actual
+damages and by mutual agreement of the parties as to a reasonable calculation of
+each Lender’s lost profits as a result thereof.
+
+  
+
+ - 31 -
+
+  
+
+ 
+
+(d) As soon as practicable after any Borrower has knowledge that a prepayment
+pursuant to clauses (a)(i), (a)(ii), (a)(iii) or (a)(iv) above is required to be
+paid, such Borrower shall deliver to the Agent a certificate of a Financial
+Officer demonstrating the calculation of the amount of the applicable net
+proceeds or other applicable financial tests or proceeds giving rise to the
+prepayment, as the case may be. In the event that any Borrower shall
+subsequently determine that the actual amount received exceeded the amount set
+forth in such certificate, such Borrower shall promptly make an additional
+prepayment of the Term Loans in such excess, and such Borrower shall
+concurrently therewith deliver to the Agent a certificate of a Financial Officer
+demonstrating the calculation of such excess.
+
+ 
+
+Upon receipt of any payment, Prepayment Notice or other prepayment to be made,
+the Agent shall promptly calculate and notify the Borrowers of the amount of the
+payment or prepayment required pursuant to Section 2.7, Section 2.8 and Section
+2.9 and such determination shall be binding on the Borrowers, absent manifest
+error.
+
+ 
+
+2.10 Loans to Satisfy Obligations of Borrowers. Upon the occurrence and during
+the continuation of a Default or an Event of Default, the Lenders may, but shall
+not be obligated to, make loans for the benefit of the Borrowers or any of them
+and apply proceeds thereof to the satisfaction of any condition, warranty,
+representation or covenant of any Borrowers contained in this Agreement or any
+other Loan Document. Such loans shall be and shall bear interest at the Contract
+Rate, subject, however, to the provisions of Section 2.3 regarding the accrual
+of interest at the Default Rate, which provisions shall be applicable to any
+loan made for the benefit of one or more of the Borrowers pursuant to the
+preceding sentence of this Section 2.10.
+
+ 
+
+2.11 General Provisions Relating to Interest.
+
+ 
+
+(a) It is the intention of the parties hereto to comply strictly with the usury
+laws of the State of New York and the United States of America. In this
+connection, there shall never be collected, charged or received on the sums
+advanced hereunder plus the amount of the original issue discount interest in
+excess of that which would accrue at the Highest Lawful Rate.
+
+ 
+
+(b) Notwithstanding anything herein or in the Notes to the contrary, during any
+Limitation Period, the interest rate to be charged on amounts evidenced by the
+Notes shall be the Highest Lawful Rate, and the obligation, if any, of the
+Borrowers for the payment of fees or other charges deemed to be interest under
+applicable law shall be suspended. During any period or periods of time
+following a Limitation Period, to the extent permitted by applicable laws of the
+State of New York or the United States of America, the interest rate to be
+charged hereunder shall remain at the Highest Lawful Rate until such time as
+there has been paid to each applicable Lender (i) the amount of interest in
+excess of that accruing at the Highest Lawful Rate that such Lender would have
+received during the Limitation Period had the interest rate remained at the
+otherwise applicable rate and (ii) all interest and fees otherwise payable to
+such Lender but for the effect of such Limitation Period.
+
+  
+
+ - 32 -
+
+  
+
+ 
+
+(c) If, under any circumstances, the aggregate amounts paid on the Notes or
+under this Agreement or any other Loan Document include amounts which by law are
+deemed interest and which would exceed the amount permitted if the Highest
+Lawful Rate were in effect, the Borrowers stipulate that such payment and
+collection will have been and will be deemed to have been, to the extent
+permitted by applicable laws of the State of New York or the United States of
+America, the result of mathematical error on the part of the Borrowers, the
+Agent and the Lenders; and the party receiving such excess shall promptly refund
+the amount of such excess (to the extent only of such interest payments in
+excess of that which would have accrued and been payable on the basis of the
+Highest Lawful Rate) upon discovery of such error by such party or notice
+thereof from the Borrowers. In the event that the maturity of any Obligation is
+accelerated, by reason of an election by the Lenders or otherwise, or in the
+event of any required or permitted prepayment, then the consideration
+constituting interest under applicable laws may never exceed that payable on the
+basis of the Highest Lawful Rate, and excess amounts paid which by law are
+deemed interest, if any, shall be credited by the Agent and the Lenders on the
+principal amount of the Obligations, or if the principal amount of the
+Obligations shall have been paid in full, refunded to the Borrowers.
+
+ 
+
+(d) All sums paid, or agreed to be paid, to the Agent and the Lenders for the
+use, forbearance and detention of the proceeds of any advance hereunder shall,
+to the extent permitted by applicable law, be amortized, prorated, allocated and
+spread throughout the full term hereof until paid in full so that the actual
+rate of interest is uniform but does not exceed the Highest Lawful Rate
+throughout the full term hereof.
+
+ 
+
+2.12 Increased Costs, etc.
+
+ 
+
+(a) Subject to the provisions of Section 2.14 (which shall be controlling with
+respect to the matters covered thereby), if any Change in Law: (i) subjects any
+Lender (or its applicable lending office) to any additional Tax (other than (A)
+any Tax on the net income of such Lender or any of its Tax Related Persons, (B)
+any Taxes described in clauses (B) through (E) of the definition of Excluded
+Taxes and (C) Connection Income Taxes, and without duplication as to amounts
+payable to such Lender pursuant to Section 2.14) with respect to this Agreement
+or any of the other Loan Documents or any of its obligations hereunder or
+thereunder or any payments to such Lender (or its applicable lending office) of
+principal, interest, fees or any other amount payable hereunder; (ii) imposes,
+modifies or holds applicable any reserve (including any marginal, emergency,
+supplemental, special or other reserve), special deposit, compulsory loan, FDIC
+insurance or similar requirement against assets held by, or deposits or other
+liabilities in or for the account of, or advances or loans by, or other credit
+extended by, or any other acquisition of funds by, any office of any Lender; or
+(iii) imposes any other condition (other than with respect to a Tax matter) on
+or affecting any Lender (or its applicable lending office) or its obligations
+hereunder; and the result of any of the foregoing is to increase the cost to
+such Lender of agreeing to make Loans hereunder or to reduce any amount received
+or receivable by such Lender (or its applicable lending office) with respect
+thereto; then, in any such case, the Borrowers shall promptly pay to such
+Lender, upon receipt of the statement referred to in the next sentence, such
+additional amount or amounts (in the form of an increased rate of, or a
+different method of calculating, interest or otherwise as such Lender in its
+sole discretion shall determine) as may be necessary to compensate such Lender
+for any such increased cost or reduction in amounts received or receivable
+hereunder, provided that such amounts are reasonably determined. Such Lender
+shall deliver to the Borrowers (with a copy to the Agent) a written statement,
+setting forth in reasonable detail the basis for calculating the additional
+amounts owed to such Lender under this Section 2.12, which statement shall be
+conclusive and binding upon all parties hereto absent manifest error.
+
+  
+
+ - 33 -
+
+  
+
+ 
+
+(b) Failure or delay on the part of any to demand compensation pursuant to this
+Section shall not constitute a waiver of such Lender’s right to demand such
+compensation; provided that the Borrowers shall not be required to compensate a
+Lender pursuant to this Section for any increased costs incurred or reductions
+suffered more than nine (9) months prior to the date that such Lender, as the
+case may be, notifies the Borrowers of the Change in Law giving rise to such
+increased costs or reductions, and of such Lender’s intention to claim
+compensation therefor (except that, if the Change in Law giving rise to such
+increased costs or reductions is retroactive, then the nine (9) month period
+referred to above shall be extended to include the period of retroactive effect
+thereof).
+
+ 
+
+2.13 Taxes; Withholding, etc.
+
+ 
+
+(a) Payments to Be Free and Clear. All sums payable by any Borrower hereunder
+and under the other Loan Documents shall (except to the extent required by law)
+be paid free and clear of, and without any deduction or withholding on account
+of, any Tax.
+
+ 
+
+(b) Withholding of Taxes. If any Borrower or any other Person is required by law
+(as determined by the relevant withholding agent in good faith) to make any
+deduction or withholding for or on account of any Tax from any sum paid or
+payable under any of the Loan Documents: (i) the Borrowers shall notify the
+Agent of any such requirement or any change in any such requirement as soon as
+the Borrowers becomes aware of it; (ii) the Borrowers shall be entitled to make
+such deduction or withholding and shall pay any such Tax to the relevant
+Governmental Authority before the date on which penalties attach thereto; (iii)
+the sum payable by such Borrower in respect of which the relevant deduction or
+withholding is required shall be increased to the extent necessary to ensure
+that after any such deduction or withholding, the Agent or such Lender, as the
+case may be, and each of their Tax Related Persons receives on the due date a
+net sum equal to what it would have received had no such deduction or
+withholding been required; and (iv) within thirty (30) days after making any
+such deduction or withholding, the Borrowers shall deliver to the Agent the
+original or a certified copy of a receipt issued by the relevant Governmental
+Authority evidencing such payment, a copy of the return reporting such payment,
+or other evidence of such payment satisfactory to the Agent; provided, no such
+additional amount shall be required to be paid to the Agent, any Lender or any
+Tax Related Person under clause (iii) above with respect to any (A) Taxes on the
+net income with respect to any Lender or the Agent or any Tax Related Person,
+(B) branch profits Taxes imposed by the United States, (C) U.S. federal
+withholding Taxes to the extent such Tax withholding or deduction requirement is
+in effect and applicable, as of the date hereof (in the case of each Lender
+listed on the signature pages hereof on the Closing Date) (or, if later, the
+date on which such Lender designates a new lending office) or on the effective
+date of the Assignment Agreement pursuant to which such Lender became a Lender
+(in the case of each other Lender), except to the extent that, pursuant to
+Section 2.13, amounts with respect to such Taxes were payable to such Lender
+immediately before it changed its lending office or such Lender’s assignor
+(including each of their Tax Related Persons) immediately before such Lender
+becomes a party hereto, (D) Taxes attributable to such Lender, the Agent and/or
+their Tax Related Person’s failure to comply with Section 2.13(e) or Section
+2.13(i), or (E) U.S. federal withholding Taxes imposed under FATCA
+(collectively, “Excluded Taxes”).
+
+  
+
+ - 34 -
+
+  
+
+ 
+
+(c) Other Taxes. In addition, the Borrowers shall pay all Other Taxes to the
+relevant Governmental Authorities in accordance with applicable law. The
+Borrowers shall deliver to the Agent official receipts or other evidence of such
+payment satisfactory to the Agent in respect of any Taxes or Other Taxes payable
+hereunder promptly after payment of such Taxes or Other Taxes.
+
+ 
+
+(d) Indemnification by the Borrowers. The Borrowers shall indemnify the Agent
+and each Lender, within ten (10) days after written demand therefor, for the
+full amount of any Taxes paid or incurred by the Agent or such Lender or their
+respective Tax Related Persons, as the case may be, relating to, arising out of,
+or in connection with any Loan Document or any payment or transaction
+contemplated hereby or thereby, whether or not such Taxes were correctly or
+legally imposed or asserted by the relevant Governmental Authority and all
+reasonable costs and expenses incurred in enforcing the provisions of this
+Section 2.13; provided, however, that the Borrowers shall not be required to
+indemnify the Agent and Lenders for any Excluded Taxes. A certificate from the
+relevant Lender or the Agent, setting forth in reasonable detail the basis and
+calculation of such Taxes shall be conclusive, absent manifest error.
+
+ 
+
+(e) Administrative Requirements; Forms Provision. Each Lender that is not a
+United States Person (as such term is defined in Section 7701(a)(30) of the
+Internal Revenue Code) for U.S. federal income tax purposes shall, to the extent
+it is legally eligible to do so, deliver to the Agent for transmission to the
+Borrowers, on or prior to the Closing Date (in the case of each Lender listed on
+the signature pages hereof on the Closing Date) or on or prior to the date of
+the Assignment Agreement pursuant to which it becomes a Lender (in the case of
+each other Lender), and at such other times as may be necessary in the
+determination of the Borrowers or the Agent (each in the reasonable exercise of
+its discretion), whichever of the following is applicable (i) executed copies of
+Internal Revenue Service Form W 8BEN or W-8BEN-E, properly completed and duly
+executed by such Lender, and such other documentation required under the
+Internal Revenue Code and reasonably requested by the Borrowers or the Agent to
+establish that such Lender and its Tax Related Persons are not subject to
+deduction or withholding of U.S. federal income tax with respect to any payments
+to such Lender of principal, interest, fees or other amounts payable under any
+of the Loan Documents or is subject to deduction or withholding at a reduced
+rate, (ii) two copies of Internal Revenue Service Form W-8ECI, (iii) if such
+Lender is claiming the benefits of the exemption for portfolio interest under
+Section 881(c) of the Internal Revenue Code, (x) a U.S. Tax Compliance
+Certificate, properly completed and duly executed by such Lender, and (y)
+executed copies of Internal Revenue Service Form W-8BEN and W-8BEN-E and such
+other documentation required under the Internal Revenue Code and reasonably
+requested by the Borrowers or the Agent to establish that such Lender and its
+Tax Related Persons are not subject to deduction or withholding of U.S. federal
+income tax with respect to any payments to such Lender of interest and other
+amounts payable under any of the Loan Documents and (iv) to the extent a Lender
+is not the beneficial owner, executed copies of Internal Revenue Service Form
+W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue
+Service Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate, Internal
+Revenue Service Form W-9 and such other documentation required under the
+Internal Revenue Code and reasonably requested by the Borrowers or the Agent to
+establish that Lender is not subject to deduction or withholding of U.S. federal
+income tax with respect to any payments to such Lender of interest and other
+amounts applicable under the Loan Documents. Each Lender required to deliver any
+forms, certificates or other evidence with respect to U.S. federal income tax
+withholding matters pursuant to this Section 2.13(e) hereby agrees, from time to
+time after the initial delivery by such Lender of such forms, certificates or
+other evidence, whenever a lapse in time or change in circumstances renders such
+forms, certificates or other evidence obsolete or inaccurate in any material
+respect, that such Lender shall, to the extent it is legally entitled to do so,
+promptly deliver to the Agent for transmission to the Borrowers two new copies
+of Internal Revenue Service Form W-8BEN or W-8BEN-E, W-8IMY or W-8ECI, and as
+applicable, a U.S. Tax Compliance Certificate properly completed and duly
+executed by such Lender, and such other documentation required under the
+Internal Revenue Code and reasonably requested by the Borrowers or the Agent to
+confirm or establish that such Lender is not subject to deduction or withholding
+of U.S. federal income tax with respect to payments to such Lender under the
+Loan Documents or is subject to deduction or withholding at a reduced rate, or
+notify the Agent and the Borrowers of its inability to deliver any such forms,
+certificates or other evidence. Any Lender or the Agent that is a “United States
+person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code
+shall deliver to the Borrowers and the Agent a properly completed and duly
+executed original of IRS Form W-9 or such other documentation or information
+prescribed by applicable U.S. federal law or reasonably requested by the
+Borrowers or the Agent as will enable the Borrowers to determine whether or not
+such Person is subject to backup withholding or information reporting
+requirements under the Internal Revenue Code. Notwithstanding the foregoing, or
+any other provision of any Loan Document, if any Lender shall have satisfied the
+requirements of the first sentence of this Section 2.13(e) on the Closing Date
+or on the date of the Assignment Agreement pursuant to which it became a Lender,
+the Borrowers shall have an obligation to pay to such Lender any additional
+amounts pursuant to this Section 2.13 (notwithstanding clause (E) of the
+definition of “Excluded Taxes”) in the event that, as a result of any change in
+any applicable law, treaty or governmental rule, regulation or order, or any
+change in the interpretation, administration or application thereof, such Lender
+is no longer properly entitled to deliver forms, certificates or other evidence
+at a subsequent date establishing the fact that such Lender is not subject to
+withholding as described herein. Nothing in this Section 2.13 shall be construed
+to require a Lender or the Agent to provide any forms or documentation that it
+is not legally entitled to provide.
+
+   
+
+ - 35 -
+
+  
+
+ 
+
+(f) Treatment of Certain Refunds. If the Agent or any Lender determines in its
+sole discretion, acting in good faith, that it has received a refund of any
+taxes as to which it has been indemnified by the Borrowers or with respect to
+which the Borrowers have paid additional amounts pursuant to this Section 2.13,
+it shall pay to such Borrower an amount equal to such refund (but only to the
+extent of indemnity payments made, or additional amounts paid, by such Borrower
+under this Section 2.13 with respect to the taxes giving rise to such refund),
+net of all out-of-pocket expenses incurred by the Agent or such Lender, as the
+case may be, and without interest (other than any interest paid by the relevant
+Governmental Authority with respect to such refund), provided that the
+Borrowers, upon the request of the Agent or such Lender, agrees to repay the
+amount paid over to such Borrower (plus any related penalties, interest or other
+charges imposed by the relevant Governmental Authority or expenses related
+thereto) to the Agent or such Lender in the event the Agent or such Lender is
+required to repay such refund to such Governmental Authority. Notwithstanding
+anything to the contrary in this paragraph (f), in no event will the Agent or
+Lender be required to pay any amount to the Borrowers pursuant to this paragraph
+(f) the payment of which would place the Agent or Lender, as applicable, in a
+less favorable net after-Tax position than the Agent or Lender, as applicable,
+would have been if the Tax subject to indemnification and giving rise to such
+refund had not been deducted, withheld or otherwise imposed and the
+indemnification payments or additional amounts with respect to such Tax had
+never been paid. This subsection shall not be construed to require the Agent or
+any Lender to make available its tax returns (or any other information relating
+to its taxes that it deems confidential) to the Borrowers or any other Person or
+to alter its customary procedures and practices with respect to the
+administration of taxes.
+
+ 
+
+(g) FATCA Provisions. If a payment made to a Lender under this Agreement would
+be subject to U.S. federal withholding tax imposed by FATCA if such Lender were
+to fail to comply with the applicable reporting requirements of FATCA (including
+those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as
+applicable), such Lender shall deliver to the Borrowers and the Agent, at the
+time or times prescribed by law and at such time or times reasonably requested
+by the Borrowers or the Agent, such documentation prescribed by applicable law
+(including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue
+Code) and such additional documentation reasonably requested by the Borrowers or
+the Agent as may be necessary for the Borrowers or the Agent to comply with
+their obligations under FATCA, to determine that such Lender has complied with
+such Lender’s obligations under FATCA, or to determine the amount to deduct and
+withhold from such payment. Solely for purposes of this paragraph (g), “FATCA”
+shall include any amendments made to FATCA after the date of this Agreement.
+
+ 
+
+(h) Indemnification by the Lenders. Each Lender shall severally indemnify the
+Agent, within 10 days after demand therefor, for (i) any Taxes other than
+Excluded Taxes attributable to such Lender (but only to the extent that any
+Borrower has not already indemnified the Agent for such Taxes and without
+limiting the obligation of the Borrowers to do so), and (ii) any Excluded Taxes
+attributable to such Lender, in each case, that are payable or paid by the Agent
+in connection with any Loan Document, and any reasonable expenses arising
+therefrom or with respect thereto, whether or not such Taxes were correctly or
+legally imposed or asserted by the relevant Governmental Authority. A
+certificate as to the amount of such payment or liability delivered to any
+Lender by the Agent shall be conclusive absent manifest error. Each Lender
+hereby authorizes the Agent to set off and apply any and all amounts at any time
+owing to such Lender under any Loan Document or otherwise payable by the Agent
+to the Lender from any other source against any amount due to the Agent under
+this Section 2.13(h).
+
+ 
+
+(i) Status of Agent. On or prior to the date on which the Agent becomes the
+Agent under this Agreement (and from time to time thereafter upon the reasonable
+request of a Borrower), the Agent will deliver to the Borrowers either (i) an
+executed copy of Internal Revenue Service Form W-9, or (ii) with respect to any
+amounts received on its own account, an executed copy of an applicable Internal
+Revenue Service Form W-8, and (y) with respect to any amounts received for or on
+account of any Lender, an executed copy of Internal Revenue Service Form W-8IMY
+certifying that it is a U.S. branch that has agreed to be treated as a U.S.
+person for U.S. federal income tax purposes with respect to payments received by
+it from the Borrowers in its capacity as Agent, as applicable. The Agent shall
+promptly notify the Borrowers at any time it determines that it is no longer in
+a position to provide the certification described in the prior sentence.
+
+  
+
+ - 36 -
+
+  
+
+ 
+
+(j) Survival. Each party’s obligations under this Section 2.13 shall survive the
+resignation or replacement of the Agent or any assignment of rights by, or the
+replacement of, a Lender, the termination of the Commitments and the repayment,
+satisfaction or discharge of all obligations under any Loan Document.
+
+ 
+
+2.14 Replacement Lenders.
+
+ 
+
+(a) If any Lender has notified the Borrowers of its incurring any loss, cost or
+expense under Section 2.12, the Borrowers may, unless such Lender has notified
+the Borrowers that the circumstances giving rise to such notice no longer apply,
+terminate, in whole but not in part, the Commitment of such Lender (other than
+Woodbine or its Affiliates) (the “Terminated Lender”) at any time upon five (5)
+Business Days’ prior written notice to the Terminated Lender and the Agent (such
+notice referred to herein as a “Notice of Termination”).
+
+ 
+
+(b) In order to effect the termination of the Commitment of the Terminated
+Lender, the Borrowers shall (i) obtain an agreement with one or more Lenders to
+increase their Commitments and/or (ii) request any one or more other banking
+institutions to become a “Lender” in place and instead of such Terminated Lender
+and agree to accept a Commitment; provided, however, that such one or more other
+banking institutions are reasonably acceptable to the Agent and become parties
+hereto by executing an Assignment Agreement (the Lenders or other banking
+institutions that agree to accept in whole or in part the Commitment of the
+Terminated Lender being referred to herein as the “Replacement Lenders”), such
+that the aggregate increased and/or accepted Commitments of the Replacement
+Lenders under clauses (i) and (ii) immediately above equal the Commitment of the
+Terminated Lender.
+
+ 
+
+(c) The Notice of Termination shall include the name of the Terminated Lender,
+the date the termination will occur (the “Termination Date”), the Replacement
+Lender or Replacement Lenders to which the Terminated Lender will assign its
+Commitment, and, if there will be more than one Replacement Lender, the portion
+of the Terminated Lender’s Commitment to be assigned to each Replacement Lender.
+
+ 
+
+(d) On the Termination Date, (i) the Terminated Lender shall, by execution and
+delivery of an Assignment Agreement, assign its Commitment to the Replacement
+Lender or Replacement Lenders (pro rata, if there is more than one Replacement
+Lender, in proportion to the portion of the Terminated Lender’s Commitment to be
+assigned to each Replacement Lender) indicated in the Notice of Termination and
+shall assign to the Replacement Lender or Replacement Lenders its Percentage
+Share of the Loan Balance pro rata as aforesaid, (ii) the Terminated Lender
+shall endorse its Note, payable, without recourse, representation or warranty,
+to the order of the Replacement Lender or Replacement Lenders (pro rata as
+aforesaid), (iii) the Replacement Lender or Replacement Lenders shall purchase
+the Note held by the Terminated Lender (pro rata as aforesaid) at a price equal
+to the unpaid principal amount thereof plus interest and fees, if any, accrued
+and unpaid to the Termination Date and (iv) the Replacement Lender or
+Replacement Lenders will thereupon (pro rata as aforesaid) succeed to and be
+substituted in all respects for the Terminated Lender with like effect as if
+becoming a Lender pursuant to the terms of Section 9.1(b), and the Terminated
+Lender will have the rights and benefits of an assignor under Section 9.1(b). To
+the extent not in conflict, the terms of Section 9.1(b) shall supplement the
+provisions of this Section 2.14.
+
+  
+
+ - 37 -
+
+  
+
+ 
+
+(e) Any Terminated Lender shall reimburse the Borrowers for all reasonable and
+necessary fees and expenses of counsel to the Borrowers and, if required by the
+Replacement Lender or Replacement Lenders, of counsel to the Replacement Lender
+or Replacement Lenders in connection with replacing such Terminated Lender with
+a Replacement Lender or Replacement Lenders.
+
+ 
+
+2.15 Security Interest in Accounts; Right of Offset. As security for the payment
+and performance of the Obligations, the Borrowers hereby transfer, assign and
+pledge to the Agent and each Lender (for the pro rata benefit of all Lenders)
+and grant to the Agent and each Lender (for the pro rata benefit of all Lenders)
+a security interest in all funds of such Borrower now or hereafter or from time
+to time on deposit with the Agent or such Lender, with such interest of the
+Agent and the Lenders to be retransferred, reassigned and/or released at the
+expense of the Borrowers upon payment in full and complete performance by the
+Borrowers of all Obligations. All remedies as secured party or assignee of such
+funds shall be exercisable by the Agent and the Lenders with the oral consent
+(confirmed promptly in writing) of the Required Lenders upon the occurrence of
+any Event of Default, regardless of whether the exercise of any such remedy
+would result in any penalty or loss of interest or profit with respect to any
+withdrawal of funds deposited in a time deposit account prior to the maturity
+thereof. Furthermore, the Borrowers hereby grant to the Agent and each Lender
+(for the pro rata benefit of all Lenders) the right, exercisable at such time as
+any Obligation shall mature, whether by acceleration of maturity or otherwise,
+of offset or banker’s lien against all funds of such Borrowers now or hereafter
+or from time to time on deposit with the Agent or such Lender, regardless of
+whether the exercise of any such remedy would result in any penalty or loss of
+interest or profit with respect to any withdrawal of funds deposited in a time
+deposit account prior to the maturity thereof. If the foregoing provisions
+conflict with the provisions of any of the Security Documents, the relevant
+provision of the relevant Security Document shall control.
+
+ 
+
+2.16 Illegality. Notwithstanding any other provision of this Agreement, in the
+event that it becomes unlawful for any Lender or its Applicable Lending Office
+to maintain loans bearing interest at a rate determined by the Agent to exceed
+the Highest Lawful Rate, then the Agent shall charge an interest rate with
+respect to the Term Loan that will approximate the Contract Rate or Default
+Rate, as applicable, that was initially agreed to in this Agreement by the
+parties hereto as reasonably determined by the Agent such that the interest no
+longer exceeds the Highest Lawful Rate.
+
+ 
+
+2.17 Power of Attorney. The Borrowers hereby designate the Agent as its agent
+and attorney-in-fact, to act in its name, place and stead solely for the purpose
+of completing and delivering any and all of the letters in lieu of transfer or
+division orders delivered by such Borrowers pursuant to the provisions of clause
+(i) of Article III or Section 5.7, including completing any blanks contained in
+such letters and attaching exhibits thereto describing the relevant Collateral.
+The Borrowers hereby ratify and confirm all that the Agent shall lawfully do or
+cause to be done by virtue of this power of attorney and the rights granted with
+respect to such power of attorney. This power of attorney is coupled with the
+interest of the Agent and the Lenders in the Collateral, shall commence and be
+in full force and effect as of the Closing Date and shall remain in full force
+and effect and shall be irrevocable so long as any Obligations (other than
+Contingent Obligations with respect to which no claim has been made) remain
+outstanding. The powers conferred on the Agent by this appointment are solely to
+protect the interests of the Agent and the Lenders under the Loan Documents and
+Commodity Hedge Agreements with respect to the assignment of production proceeds
+under certain of the Security Documents and shall not impose any duty upon the
+Agent to exercise any such powers. The power of attorney under this Section 2.17
+is expressly limited to the rights and powers set forth herein and no additional
+rights or powers are herein created or implied. The Agent shall be accountable
+only for amounts that it actually receives as a result of the exercise of such
+powers and shall not be responsible to the Borrowers or any other Person for any
+act or failure to act with respect to such powers, except for gross negligence
+or willful misconduct.
+
+ 
+
+2.18 Keepwell. Each Qualified ECP Borrower hereby jointly and severally,
+absolutely, unconditionally and irrevocably undertakes to provide such funds or
+other support as may be needed from time to time by each other Borrower to honor
+all of its obligations in respect of Swap Obligations constituting a portion of
+the Obligations; provided, however, that each Qualified ECP Borrower shall only
+be liable under this Section 2.18 for the maximum amount of such liability that
+can be hereby incurred without rendering its obligations under this Section
+2.18, or otherwise hereunder or under any other Loan Document, voidable under
+applicable law relating to fraudulent conveyance or fraudulent transfer, and not
+of any greater amount. The obligations of each Qualified ECP Borrower under this
+Section 2.18 shall remain in full force and effect until the Obligations are
+paid and performed in full. Each Qualified ECP Borrower intends that this
+Section 2.18 constitute, and this Section 2.18 shall be deemed to constitute, a
+“keepwell, support or other agreement” for the benefit of each other Borrower
+for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
+Notwithstanding any other provisions of this Agreement or any other Loan
+Document, the Obligations owed by any Borrower or secured by any Lien granted by
+such Borrowers under any Loan Document shall exclude all Excluded Swap
+Obligations with respect to such Borrower.
+
+ 
+
+2.19 Joint and Several Liability. The Borrowers acknowledge and agree that each
+Borrower shall be jointly and severally liable for all obligations of the
+Borrowers or any of them hereunder or under any other Loan Document.
+
+  
+
+ - 38 -
+
+  
+
+ 
+
+ARTICLE III
+
+ 
+
+CONDITIONS
+
+ 
+
+3.1 Conditions of the Closing Date. The obligations of the Lenders to close this
+Agreement and to make the Term Loan, if any, is subject to the satisfaction of
+each of the following conditions:
+
+ 
+
+(a) Loan Documents. This Agreement, the Notes in favor of each Lender and the
+Agent fee letter, if applicable, together with any other applicable Loan
+Documents, shall have been duly authorized, executed and delivered to the Agent
+by the parties thereto, shall be in full force and effect and no Default or
+Event of Default shall exist hereunder or thereunder;
+
+ 
+
+(b) Security Documents. The Agent shall have received a counterpart of all other
+agreements, documents or instruments required by Agent in its sole discretion to
+evidence that first-priority security interests in all of the Borrowers’ assets
+(other than Excluded Assets) have been granted to Agent for the benefit of the
+Lenders pursuant to the Loan Documents, included without limitation, the
+Security Documents;
+
+ 
+
+(c) No Litigation. There shall exist no material unstayed action, suit,
+investigation, litigation or proceeding pending or (to the knowledge of the
+Borrowers) threatened in any court or before any arbitrator or governmental
+instrumentality;
+
+ 
+
+(d) Approvals. All government and third party approvals (including any consents)
+necessary in connection with continuing operations of the Borrowers and the
+transactions contemplated by the Loan Documents shall have been obtained and be
+in full force and effect (without the imposition of any adverse conditions that
+are not reasonably acceptable to the Lenders), and no law or regulation shall be
+applicable in the judgment of the Lenders that restrains, prevents or imposes
+materially adverse conditions upon this Agreement, the extension of credit
+thereunder or the transactions contemplated thereby;
+
+ 
+
+(e) Insurance. The Agent shall have received (i) a certificate of insurance
+coverage of the Borrowers evidencing that each Borrower is carrying insurance in
+accordance with Section 5.19, and (ii) and with respect to any real property on
+which a “building” or “mobile home” (in each case, as such terms are defined for
+purposes of the National Flood Insurance Program) is located, (A) a flood
+determination certificate or letter issued by the appropriate Governmental
+Authority or third party indicating whether such property is designated as a
+“flood hazard area” and (B) if such property is designated to be in a “flood
+hazard area”, evidence of flood insurance on such property obtained by the
+applicable Borrower in such total amount as required by Regulation H of the
+Federal Reserve Board, and all official rulings and interpretations thereunder
+or thereof, and otherwise in compliance with the National Flood Insurance
+Program as set forth in the Flood Disaster Protection Act of 1973;
+
+ 
+
+(f) Financial Statements; Projections. The Agent shall have received (i) the LOS
+Summary Sheets (as defined in the Acquisition Agreement) for the Purchased
+Entities (as defined in the Acquisition Agreement), and (ii) the financial
+projections (including the assumptions on which such projections are based) for
+fiscal years 2020 (including a breakdown on a monthly basis) and 2021 of the
+Borrowers certified by a Financial Officer of the Borrowers as being based upon
+estimates and assumptions stated therein, all of which the Borrowers believe to
+be reasonable and fair in light of conditions and facts known to the Borrowers
+as of the Closing Date and reflect the good faith, reasonable and fair estimates
+by the Borrowers of the future consolidated financial performance of the
+Borrowers and which will be consistent with the previously provided projections;
+provided that the actual results may differ from the projections and such
+differences might be material;
+
+  
+
+ - 39 -
+
+  
+
+ 
+
+(g) Organizational Documents. The Agent shall have received:
+
+ 
+
+(i) copies of the organizational documents of the Borrowers, accompanied by a
+certificate dated the Closing Date issued by the secretary or an assistant
+secretary or another authorized representative of the Borrowers, to the effect
+that each such copy is correct and complete;
+
+ 
+
+(ii) a certificate of incumbency dated the Closing Date, including specimen
+signatures of all officers or other representatives of the Borrowers, who are
+authorized to execute Loan Documents on behalf of the Borrowers, such
+certificate being executed by the secretary or an assistant secretary or another
+authorized representative of the relevant Borrower;
+
+ 
+
+(iii) copies of resolutions adopted by the relevant governing body of the
+Borrowers approving the Loan Documents to which the relevant Borrower is a party
+and authorizing the transactions contemplated herein and therein, accompanied by
+a certificate dated the Closing Date issued by the secretary or an assistant
+secretary or another authorized representative of the Borrowers, to the effect
+that such copies are true and correct copies of resolutions duly adopted at a
+meeting or by unanimous consent and that such resolutions constitute all the
+resolutions adopted with respect to such transactions, have not been amended,
+modified or rescinded in any respect and are in full force and effect as of the
+date of such certificate; and
+
+ 
+
+(iv) certificates dated as of a recent date from the appropriate Governmental
+Authority evidencing the existence or qualification and, if applicable, good
+standing of the Borrowers in its jurisdiction of organization and in each
+jurisdiction in which it owns material assets or conducts material operations;
+
+ 
+
+(h) Operating Documents. The Agent shall have received executed counterparts of
+all operating, lease, sublease, royalty, sales, exchange, processing, farmout,
+bidding, pooling, unitization, communitization and other agreements, including
+without limitation the Contract Operating Agreement, relating to the Oil and Gas
+Properties of the Borrowers or any one or more of them, each of which is
+described on Schedule 3.1(h) attached hereto;
+
+ 
+
+(i) Acquisition Documents. The Agent shall have received executed copies of all
+Acquisition Documents, and evidence reasonably satisfactory to the Agent and the
+Lenders that the closing of the acquisition contemplated thereunder has been
+consummated or will be consummated simultaneously with the closing of the Term
+Loans on the Closing Date in accordance with the terms of the Acquisition
+Agreement;
+
+ 
+
+(j) Reserve Report. The Agent shall have received an Initial Reserve Report, in
+form and substance acceptable to the Agent in its sole discretion, prepared as
+of September 1, 2019 confirming that the Borrowers own at least $54,000,000 in
+PDP Reserves;
+
+ 
+
+(k) Opinions of Counsel. The Lenders shall have received executed copies of the
+favorable written opinions of Jones Walker LLP, as counsel to the Borrowers, and
+Cory Reade Dows & Shafer, special Nevada counsel to Holdings, each dated as of
+the Closing Date and covering such matters as the Agent may reasonably request
+and otherwise in form and substance reasonably satisfactory to the Agent (and
+each Borrower hereby instructs such counsel to deliver such opinions to the
+Agent and the Lenders);
+
+   
+
+ - 40 -
+
+  
+
+ 
+
+(l) Equity Contribution. The Agent shall have received evidence that a cash
+contribution, in an aggregate amount of not less than $7,000,000, inclusive of
+the $2,750,000 already contributed by Viking toward the Acquisition, has been
+made by or on behalf of Holdings to or for the benefit of Elysium, and that such
+contribution is treated as equity in Elysium;
+
+ 
+
+(m) Closing Certificate. The Agent shall have received a certificate of a
+Responsible Officer of the Borrowers to the effect that, after giving effect to
+the transactions which are the subject of this Agreement, all representations
+and warranties made by the Borrowers in this Agreement or any other Loan
+Documents in place on the Closing Date are true and correct, in all material
+respects, as of the Closing Date;
+
+ 
+
+(n) Hedging Agreements. The Agent shall have received copies of all Commodity
+Hedge Agreements, in form and substance reasonably acceptable to the Agent and
+with Approved Hedge Counterparties, establishing the Minimum Required Commodity
+Hedge Agreements;
+
+ 
+
+(o) Searches. The Agent shall have received searches as of a recent date prior
+to the Closing Date of UCC, judgment lien, tax lien and litigation search
+reports in the jurisdiction of the chief executive office of Holdings and each
+of the Borrowers and each jurisdiction where any Collateral is located or where
+a filing would need to be made in order to perfect the Agent’s security interest
+in the Collateral, copies of the financing statements and liens on file in such
+jurisdictions and evidence that no Liens exist thereon other than Permitted
+Liens;
+
+ 
+
+(p) Direction Letters. The Agent shall have received the Direction Letters (as
+executed only by one or more of the Borrowers) for each purchaser of production
+set forth on Schedule 3.1(p) attached hereto;
+
+ 
+
+(q) Letters in Lieu. The Agent shall have received undated letters in lieu of
+transfer, in form and substance reasonably satisfactory to the Agent, executed
+by the relevant Borrower and addressed to each purchaser of production from or
+attributable to the Mortgaged Properties or transportation fees, with the
+addresses for payment left blank, authorizing and directing the addressee to
+make future payments attributable to production from the Mortgaged Properties,
+and/or transportation fees to such account as the Agent may specify from time to
+time;
+
+ 
+
+(r) No Material Adverse Effect. The Agent shall have received confirmation
+reasonably acceptable to the Agent that no event or circumstance shall have
+occurred which could reasonably be expected to have a Material Adverse Effect or
+adverse change in loan syndication, financial, banking or capital market
+conditions;
+
+    
+
+(s) Due Diligence. The Agent shall have completed due diligence review,
+including, but not limited to, the review of the Acquisition Agreement, all
+engineering, operations, land, title, environmental equity interest agreements,
+cash management systems, satisfactory review of the operating agreements,
+marketing agreements, employment agreements with senior executives,
+transportation agreements and processing agreements and financial data of each
+Borrower and its assets, in scope and determination satisfactory to the Agent in
+its sole discretion;
+
+  
+
+ - 41 -
+
+  
+
+ 
+
+(t) Borrowing Request. The Agent shall have received a duly executed Borrowing
+Request;
+
+ 
+
+(u) Investment Committee Approval. The Agent shall have received approval by its
+investment committee;
+
+ 
+
+(v) Background Checks. The Agent shall have received the background and credit
+checks on the Borrowers and certain senior executives;
+
+ 
+
+(w) KYC. The Lenders and the Agent shall have received all documentation and
+other information required by Governmental Authorities under applicable “know
+your customer” and anti-money laundering rules and regulations, including,
+without limitation, a duly executed W-9 tax form (or such other applicable IRS
+tax form) for each Borrower;
+
+ 
+
+(x) Payment of Fees. The Agent and the Lenders shall have received evidence of
+payment by the Borrowers to the Agent of all accrued and unpaid fees, costs and
+expenses payable thereto or to the Agent or any Lender pursuant to the Loan
+Documents or otherwise required to be paid to the Agent and the Lenders, and in
+the case of costs and expenses, an invoice for which has been received by the
+Borrowers at least one Business Day before the date of such Term Loan, including
+any such costs, fees and expenses arising under or referenced in the Agent fee
+letter; and
+
+ 
+
+(y) Other Documents. The Agent shall have received such other agreements,
+documents, instruments, opinions, certificates, waivers, consents and evidences
+as the Agent or any Lender may reasonably request.
+
+    
+
+ 
+
+ARTICLE IV
+
+ 
+
+REPRESENTATIONS AND WARRANTIES
+
+ 
+
+To induce the Agent and the Lenders to enter into this Agreement and to induce
+the Lenders to make the Term Loan, the Borrowers represent and warrant to the
+Agent and each Lender (which representations and warranties shall survive the
+delivery of the Notes) that:
+
+ 
+
+4.1 Due Authorization. The execution and delivery by the Borrowers of this
+Agreement and the borrowing hereunder, the execution and delivery by the
+Borrowers of the Notes, the repayment of the Notes, payment of interest and fees
+provided for in the Notes and this Agreement, the execution and delivery by each
+Borrower of the Security Documents to which it is a party and the performance by
+each Borrower of its obligations under the Loan Documents to which it is a party
+are within the power of the relevant Borrower, have been duly authorized by all
+necessary action by the relevant Borrower, and do not and will not (a) require
+the consent of any Governmental Authority, (b) contravene or conflict with any
+Requirement of Law, (c) contravene or conflict with any indenture, instrument or
+other agreement to which the relevant Borrower is a party or by which any
+Property of the relevant Borrower may be presently bound or encumbered or (d)
+result in or require the creation or imposition of any Lien in, upon or on any
+Property of the relevant Borrower under any such indenture, instrument or other
+agreement, other than under any of the Loan Documents to which it is a party.
+
+   
+
+ - 42 -
+
+  
+
+ 
+
+4.2 Existence. Each Borrower is a corporation, limited liability company or
+limited partnership, as the case may be, duly organized, legally existing and,
+if applicable, in good standing under the laws of its jurisdiction of
+organization and is duly qualified as a foreign corporation, foreign limited
+partnership, or foreign limited liability company, as the case may be, and, if
+applicable, is in good standing in all jurisdictions wherein the ownership of
+Property or the operation of its business necessitates same, other than those
+jurisdictions wherein the failure to so qualify would not have a Material
+Adverse Effect.
+
+ 
+
+4.3 Valid and Binding Obligations. All Loan Documents to which a Borrower is a
+party, when duly executed and delivered by the relevant Borrower, constitute the
+legal, valid and binding obligations of the relevant Borrower enforceable
+against such Borrower in accordance with their respective terms, subject to
+applicable bankruptcy, insolvency, reorganization, moratorium or other laws
+affecting creditors’ rights generally and subject to general principles of
+equity, regardless of whether considered in a proceeding in equity or at law.
+
+ 
+
+4.4 Security Documents. The provisions of each Security Document executed by the
+Borrowers are effective to create, in favor of the Agent, a legal, valid and
+enforceable Lien in all right, title and interest of the relevant Borrower in
+the Property of such Borrower described therein, which Lien constitutes a
+first-priority Lien upon filing with the appropriate government office (except
+as to Permitted Liens) on all right, title and interest of the relevant Borrower
+in the Property of such Borrower described therein.
+
+ 
+
+4.5 Title to Property. (a) Except for such encumbrances, preferential rights,
+whether vested or otherwise, and Liens (except Permitted Liens) set forth on
+Schedule 4.5A attached hereto, each Borrower has good and defensible title to
+all of its material Property, free and clear of all encumbrances, preferential
+rights, whether vested or otherwise, and Liens (except Permitted Liens) related
+to such Property. Schedule 4.5B attached hereto sets forth a correct and
+complete list as of the Closing Date of the location, by state and street
+address, of all Real Property owned or leased by each Borrower, together with
+the names and addresses of any landlords. Subject to the Permitted Liens, and
+subject to any consent or nonconsent elections after the date hereof affecting
+such Borrower’s Hydrocarbon Interests, each such Borrower owns at least the net
+interests in production attributable to its Hydrocarbon Interests as reflected
+in the exhibits to the Mortgages, and the ownership of such Properties shall not
+in any material respect obligate such Borrower to bear the costs and expenses
+relating to the maintenance, development and operations of each Property in an
+amount in excess of its working interest in each Property that is not offset by
+a corresponding proportionate increase in such Borrower’s net revenue interest
+in such Property.
+
+ 
+
+(b) To each Borrower’s knowledge, all material leases and agreements necessary
+for the conduct of the business of such Borrower are valid and subsisting, in
+full force and effect, and, to such Borrower’s knowledge, there exists no
+material default or event or circumstance which with the giving of notice or the
+passage of time or both would give rise to a material default under any such
+lease or leases.
+
+    
+
+ - 43 -
+
+  
+
+ 
+
+(c) To each Borrower’s knowledge, the rights and Properties presently owned,
+leased or licensed by such Borrower, including without limitation, all easements
+and rights of way, include all material rights and Properties reasonably
+necessary to permit such Borrower to conduct its business.
+
+ 
+
+(d) To each Borrower’s knowledge, except as set forth on Schedule 4.5C, such
+Borrower’s Oil and Gas Properties (if any) (and any Property unitized therewith)
+have been maintained, operated and developed in a good and workmanlike manner
+and in conformity with all Requirements of Law and in conformity with the
+provisions of all leases, subleases or other contracts comprising a part of such
+Borrower’s Hydrocarbon Interests and other contracts and agreements forming a
+part of such Borrower’s Oil and Gas Properties, in each case, in all material
+respects. Specifically in connection with the foregoing and except as in each
+case could not reasonably be expected to have a Material Adverse Effect, (i) no
+Oil and Gas Property of any Borrower is subject to having allowable production
+reduced below the full and regular allowable level (including the maximum
+permissible tolerance) because of any overproduction (whether or not the same
+was permissible at the time), (ii) none of the wells comprising a part of any
+Borrower’s Oil and Gas Properties (or any Property unitized therewith) is
+deviated from the vertical more than the maximum permitted by Requirements of
+Law, and such wells are, in fact, bottomed under and are producing from, and the
+well bores are wholly within, or otherwise are legally located within, such
+Borrower’s Oil and Gas Properties (or in the case of wells located on Properties
+unitized therewith, such unitized Properties), (iii) as of the Closing Date, no
+Borrower had any plug and abandonment liabilities associated with its or another
+Person’s Oil and Gas Properties, including, without limitation, the bonding or
+collateralization obligations of such Borrower associated therewith and (iv) as
+of the Closing Date, no amounts are owing under any joint operating agreement or
+similar arrangement with respect to the Borrowers’ Oil and Gas Properties, in
+each case except as set forth on Schedule 4.5C.
+
+ 
+
+4.6 Scope and Accuracy of Financial Statements. The draft consolidated Financial
+Statements provided to the Agent in satisfaction of the condition set forth in
+Section 3.1(f) present fairly (subject to normal year-end audit adjustments) the
+financial position and results of operations and cash flows of the Borrowers on
+a consolidated basis, in accordance with GAAP as at the relevant point in time
+or for the period indicated, as applicable. Schedule 4.6 attached hereto
+identifies all accounts payable, other than those arising in the ordinary course
+of business which are not more than 30 day past due, of each Borrower.
+
+ 
+
+4.7 No Material Adverse Effect or Default. No event or circumstance has occurred
+since December 31, 2019, which could reasonably be expected to have a Material
+Adverse Effect, and no Default or Event of Default has occurred and is
+continuing.
+
+ 
+
+4.8 No Material Misstatements. No information, exhibit, statement or report
+furnished to the Agent or any Lender by or at the direction of the Borrowers in
+connection with this Agreement or any other Loan Document contains any material
+misstatement of fact or omits to state a material fact or any fact necessary to
+make the statements contained therein not misleading as of the date made or
+deemed made; provided that, with respect to projected financial information, it
+represents only that such information was prepared in good faith based upon
+assumptions believed to be reasonable at the time.
+
+  
+
+ - 44 -
+
+  
+
+ 
+
+4.9 Liabilities, Litigation and Restrictions. Other than as reflected in the
+Financial Statements prepared as of December 31, 2019 or as listed on Schedule
+4.9 under the heading “Liabilities”, no Borrower has any liabilities, including,
+without limitation, tax liabilities, direct or contingent, which could
+reasonably be expected to have a Material Adverse Effect. Except as set forth
+under the heading “Litigation” on Schedule 4.9, no litigation or other action of
+any nature involving any Borrower is pending before any Governmental Authority
+or, to the best knowledge of each Borrower, threatened against or involving such
+Borrower which might reasonably be expected to result in any impairment of its
+ownership of any of its Property or have a Material Adverse Effect.
+
+ 
+
+4.10 Authorizations; Consents. Except as expressly contemplated by this
+Agreement or set forth on Schedule 4.10 attached hereto, no authorization,
+consent, approval, exemption, franchise, permit or license of, or filing with,
+any Governmental Authority or any other Person is required to authorize or is
+otherwise required in connection with the valid execution and delivery by the
+Borrowers of the Loan Documents to which it is a party or any instrument
+contemplated hereby, the repayment by the Borrowers of the Notes, payment of
+interest and fees provided in the Notes and this Agreement or the performance by
+the Borrowers of the Obligations.
+
+ 
+
+4.11 Compliance with Laws. Each Borrower and its Property are in compliance in
+all material respects with all applicable Requirements of Law, including
+Environmental Laws and ERISA.
+
+ 
+
+4.12 ERISA. No Borrowers maintain, nor have the Borrowers maintained, any Plan.
+No Borrowers currently contribute to or have any obligation to contribute to or
+otherwise have any liability with respect to any Plan.
+
+ 
+
+4.13 Environmental Laws. Except as disclosed on Schedule 4.13 attached hereto:
+
+ 
+
+(a) no Property of the Borrowers (including, but not limited to, the Oil and Gas
+Properties) is currently on or has ever been on any federal or state list of
+Superfund Sites;
+
+ 
+
+(b) other than as set forth on Schedule 4.10, the Borrowers have obtained all
+Environmental Permits required for the occupation of their respective Properties
+and operation of their businesses, with all such Environmental Permits being
+currently in full force and effect, and no Borrower has received any written
+notice or otherwise knowledge that any such existing Environmental Permit will
+be revoked or modified in any material respect or that any application for any
+new Environmental Permit or renewal of any existing Environmental Permit will be
+protested or denied;
+
+ 
+
+(c) no Hazardous Substances have been generated, transported and/or disposed of
+by the Borrowers at a site which was, at the time of such generation,
+transportation, and/or disposal, or has since become, a Superfund Site;
+
+  
+
+ - 45 -
+
+  
+
+ 
+
+(d) except in accordance with applicable Requirements of Law or the terms of a
+valid permit, license, certificate or approval of the relevant Governmental
+Authority, no Release of Hazardous Substances by the Borrowers or from,
+affecting or related to the Oil and Gas Properties or any Property of the
+Borrowers has occurred;
+
+ 
+
+(e) to each Borrower’s knowledge, there has been no exposure of any Person or
+Property to any Hazardous Substances as a result of or in connection with the
+Borrowers or operations and businesses of any Borrower’s Properties that could
+be expected to form the basis for an Environmental Compliant and, to each
+Borrower’s knowledge, there are no conditions or circumstances that could be
+expected to result in the receipt of notice regarding such exposure;
+
+ 
+
+(f) no Borrower has assumed, provided an indemnity with respect to or otherwise
+become subject to any liability of any other Person under Environmental Laws or
+with respect to Hazardous Substances;
+
+ 
+
+(g) the Borrowers have provided to the Agent complete and correct copies of all
+environmental site assessment reports, investigations, studies, analyses, and
+correspondence on environmental matters (including matters related to any
+alleged non-compliance with or liability under Environmental Laws) that are in
+each Borrower’s possession or control and relating to any Borrower’s Properties
+or operations thereon; and
+
+ 
+
+(h) to each Borrower’s knowledge, no Environmental Complaint has been received
+by the Borrowers.
+
+ 
+
+4.14 Compliance with Federal Reserve Regulations. No transaction contemplated by
+the Loan Documents is in violation of any regulations promulgated by the Board
+of Governors of the Federal Reserve System, including Regulations T, U or X.
+
+ 
+
+4.15 Investment Company Act Compliance. None of the Borrowers are, nor is any
+Borrower directly or indirectly controlled by or acting on behalf of any Person
+which is, an “investment company” or an “affiliated person” of an “investment
+company” within the meaning of the Investment Company Act of 1940.
+
+ 
+
+4.16 Proper Filing of Tax Returns; Payment of Taxes Due. Each Borrower has duly
+and properly filed its United States of America income tax returns or income tax
+information returns, and all other tax returns which are required to be filed by
+the Borrowers, as applicable, and has paid all taxes, if any, shown as due from
+the Borrowers, as applicable, except where appropriate extensions have been
+filed or except such as are being contested in good faith and as to which
+adequate provisions and disclosures have been made or as could not reasonably be
+expected to have a Material Adverse Effect. The respective charges and reserves
+on the books of the Borrowers with respect to Taxes and other governmental
+charges, if any of such are required by applicable law or GAAP, are adequate,
+except as could not reasonably be expected to have a Material Adverse Effect.
+
+ 
+
+4.17 Refunds. Except as described on Schedule 4.17, no orders of, proceedings
+pending before, or other requirements of, the Federal Energy Regulatory
+Commission or any other Governmental Authority exist which could result in the
+Borrowers being required to refund any portion of the proceeds received or to be
+received from the sale of Hydrocarbons constituting part of the Mortgaged
+Property or other Oil and Gas Properties owned by it.
+
+  
+
+ - 46 -
+
+  
+
+    
+
+4.18 Gas Contracts. Except as described on Schedule 4.18, (a) none of the
+Borrowers are obligated, in any material respect, by virtue of any prepayment
+made under any contract containing a “take-or-pay” or “prepayment” provision or
+under any similar agreement to deliver Hydrocarbons produced from or allocated
+to any of the Mortgaged Properties or other Oil and Gas Properties owned by it
+at some future date without receiving full payment therefor within 90 days of
+delivery and (b) none of Borrowers have produced gas, in any material amount,
+subject to, and neither the Borrowers nor any of the Mortgaged Properties or
+other Oil and Gas Properties are subject to, balancing rights of third parties
+or subject to balancing duties under Requirements of Law, except (i) as to such
+matters for which the relevant Borrower has, to the extent required by GAAP,
+established monetary reserves adequate in amount to satisfy such obligations and
+segregated such reserves from other accounts or (ii) as could not reasonably be
+expected to have a Material Adverse Effect.
+
+ 
+
+4.19 Intellectual Property. Each of the Borrowers owns or is licensed to use all
+Intellectual Property necessary to conduct all business material to its
+condition (financial or otherwise), business or operations as such business is
+currently conducted. No claim has been asserted or is pending by any Person with
+respect to the use by the Borrowers of any such Intellectual Property or
+challenging or questioning the validity or effectiveness of any such
+Intellectual Property; and no Borrowers know of any valid basis for any such
+claim. The use of such Intellectual Property by the relevant Borrower does not
+infringe on the rights of any Person.
+
+ 
+
+4.20 Casualties or Taking of Property. Since December 31, 2019, neither the
+business nor any Property of any Borrower has been materially and adversely
+affected as a result of any casualty or taking of Property or cancellation of
+contracts, permits or concessions by any Governmental Authority, riot,
+activities of armed forces or acts of God.
+
+ 
+
+4.21 Location of Borrowers. The principal place of business and chief executive
+office of each Borrower is located at the address of such Borrower set forth in
+Section 9.3 or at such other location as such Borrower may have, by proper
+written notice hereunder, advised the Agent, provided that such other location
+is within a state in which appropriate financing statements naming such Borrower
+as debtor and naming Agent as secured party, have been filed, if required by
+applicable law.
+
+ 
+
+4.22 Subsidiaries. Except as set forth on Schedule 4.22A, no Borrower has any
+Subsidiaries. Schedule 4.22B sets forth a true and correct organizational chart
+of Holdings and the Borrowers.
+
+ 
+
+4.23 Compliance with Anti-Terrorism Laws. No Borrower nor any Affiliate of any
+Borrower is in violation of any Anti-Terrorism Law or knowingly engages in or
+conspires to engage in any transaction that evades or avoids, or has the purpose
+of evading or avoiding, or attempts to violate, any of the prohibitions set
+forth in any Anti-Terrorism Law.
+
+  
+
+ - 47 -
+
+  
+
+ 
+
+(a) No Borrower nor any Affiliate of any Borrower is any of the following (each
+a “Blocked Person”):
+
+ 
+
+(i) a Person that is listed in the annex, to, or is otherwise subject to the
+provisions of, Executive Order No. 13224;
+
+ 
+
+(ii) a Person owned or controlled by, or acting for or on behalf of, any Person
+that is listed in the annex to, or is otherwise subject to the provisions of,
+Executive Order No. 13224;
+
+ 
+
+(iii) a Person or entity with which any bank or other financial institution is
+prohibited from dealing or otherwise engaging in any transaction by any
+Anti-Terrorism Law;
+
+ 
+
+(iv) a Person or entity that commits, threatens or conspires to commit or
+supports “terrorism” as defined in Executive Order No. 13224;
+
+ 
+
+(v) a Person or entity that is named as a “specially designated national” on the
+most current list published by OFAC at its official website or any replacement
+website or other replacement official publication of such list; or
+
+ 
+
+(vi) a Person or entity who is affiliated with a Person or entity listed above.
+
+ 
+
+(b) None of the Borrowers nor any Affiliate of the Borrowers (i) conducts any
+business or engages in making or receiving any contribution of funds, goods or
+services to or for the benefit of any Blocked Person or (ii) deals in, or
+otherwise engages in any transaction relating to, any Property or interests in
+Property blocked pursuant to Executive Order No. 13224.
+
+ 
+
+(c) None of the Borrowers nor any Affiliate of the Borrowers are in violation of
+any rules or regulations promulgated by OFAC or of any economic or trade
+sanctions administered and enforced by OFAC or conspires to engage in any
+transaction that evades or avoids, or has the purpose of evading or avoiding, or
+attempts to violate, any of the prohibitions set forth in any rules or
+regulations promulgated by OFAC.
+
+ 
+
+4.24 Identification Numbers. The federal employer identification number of each
+Borrower and its organizational number with appropriate Governmental Authorities
+are as set forth on Schedule 4.24.
+
+ 
+
+4.25 Solvency. Each Borrower is Solvent. No transfer or property is being made
+by any Borrower and no obligation is being incurred by any Borrower in
+connection with the transactions contemplated by this Agreement or the other
+Loan Documents with the intent to hinder, delay or defraud either present or
+future creditors of such Borrower.
+
+  
+
+4.26 Related Party Transactions. Except as set forth on Schedule 4.26 attached
+hereto, (i) none of the Borrowers are party to or bound by any agreement,
+contract, whether written or oral, or other instrument with any person or entity
+that is controlled by, whether directly or indirectly, or in common control with
+or by one or more of the members of such Borrower, and (ii) none of the
+Properties owned by the Borrowers are subject to any agreement that grants an
+interest in and to such Properties to any person or entity that is controlled
+by, whether directly or indirectly, or in common control with or by one or more
+of the members of such Borrower.
+
+  
+
+ - 48 -
+
+  
+
+ 
+
+4.27 Material Contracts. Set forth on Schedule 4.27A is a true and complete
+listing of all Material Contracts. As of the Closing Date, except as set forth
+on Schedule 4.27B, all Material Contracts are in full force and effect (other
+than any Material Contract that has expired in accordance with its terms) and,
+to each Borrower’s knowledge, no defaults exist thereunder.
+
+ 
+
+4.28 Employee Matters. Except as, individually or in the aggregate, could not
+reasonably be expected to have a Material Adverse Effect;
+
+ 
+
+(a) The Borrowers, and their respective employees, agents and representatives
+have not committed any material unfair labor practice as defined in the National
+Labor Relations Act.
+
+ 
+
+(b) There has been and is (i) no unfair labor practice charge or complaint
+pending against any Borrower, or to the best knowledge of any Borrower,
+threatened against any of them before the National Labor Relations Board or any
+other Governmental Authority and no grievance or arbitration proceeding arising
+out of or under any collective bargaining agreement or similar agreement that is
+so pending against any Borrower or to the best knowledge of any Borrower,
+threatened against any of them, (ii) no labor dispute, strike, lockout, slowdown
+or work stoppage in existence or threatened against, involving or affecting any
+Borrower, (iii) no labor union, labor organization, trade union, works council,
+or group of employees of any Borrower has made a pending demand for recognition
+or certification, and there are no representation or certification proceedings
+or petitions seeking a representation proceeding presently pending or threatened
+to be brought or filed with the National Labor Relations Board or any other
+Governmental Authority, and (iv) to the best knowledge of each Borrower, no
+union representation question existing with respect to any of the employees of
+any Borrower and, to the best knowledge of such Borrower, no labor union
+organizing activity with respect to any employees of any Borrower that is taking
+place.
+
+ 
+
+4.29 Brokers. No broker’s or finder’s fee or commission will be payable with
+respect hereto or any of the Acquisition Documents, except as disclosed on
+Schedule 4.29.
+
+ 
+
+4.30 Separate Entity. Each Borrower (a) has taken all necessary steps to
+maintain the separate status and records of such Borrower, (b) does not
+commingle any assets or business functions with any other Person (other than any
+other Borrower and its consolidated Subsidiaries), (c) maintains separate
+financial statements from all other Persons (other than other Borrowers and
+their consolidated Subsidiaries), (d) has not assumed or guaranteed the debts,
+liabilities or obligations of others, (e) holds itself out to the public and
+creditors as an entity separate from all other Persons (other than other
+Borrowers), (f) has not committed any fraud or misuse of the separate entity
+legal status or any other injustice or unfairness, (g) has not maintained their
+assets in such a manner that it will be costly or difficult to segregate,
+ascertain or identify its individual assets from those of its stockholders, (h)
+has not failed in any material respect to hold appropriate meetings (or act by
+unanimous written consent) to authorize all appropriate actions, or failed in
+any material respect in authorizing such actions, to observe all formalities
+required by the laws of the States of Texas, Delaware, Louisiana or Nevada, as
+applicable, relating to limited liability companies, or fail to observe in any
+material respect any formalities required by its organizational documents and
+(i) has not held itself out to be responsible for the debts of another Person.
+
+   
+
+ - 49 -
+
+  
+
+ 
+
+4.31 Marketing of Production. Except for agreements listed on Schedule 4.31 or
+either consented to by the Agent after the date hereof, if at any time a
+Borrower owns Oil and Gas Properties, no material agreements exist that are not
+cancelable by the applicable Borrower on 60 days’ notice or less without penalty
+or detriment for the sale of production from any Borrower’s Hydrocarbons
+(including, without limitation, calls on or other rights to purchase,
+production, whether or not the same are currently being exercised) that (i)
+pertain to the sale of production at a fixed price and (ii) have a maturity or
+expiry date of longer than six (6) months from the date hereof.
+
+ 
+
+4.32 Acquisition Agreement. The Acquisition Agreement has not been amended or
+otherwise modified except as disclosed to the Agent in writing. Except as set
+forth on Schedule 4.9 attached hereto, no litigation or other action of any
+nature involving the Acquisition Properties is pending before any Governmental
+Authority and no such litigation or other action is threatened against or
+involving the Acquisition Properties.
+
+ 
+
+ARTICLE V
+
+ 
+
+AFFIRMATIVE COVENANTS
+
+ 
+
+So long as any Obligation remains outstanding or unpaid, the Borrowers shall:
+
+ 
+
+5.1 Maintenance and Access to Records. Keep adequate records, in accordance with
+GAAP, of all of their transactions so that at any time, and from time to time,
+the Borrowers true and complete financial condition may be readily determined,
+and promptly following the reasonable request of the Agent or any Lender, make
+such records available for inspection by the Agent or any Lender and, at the
+expense of the Borrowers, allow the Agent or any Lender to make and take away
+copies thereof.
+
+ 
+
+5.2 Monthly Unaudited Financial Statements and Compliance Certificates. Deliver
+to the Agent, on or before the forty-fifth (45th) day after the close of each
+fiscal month commencing with the month ending February 29, 2020, (a) a copy of
+the Financial Statements as of the close of the relevant fiscal month and from
+the first day of the then current fiscal year to the end of the relevant fiscal
+month, such Financial Statements to be certified by the Financial Officer of the
+Borrowers as having been prepared by the Borrowers in accordance with GAAP
+consistently applied and as a fair presentation of the financial condition of
+the Borrowers (including without limitation the reporting of the General and
+Administrative Costs described under Section 5.25), which shall include
+comparative figures and analysis based on the projections delivered under
+Section 5.4(g), on a consolidated basis, subject to changes resulting from
+normal year-end audit adjustments, and (b) a Compliance Certificate prepared, as
+to Section 3 thereof, as of the close of the relevant fiscal month or quarterly
+period, as applicable, and executed by the Financial Officer of the Borrowers.
+
+  
+
+ - 50 -
+
+  
+
+ 
+
+5.3 Annual Audited Financial Statements and Compliance Certificate. Deliver to
+the Agent, on or before the one hundred twentieth (120th) day after the close of
+each fiscal year of the Borrowers, commencing with the fiscal year ending on
+December 31, 2020, (a) a copy of the audited Financial Statements as of the
+close of such fiscal year and for the fiscal year then ended, audited by a full
+service accounting firm of regional or national reputation having a dedicated
+oil and gas audit practice and approved by the Agent in writing, and (b) a
+Compliance Certificate prepared, as to Section 3 thereof, as of the close of the
+end of the relevant fiscal year.
+
+ 
+
+5.4 Reserve Reports; LOE Reports; Production Reports; Payables Aging; Additional
+Development Plans and Financial Projections.
+
+ 
+
+(a) Deliver to the Agent, no later than each August 15th beginning in 2020
+during the term of this Agreement, a Reserve Report, in form and substance
+satisfactory to the Agent, prepared as of the preceding June 30th and certified
+by the Reserve Engineer preparing the relevant Reserve Report as fairly and
+accurately setting forth (i) the PDP, PUD, shut-in, behind-pipe and undeveloped
+Reserves (separately classified as such) attributable to the Mortgaged
+Properties and other Oil and Gas Properties of the Borrowers, (ii) the aggregate
+PV-10 value of the future net income with respect to PDP Reserves attributable
+to the Mortgaged Properties and other Oil and Gas Properties of the Borrowers,
+(iii) projections of the annual rate of production, gross income and net income
+with respect to such PDP Reserves, (iv) information with respect to the
+“take-or-pay,” “prepayment” and gas-balancing liabilities of the Borrowers with
+respect to such PDP Reserves and (v) general economic assumptions.
+
+ 
+
+(b) Deliver to the Agent, no later than each February 15th during the term of
+this Agreement, a Reserve Report, in substantially the format of and providing
+the information provided in the Reserve Reports provided pursuant to Section
+5.4(a), prepared as of the preceding December 31st and certified by the Reserve
+Engineer as fairly and accurately setting forth the information provided
+therein.
+
+ 
+
+(c) Deliver to the Agent, no later than the 45th day following the end of each
+fiscal month, a report, in form reasonably satisfactory to the Agent, setting
+forth information as to quantities of production from the Mortgaged Properties,
+volumes of production sold, volumes of production committed to Commodity Hedge
+Agreements, pricing, purchasers of production, gross revenues, lease operating
+expenses and such other information as the Agent or any Lender may request with
+respect to the relevant monthly period.
+
+ 
+
+(d) Deliver to the Agent, no later than the 45th day after the end of each
+fiscal month, an aging of the accounts payable of the Borrowers, on a
+consolidated basis, at the end of the relevant monthly period.
+
+ 
+
+(e) Deliver to the Agent, no later than the 45th day after the end of each
+fiscal month, a current reporting of the activities with respect to the Oil and
+Gas Properties of any of the Borrowers setting forth the details of such
+activities and a comparison of the activities set forth in the Development Plan
+delivered pursuant to clause (f) below as of the end of the relevant monthly
+period.
+
+  
+
+ - 51 -
+
+  
+
+ 
+
+(f) Deliver to the Agent, no later than December 31st of each year, a
+Development Plan, in form acceptable to the Agent in its sole discretion,
+setting forth proposed activities with respect to the Oil and Gas Properties of
+the Borrowers or any of them during the subsequent fiscal year.
+
+ 
+
+(g) Deliver to the Agent, no later than December 31st of each year, financial
+projections for the Borrowers, on a consolidated basis, as at the close of each
+month of the subsequent fiscal year, which financial projections shall be
+presented in the form of Financial Statements.
+
+ 
+
+5.5 Title Opinions; Title Defects; Mortgaged Properties.
+
+ 
+
+(a) Promptly upon the request of the Agent, furnish to the Agent title opinions,
+in form and by counsel reasonably satisfactory to the Agent, or other
+confirmation of title reasonably acceptable to the Agent, covering Oil and Gas
+Properties of the relevant Borrower.
+
+ 
+
+(b) Promptly, but in any event within 30 days after notice by the Agent of any
+title defect having a Material Adverse Effect, clear such title defect.
+
+ 
+
+(c) Promptly upon the request of the Agent, execute and deliver to the Agent
+additional Security Documents as necessary to maintain, as Mortgaged Properties,
+Oil and Gas Properties of the Borrowers the PV-10 value of the Proved Reserves
+attributable to which, in the aggregate, equals at least one hundred percent
+(100%) of the Total Proved Reserves reflected in the Reserve Report most
+recently provided to the Agent pursuant to the provisions of Section 5.4.
+
+ 
+
+5.6 Notices of Certain Events. Deliver to the Agent, immediately upon having
+knowledge of the occurrence of any of the following events or circumstances, a
+written statement with respect thereto, signed by a Responsible Officer of the
+Borrowers, and setting forth the relevant event or circumstance and the steps
+being taken by the relevant Borrower with respect to such event or circumstance:
+
+ 
+
+(a) any Default or Event of Default;
+
+ 
+
+(b) any default or event of default under any contractual obligation of any
+Borrower, or any litigation, investigation or proceeding between such Borrower
+and any Governmental Authority which, in either case, if not cured or if
+adversely determined, as the case may be, could reasonably be expected to have a
+Material Adverse Effect;
+
+ 
+
+(c) any litigation or proceeding involving any Borrower as a defendant or in
+which any Property of any Borrower is subject to a claim and in which the amount
+involved is $25,000 or more and which is not covered by insurance or in which
+injunctive or similar relief is sought;
+
+  
+
+ - 52 -
+
+  
+
+ 
+
+(d) the receipt by senior management of the Borrowers of any Environmental
+Complaint, which if adversely determined could reasonably be expected to have a
+Material Adverse Effect;
+
+ 
+
+(e) any actual, proposed or threatened testing or other investigation by any
+Governmental Authority or other Person concerning the environmental condition
+of, or relating to, any Property of the Borrowers following any allegation of a
+violation of any Requirement of Law;
+
+ 
+
+(f) any Release of Hazardous Substances by the Borrowers or from, affecting or
+related to any Property of the Borrowers or Property of others adjacent to
+Property of the Borrowers which could reasonably be expected to have a Material
+Adverse Effect, except in accordance with applicable Requirements of Law or the
+terms of a valid permit, license, certificate or approval of the relevant
+Governmental Authority, or the violation of any Environmental Law, or the
+revocation, suspension or forfeiture of or failure to renew, any permit,
+license, registration, approval or authorization which could reasonably be
+expected to have a Material Adverse Effect;
+
+ 
+
+(g) James A. Doris ceases to be part of the senior management of the Borrowers;
+
+ 
+
+(h) the filing or commencement of any action, suit, proceeding, or arbitration
+by or on behalf of any Borrower claiming or asserting damages in favor of such
+Borrower in an amount in excess of $500,000; and
+
+ 
+
+(i) any other event or condition which could reasonably be expected to have a
+Material Adverse Effect.
+
+ 
+
+5.7 Letters in Lieu of Transfer Orders or Division Orders. Promptly upon request
+by the Agent at any time and from time to time, and without limitation on the
+rights of the Agent pursuant to the provisions of Section 2.17, execute such
+letters in lieu of transfer or division orders as are necessary or appropriate
+to transfer and deliver to the remittances of Agent proceeds from or
+attributable to any of the Mortgaged Property.
+
+ 
+
+5.8 Commodity Hedging. Maintain in effect and comply, in all material respects,
+with the provisions of the Minimum Required Commodity Hedge Agreements.
+
+ 
+
+5.9 Tax Returns. Furnish to the Agent, promptly upon, but in no event more than
+thirty (30) days after, each filing of the annual federal income tax return of
+the Borrowers with the Internal Revenue Service, a copy thereof.
+
+ 
+
+5.10 Additional Information. Furnish to the Agent and any Lender, promptly upon
+the request of the Agent, such additional financial or other information
+concerning the assets, liabilities, operations and transactions of the Borrowers
+as the Agent may from time to time reasonably request; and notify the Agent not
+less than ten (10) Business Days prior to the occurrence of any condition or
+event that may change the proper location for the filing of any financing
+statement or other public notice or recording for the purpose of perfecting a
+Lien in any Property of the Borrowers, including any change in its name or the
+location of the jurisdiction of organization, principal place of business or
+chief executive office of the relevant Borrower; and upon the request of the
+Agent, execute such additional Security Documents as may be necessary or
+appropriate in connection therewith.
+
+  
+
+ - 53 -
+
+  
+
+ 
+
+5.11 Compliance with Laws. Comply, in all material respects, with all applicable
+Requirements of Law, including (a) ERISA, (b) Environmental Laws, (c)
+Anti-Terrorism Laws and (d) all permits, licenses, registrations, approvals and
+authorizations (i) related to any natural or environmental resource or media
+located on, above, within, related to or affected by any Property of the
+Borrowers, (ii) required for the performance of the operations of the Borrowers,
+or (iii) applicable to the use, generation, handling, storage, treatment,
+transport, or disposal of any Hazardous Substances; and use its best efforts to
+cause all employees, agents, contractors, subcontractors and future lessees
+(pursuant to appropriate lease provisions) of the Borrowers, while such Persons
+are acting within the scope of their relationship with the relevant Borrower, to
+comply with all such Requirements of Law as may be necessary or appropriate to
+enable the relevant Borrower to so comply.
+
+ 
+
+5.12 Payment of Assessments and Charges. Pay all Taxes, assessments,
+governmental charges, rent and other Indebtedness which, if unpaid, might become
+a Lien against any Property of the Borrowers, except any of the foregoing being
+contested in good faith and as to which an adequate reserve in accordance with
+GAAP has been established or unless failure to pay would not have a Material
+Adverse Effect.
+
+ 
+
+5.13 Maintenance of Existence or Qualification and Good Standing. Maintain its
+corporate, limited liability company or limited partnership, as the case may be,
+existence or qualification and, if applicable, good standing in its jurisdiction
+of organization and in all jurisdictions wherein any material Property now owned
+or hereafter acquired or business now or hereafter conducted by it necessitates
+same.
+
+ 
+
+5.14 Payment of Notes; Performance of Obligations. Pay the Notes according to
+the reading, tenor and effect thereof, as modified hereby, and do and perform
+every act and discharge all of the other Obligations.
+
+ 
+
+5.15 Further Assurances.
+
+ 
+
+(a) The Borrowers shall promptly (and in no event later than thirty (30) days
+after becoming aware of the need therefor) do all acts and things, and execute
+and file or record, all instruments, documents, or agreements reasonably
+requested by the Agent or the Required Lenders, to comply with, cure any defects
+or accomplish the conditions precedent, covenants and agreements of the
+Borrowers in the Loan Documents including the Notes, to further evidence and
+more fully describe the Collateral as security for the Obligations, as to
+correct any omissions in this Agreement or the Security Documents, or to state
+more fully the obligations secured therein, or to perfect, protect or preserve
+any Liens created pursuant to this Agreement or the Security Documents or the
+priority thereof or to make any recordings, file any notices or obtain any
+consents, all as may be reasonably necessary or appropriate, in the reasonable
+discretion of the Agent or the Required Lenders, in connection therewith.
+
+  
+
+ - 54 -
+
+  
+
+ 
+
+(b) In addition to the foregoing, the Borrowers shall, within thirty (30) days
+following request by the Agent, execute and deliver, mortgages, deeds of trust
+or any other agreements, documents or instruments with respect to the Real
+Property and Oil and Gas Properties to evidence the first-priority security
+interests granted to the Agent for the benefit of the Lenders pursuant to the
+Loan Documents.
+
+ 
+
+5.16 Initial Expenses of Agent. Upon request by the Agent, promptly reimburse
+the Agent for, or pay directly, all reasonable and documented fees and expenses
+of counsel (including, without limitation, one lead counsel and any local
+counsel) and financial advisors to the Agent and the Lenders, in connection with
+the preparation of this Agreement and all documentation contemplated hereby, the
+satisfaction of the conditions precedent set forth herein, the filing and
+recordation of Security Documents, and the consummation of the transactions
+contemplated in this Agreement.
+
+ 
+
+5.17 Subsequent Expenses of Agent and Lenders. Promptly reimburse (a) all third
+party out-of-pocket amounts reasonably expended, advanced or incurred by or on
+behalf of the Agent and Lenders (i) to satisfy any obligation of the Borrowers
+under any of the Loan Documents; (ii) to ratify, amend, restate or prepare
+additional Loan Documents, as the case may be; (iii) in connection with the
+filing and recordation of Security Documents; and which amounts shall include
+all reasonable attorney’s fees, together with interest at the Contract Rate on
+each such amount from the date of notification by the Agent that the same was
+expended, advanced or incurred by the Agent until the date it is repaid to the
+Agent; (iv) in connection with certain back office and administrative services
+related to the Term Loan provided by Cortland Capital Market Services LLC or
+such other third party loan servicer as Agent may select from time to time; and
+(v) in connection with all valuation services related to the Term Loan;
+provided, that the fees and expenses in connection with (a)(iv) and (a)(v) above
+shall not exceed $30,000 per calendar year; and (b) following an Event of
+Default, all out-of-pocket costs and expenses, if any, of the Agent or any of
+the Lenders (i) to enforce or protect their respective rights under any of the
+Loan Documents; (ii) to collect the Obligations and (iii) to protect the
+Properties or business of the Borrowers, which amounts shall be deemed
+compensatory in nature and liquidated as to amount upon notice to the relevant
+Borrower by the Agent and which costs and expenses shall include (A) all court
+costs, (B) reasonable attorneys’ fees of one lead counsel and any special or
+local counsel, (C) reasonable fees and expenses of auditors and accountants and
+other professionals incurred to protect the interests of the Agent and the
+Lenders, (D) fees and expenses incurred in connection with the participation by
+the Agent on behalf of the Lenders as members of the creditors’ committee in any
+Insolvency Proceeding, (E) fees and expenses incurred in connection with lifting
+the automatic stay prescribed in §362 Title 11 of the United States of America
+Code, (F) fees and expenses incurred by the Independent Reserve Engineer
+incurred in connection with the preparation, analysis and delivery of the
+Reserve Reports, and (G) fees and expenses incurred in connection with any
+action pursuant to §1129 Title 11 of the United States of America Code all
+reasonably incurred by the Agent on behalf of the Lenders in connection with the
+collection of any sums due under the Loan Documents, together with interest at
+the Contract Rate or Default Rate, as applicable, on each such amount from the
+date of notification by the Agent that the same was expended, advanced or
+incurred by the Agent or the Lenders until the date it is repaid to the Agent or
+such Lender, as applicable, with the obligations under this Section 5.17
+surviving the non-assumption of this Agreement in any Insolvency Proceeding and
+being binding upon the Borrowers and/or a trustee, receiver, custodian or
+liquidator of the Borrowers appointed in any such case. Notwithstanding any
+provision to the contrary herein, the Borrowers agree that, upon five (5) days’
+notice, the Agent may debit the Borrowers’ account or accounts that are subject
+to exclusive control by the Agent for any amounts payable pursuant to this
+Section 5.17 (including, without limitation, the Lockbox Account).
+
+  
+
+ - 55 -
+
+  
+
+ 
+
+5.18 Maintenance of Properties; Books and Records; Inspections. Each Borrower
+will (a) maintain or, to the extent that the right or obligation to do so rests
+with another Person, exercise commercially reasonable efforts to cause such
+other Person to maintain all of the tangible Properties of the Borrowers in good
+repair and condition, ordinary wear and tear excepted; make or, to the extent
+that the right or obligation to do so rests with another Person, exercise
+commercially reasonable efforts to cause such other Person to make all necessary
+replacements thereof and operate such Properties in a good and workmanlike
+manner, (b) keep adequate books of record and account in which full, true and
+correct entries are made of all material dealings and transactions in relation
+to its business and activities, and (c) permit any representatives designated by
+the Agent or any Lender (including employees of the Agent, any Lender or any
+consultants, accountants, lawyers and appraisers retained by the Agent) to visit
+and inspect any of the properties of any Borrower to inspect, copy and take
+extracts from its and their financial and accounting records, and to discuss its
+and their affairs, finances and accounts with its and their officers and
+independent accountants, all upon reasonable notice and at such reasonable times
+during normal business hours and as often as may reasonably be requested and by
+this provision the Borrowers authorize such independent accountants to discuss
+with the Agent and Lender and such representatives the affairs, finances and
+accounts of each Borrower; provided that (i) such Borrower shall be afforded an
+opportunity to be present at any such discussions with the independent
+accountants, and (ii) unless an Event of Default has occurred and is continuing,
+only one (1) such visits and inspections in any twelve (12) month period shall
+be at the Borrowers’ expense. The Borrowers acknowledge that the Agent, after
+exercising its rights of inspection, may prepare and distribute to the Lenders
+certain reports pertaining to the Borrowers’ assets for internal use by the
+Agent and the Lenders. Notwithstanding anything to the contrary in this Section
+5.18, none of the Borrowers or their Subsidiaries will be required to disclose
+or permit the inspection or discussion of, any document, information or other
+matter (x) in respect of which disclosure to the Agent or any Lender (or their
+representatives) is prohibited by law or any binding agreement or (y) that is
+subject to attorney-client or similar privilege or constitutes attorney work
+product.
+
+ 
+
+5.19 Maintenance of Insurance. Each Borrower will maintain or cause to be
+maintained, with financially sound and reputable insurers, casualty insurance,
+such public liability insurance, and third party property all risk damage
+insurance, in each case, with respect to liabilities, losses or damage in
+respect of the assets, properties and businesses of the Borrowers as are
+customarily carried or maintained under similar circumstances by Persons of
+established reputation of similar size and engaged in similar businesses, in
+such amounts (giving effect to self-insurance which comports with the
+requirements of this Section 5.19 and provided that adequate reserves therefor
+are maintained in accordance with GAAP), with such deductibles, covering such
+risks and otherwise on such terms and conditions as shall be customary for such
+Persons and in such amounts and from such insurers reasonably acceptable to
+Agent. Each such policy of the Borrowers of (i) casualty insurance shall contain
+loss payable clauses or provisions in each such insurance policy or policies in
+favor of and made payable to the Agent as its interests may appear and (ii) such
+policies of liability insurance shall name the Agent and the Lenders as
+“additional insureds” and provide that the insurer will endeavor to give no less
+than 30 days prior written notice of any cancellation to the Agent (10 days for
+non-payment). Such endorsement shall be further endorsed to show that each
+Borrower waives the right and shall cause its insurers to waive the right to
+subrogate against the Lenders. Each such policy shall be primary and not excess
+to or contributing with any insurance or self-insurance maintained by any
+Lender. Upon request at any time from and after the date that is thirty days
+after the Closing Date, the Borrowers shall deliver a certificate of insurance
+coverage from each insurer or its authorized agent or broker with respect to the
+insurance required by this Section 5.19 in form reasonably satisfactory to the
+Agent.
+
+  
+
+ - 56 -
+
+  
+
+ 
+
+5.20 Environmental Indemnification. Indemnify and hold the Agent and each of the
+Lenders and their respective shareholders, officers, directors, employees,
+agents, advisors attorneys-in-fact and Affiliates and each trustee for the
+benefit of the Agent or the Lenders under any Security Document (each of the
+foregoing an “Indemnitee”) harmless from and against any and all claims, losses,
+damages, liabilities, fines, penalties, charges, administrative and judicial
+proceedings and orders, judgments, remedial actions, requirements and
+enforcement actions of any kind, and all reasonable costs and expenses incurred
+in connection therewith (including attorneys’ fees and expenses), arising
+directly or indirectly, in whole or in part, from (a) the presence of any
+Hazardous Substances on, under, or from any Property of the Borrowers, whether
+prior to or during the term hereof, (b) any activity carried on or undertaken on
+any Property of the Borrowers, whether prior to or during the term hereof, and
+whether by the Borrowers or any of the predecessors in title, employees, agents,
+contractors or subcontractors of or any other Person at any time occupying or
+present on such Property, in connection with the handling, treatment, removal,
+storage, decontamination, cleanup, transportation or disposal of any Hazardous
+Substances at any time located or present on or under such Property, (c) any
+residual contamination on or under any Property of the Borrowers, (d) any
+contamination of any Property or natural resources arising in connection with
+the generation, use, handling, storage, transportation or disposal of any
+Hazardous Substances by the Borrowers or any employees, agents, contractors or
+subcontractors of the Borrowers while such Persons are acting within the scope
+of their relationship with the relevant Borrower, irrespective of whether any of
+such activities were or will be undertaken in accordance with applicable
+Requirements of Law or (e) the performance and enforcement of any Loan Document
+or any other act or omission in connection with or related to any Loan Document
+or the transactions contemplated thereby, including any such claim, loss,
+damage, liability, fine, penalty, charge, administrative or judicial proceeding,
+order, judgment, remedial action, requirement, enforcement action, cost or
+expense, arising from the negligence (but not the gross negligence or willful
+misconduct), whether sole or concurrent, of any Indemnitee; with the foregoing
+indemnity surviving satisfaction of all Obligations and the termination of this
+Agreement, unless all such Obligations have been satisfied wholly in cash and
+not by way of realization against any Collateral or the conveyance of any
+Property in lieu thereof, provided that such indemnity shall not extend to any
+act or omission by the Agent or any Lender with respect to any Property
+subsequent to the Agent or any Lender becoming the owner of such Property and
+with respect to which Property such claim, loss, damage, liability, fine,
+penalty, charge, proceeding, order, judgment, action or requirement arises
+subsequent to the acquisition of title thereto by the Agent or any Lender. All
+amounts due under this Section 5.20 shall be payable on written demand therefor
+by the Agent.
+
+  
+
+ - 57 -
+
+  
+
+ 
+
+5.21 General Indemnification. Indemnify and hold each Indemnitee harmless from
+and against any and all losses, claims, damages, liabilities and related
+expenses, including reasonable counsel fees and expenses, incurred by or
+asserted against any Indemnitee arising out of, in any way connected with or as
+a result of (a) the preparation, execution, delivery and administration of this
+Agreement and the other Loan Documents, the performance by the parties hereto
+and thereto of their respective obligations hereunder and thereunder and
+consummation of the transactions contemplated hereby and thereby, (b) the use of
+proceeds of the Term Loan, or (c) any claim, litigation, investigation or
+proceeding relating to any of the foregoing, whether or not any Indemnitee is a
+party thereto, including any such loss, claim, damage, liability or expense
+arising from the negligence, whether sole or concurrent, of any Indemnitee,
+except to the extent that the same is found in a final, nonappealable judgment
+by a court of competent jurisdiction to have resulted from such Indemnitee’s
+gross negligence or willful misconduct; with the foregoing indemnity surviving
+satisfaction of all Obligations and the termination of this Agreement. All
+amounts due under this Section 5.21 shall be payable on written demand therefor.
+
+ 
+
+5.22 Evidence of Compliance with Anti-Terrorism Laws. Deliver to the Agent and
+any Lender any certification or other evidence requested from time to time by
+the Agent or such Lender, in their reasonable discretion, confirming compliance
+by the Borrowers with the provisions of any or all applicable Anti-Terrorism
+Laws.
+
+ 
+
+5.23 Board and Management Meetings. Hold (a) a meeting of the governing body of
+each Borrower or its manager, as the case may be, at least annually and, in
+connection with each such meeting or any proposed action without a meeting, as
+the case may be, (i) provide to the Agent reasonable advance notice of the
+meeting or reasonable advance notice of any proposed action without a meeting,
+(ii) provide to the Agent, reasonably in advance of the meeting or proposed
+action without a meeting, copies of all written materials provided to the
+directors and (iii) so long as the Loan Balance exceeds $100,000 allow the Agent
+Observer to attend the meeting as a non-voting observer and (b) regular
+operations meetings of the management team of the relevant Borrower and special
+meetings of such management team at the reasonable request of the Agent.
+Borrowers will reimburse the Agent Observer for all reasonable and documented
+out-of-pocket costs and expenses incurred in connection with its participation
+in any such meetings.
+
+ 
+
+5.24 Leases. Each Borrower will maintain in full force and effect all oil, gas
+or mineral leases, contracts, servitudes and other agreements forming a part of
+any Oil and Gas Property covered by the most recent Reserve Report, to the
+extent the same cover or otherwise relate to such Oil and Gas Property, and each
+Borrower will timely perform all of its obligations thereunder, in accordance
+with industry standards. Each Borrower will properly and timely pay or hold in
+suspense status all rents (including delay rentals or other amounts necessary to
+extend the primary term of any lease), royalties, expenses and other payments
+due and payable under any such leases, contracts, servitudes and other
+agreements, or under the Permitted Liens, or otherwise attendant to its
+ownership or operation of any Oil and Gas Property (or contest such payments in
+accordance with the terms of the applicable joint operating agreement or
+otherwise contest in good faith and by appropriate proceedings and maintaining
+reserves for the payment of which in accordance with GAAP). Each Borrower will
+promptly notify the Agent of any claim (or any conclusion by such Borrower) that
+such Borrower is obligated to account for any royalties, or overriding royalties
+or other payments out of production, on a basis (other than delivery in kind)
+less favorable to such Borrower than proceeds received by such Borrower
+(calculated at the well) from sale of production.
+
+  
+
+ - 58 -
+
+  
+
+ 
+
+5.25 Maximum Permitted Monthly General and Administrative Cost Allocation. Not
+pay, agree to pay, deduct or account for General and Administrative Costs in
+excess of $150,000 per month. The Borrowers shall report to the Agent in the
+financial statements delivered pursuant to Section 5.2 a reasonably detailed
+description of the allocation of General and Administrative Costs detailing the
+inputs of the calculation (measured in arrears).
+
+ 
+
+5.26 Material Contracts. (a) Comply in all material respects with Material
+Contracts, and (b) promptly, and in any event within five (5) Business Days
+after any Material Contract of any Borrower is terminated or amended or after
+any new Material Contract is entered into, a written statement describing such
+event, with copies of such material amendments or new contracts and an
+explanation of any actions being taken with respect thereto.
+
+ 
+
+5.27 Information Regarding Collateral. The Borrowers will furnish to the Agent
+written notice at least thirty (30) days prior to the occurrence of any change
+(a) in any Borrower’s legal name, (b) in any Borrower’s identity or
+organizational structure, or (c) in any Borrower’s Federal Taxpayer
+Identification Number. Each Borrower agrees not to effect or permit any change
+referred to in the preceding sentence unless all filings have been made under
+the UCC or other applicable law or otherwise that are required in order for the
+Agent to continue at all times following such change to have a valid, legal and
+perfected security interest in all the Collateral that can be perfected by the
+filing of a UCC financing statement. The Borrowers will furnish to the Agent
+prompt written notice of any material Liens or claims made or asserted in
+writing against any Collateral or interest therein. Each Borrower also agrees
+promptly to notify the Agent in writing if any material Collateral is lost,
+damaged or destroyed.
+
+ 
+
+5.28 Lockbox Account. (a) Remit all payments (including, without limitation, any
+cash collateral returned or arising from the surety obligations contemplated
+under Section 5.32 below) received by it to the Lockbox Account and (b) direct
+all account debtors and royalty payors to remit all payments due to the
+Borrowers to the Lockbox Account.
+
+ 
+
+5.29 Additional Properties; Other Collateral. In the event that (a) any Borrower
+acquires any Oil and Gas Property or (b) any Property owned or leased by a
+Borrower on the Closing Date becomes Oil and Gas Property and such interest or
+interests under clauses (a) or (b) have an aggregate value in excess of $100,000
+and have not otherwise been made subject to the Lien of the Security Documents
+in favor of the Agent for the benefit of the Lenders, then such Borrower,
+contemporaneously with acquiring such Oil and Gas Property, in the case of
+clause (a), and promptly after any Property owned or leased on the Closing Date
+becomes an Oil and Gas Property, in the case of clause (b), must take all such
+actions and execute and deliver, or cause to be executed and delivered, all such
+mortgages, documents, instruments, agreements, opinions and certificates with
+respect to each such Property that the Agent shall reasonably request to create
+in favor of the Agent, for the benefit of the Lenders, a valid and, subject to
+any filing and/or recording referred to herein, perfected first priority
+security interest in such Property (subject only to Permitted Liens) such that,
+at all times the Agent will have a mortgage lien on all of the Oil and Gas
+Properties of the Borrowers. Each Borrower will at all times cause all personal
+property of such Borrower to be subject to a first priority Lien (subject only
+to Permitted Liens) in favor of the Agent pursuant to the Security Documents.
+All of the issued and outstanding Equity Interests of each Borrower (other than
+Holdings) shall at all times be pledged to the Agent pursuant to the Security
+Documents.
+
+   
+
+ - 59 -
+
+  
+
+ 
+
+5.30 Other Financial Reporting Obligations. Deliver to the Agent any and all
+annual and quarterly financial reporting information of Viking as well as any
+special reporting delivered to its securities regulator no later than three (3)
+days after such information is delivered to the SEC.
+
+ 
+
+5.31 Removal of Operator. If any Operator Event of Default or Event of Default
+exists, the Borrowers or such Affiliate shall, at the request of the Agent,
+immediately be removed as the operator pursuant to this Section 5.31, and such
+Person will (a) immediately take any and all actions reasonably requested by the
+Agent or its designee to facilitate a smooth transition of operatorship from
+such Person to a successor operator approved by the Agent in writing, including
+without limitation, transferring to the Agent or Agent’s designee, any cash
+collateral returned to the Borrowers as a result of bonds or other surety
+obligations being released or terminated in connection with the removal of the
+operator pursuant to this Section 5.31, (b) refrain from taking any action to
+oppose, delay or otherwise hinder the efforts of that successor operator to
+assume operatorship of the Collateral, and (c) fully cooperate in good faith
+with all such efforts by the Agent to pursue foreclosure and/or other rights and
+remedies available to the Agent by law, equity or otherwise. The Agent’s
+determination and written notification to any Person that an Event of Default
+has occurred and is continuing or otherwise exists will be conclusive and
+binding absent manifest error. For the avoidance of any doubt, the burden of
+proving manifest error shall be on the Borrowers.
+
+ 
+
+5.32 Maintenance of Bonds, Guarantees. The Borrowers shall obtain and maintain,
+or cause to be obtained and maintained, for the term of this Agreement, as the
+operator of record for the assets indicated as being operated by Five-J.A.B.
+Inc. on Exhibit B-1 of the Acquisition Agreement, bonds and guarantees
+sufficient to comply with the bonding requirements of the State of Texas, the
+State of Louisiana or any other Governmental Authority. For the avoidance of any
+doubt, the Borrowers may rely on the bonds and/or guarantees of Petrodome
+Operating, LLC, or its successors and assigns, to satisfy the obligation under
+this Section 5.32.
+
+ 
+
+5.33 Post-Closing Obligation. (a) Within fifteen (15) days after the Effective
+Date, the Agent shall have received a Development Plan in form and substance
+acceptable to the Agent in its sole discretion, (b) within ten (10) days
+following the Effective Date, the Borrowers shall direct all account debtors to
+make payment on accounts and any other Collateral directly to the Lockbox
+Account, (c) within thirty (30) days following the Effective Date, each relevant
+Borrower shall note, to the Agent’s reasonable satisfaction, the Agent’s
+security interest on all certificates of title for the vehicles or vessels, as
+the case may be, set forth on Schedule 3.5(c) of that certain Security Agreement
+dated as of the Effective Date, executed by the Borrowers for the benefit of the
+Agent and the other Secured Parties (as defined therein), (d) within thirty (30)
+days following the Effective Date, the Borrowers shall provide evidence of
+receipt by each of the aforementioned account debtors of such payment
+directions, (e) use commercially reasonable efforts, within thirty (30) days
+after the Effective Date, to deliver to Agent the countersigned Direction
+Letters delivered pursuant to Section 3.1(p), and (f) within thirty (30) days
+following the Effective Date, the Agent shall receive fully executed Deposit
+Account Control Agreements in form and substance acceptable to the Agent in its
+reasonable discretion.
+
+ 
+
+If notwithstanding the foregoing instructions, any Borrower receives any
+proceeds of any such Collateral, such Borrower shall receive such payments as
+Agent’s trustee, and shall immediately deposit all cash, checks or other similar
+payments related to or constituting payments made in respect of such Collateral
+received by it to the Lockbox Account. If any Borrower should refuse or neglect
+to notify any account debtor to forward payments directly to the Lockbox
+Account, Agent shall be entitled to make such notification directly to the
+applicable account debtor.
+
+   
+
+ - 60 -
+
+  
+
+ 
+
+ARTICLE VI
+
+ 
+
+NEGATIVE COVENANTS
+
+ 
+
+So long as any Obligation remains outstanding or unpaid, none of the Borrowers
+will:
+
+ 
+
+6.1 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness,
+whether by way of loan or otherwise; provided, however, the foregoing
+restriction shall not apply to (a) the Obligations, (b) unsecured accounts
+payable incurred in the ordinary course of business, which are not unpaid in
+excess of forty-five (45) days beyond invoice date or are being contested in
+good faith and as to which such reserve as is required by GAAP has been made,
+(c) Indebtedness of the Borrowers at any time owing by the relevant Borrower
+under any of the Minimum Required Commodity Hedge Agreements or other Commodity
+Hedge Agreement with Approved Hedge Counterparties and approved by the Agent,
+(d) Contingent Obligations permitted pursuant to Section 6.2, (e) Indebtedness
+of any Borrower owed to any other Borrower or to Holdings; provided, however,
+that neither Holdings nor Elysium may guarantee any of obligations of the other
+Borrowers, (f) Indebtedness under purchase money financings not to exceed
+$1,000,000 in the aggregate at any time outstanding, (g) indebtedness (other
+than Indebtedness for borrowed money) associated with (i) worker’s compensation
+laws or claims, unemployment insurance laws or similar legislation, performance,
+bid, surety, appeal, regulatory or similar bonds or (ii) surety obligations
+required by Governmental Authority or any Person in connection with the
+operation of the Oil and Gas Properties, including with respect to plugging,
+facility removal and abandonment of Oil and Gas Properties, (h) Indebtedness
+associated with Permitted Liens pursuant to clause (d) of the definition
+thereof, and (i) Indebtedness under that certain Contract Operating Agreement,
+which shall at all times be subject to the Subordination Agreement.
+
+ 
+
+6.2 Contingent Obligations. Create, incur, assume or suffer to exist any
+Contingent Obligation; provided, however, the foregoing restriction shall not
+apply to (a) performance guarantees, performance surety or other bonds or
+endorsements of items deposited for collection, in each case provided in the
+ordinary course of business or (b) trade credit incurred or operating leases
+entered into in the ordinary course of business.
+
+ 
+
+6.3 Liens. Create, incur, assume or suffer to exist any Lien on any of its
+Property, whether now owned or hereafter acquired; provided, however, the
+foregoing restriction shall not apply to Permitted Liens.
+
+  
+
+ - 61 -
+
+  
+
+ 
+
+6.4 Sales of Assets. Sell, transfer or otherwise dispose of, any of its
+Property, whether now owned or hereafter acquired, or enter into any agreement
+to do so; provided, however, the foregoing restriction shall not apply to (a)
+the sale of Hydrocarbons or inventory in the ordinary course of business,
+provided that no contract for the sale of Hydrocarbons shall obligate the
+relevant Borrower to deliver Hydrocarbons produced from any of its Oil and Gas
+Properties at some future date without receiving full payment therefor within
+sixty (60) days of delivery, (b) the sale or other disposition of Property
+destroyed, lost, worn out, damaged or having only salvage value or no longer
+used or useful in the business in which it is used, (c) the sale, transfer or
+other disposition of Property from the Borrowers to any other Borrowers or
+direct obligor hereunder, (d) sales or other dispositions of Property not
+constituting Collateral and not exceeding $50,000 in the aggregate, for the
+Borrowers on a consolidated basis, during any calendar year, or (e) sales or
+other dispositions of Property, the proceeds of which are used to pay the
+Obligations in full in cash.
+
+ 
+
+6.5 Leasebacks. Enter into any agreement to sell or transfer any Property and
+thereafter rent or lease as lessee such Property or other Property intended for
+the same use or purpose as the Property sold or transferred.
+
+ 
+
+6.6 Sale or Discount of Receivables. Except to minimize losses on bona fide
+debts previously contracted, discount or sell with recourse, or sell for less
+than the greater of the face or market value thereof, any of its notes
+receivable or accounts receivable.
+
+ 
+
+6.7 Loans or Advances. Make or agree to make or allow to remain outstanding any
+loans or advances to any Person; provided, however, the foregoing restriction
+shall not apply to (a) advances or extensions of credit in the form of accounts
+receivable incurred in the ordinary course of business and on terms customary in
+the relevant industry, (b) loans or advances by the relevant Borrower to any of
+the other Borrower or (c) other loans or advances not exceeding $25,000, in the
+aggregate for the Borrowers on a consolidated basis, at any time outstanding.
+Notwithstanding the forgoing, the Borrowers shall not make any advance or loan
+to or for the benefit of, whether directly or otherwise, to: (i) any Person
+directly or indirectly related to any Borrower or (ii) any officer or manager of
+such Borrower, without the express written consent of the Agent.
+
+ 
+
+6.8 Investments. Make or acquire Investments in, or purchase or otherwise
+acquire all or substantially all of the assets of, any Person; provided,
+however, the foregoing restriction shall not apply to (a) the purchase or
+acquisition of Oil and Gas Properties, pipelines and gathering systems or other
+Property related thereto or related to farm-out, farm-in, joint operating, joint
+venture or area of mutual interest agreements or other similar arrangements
+which are usual and customary in the oil and gas exploration and production
+business located within the geographic boundaries of the United States of
+America (including, the federal Outer Continental Shelf) and otherwise in
+accordance with the Development Plan and this Agreement or otherwise approved by
+the Agent in its sole discretion, (b) Investments in the form of (i) debt
+securities issued or directly and fully guaranteed or insured by the United
+States of America or any agency or instrumentality thereof, with maturities of
+no more than one year, (ii) commercial paper of a domestic issuer rated at the
+date of acquisition at least P-2 by Moody’s Investor Service, Inc. or A-2 by
+Standard & Poor’s Corporation and with maturities of no more than one year from
+the date of acquisition, (iii) repurchase agreements covering debt securities or
+commercial paper of the type permitted in this Section 6.8, or (iv) certificates
+of deposit, demand deposits, eurodollar time deposits, overnight bank deposits
+and bankers’ acceptances, with maturities of no more than one year from the date
+of acquisition, issued by or acquired from or through any Lender or any bank or
+trust company organized under the laws of the United States of America or any
+state thereof and having capital surplus and undivided profits aggregating at
+least $100,000,000, (c) other short-term Investments similar in nature and
+degree of risk to those described in clause (b) of this proviso to this Section
+6.8, (d) Investments in money-market funds sponsored or administered by Persons
+acceptable to the Agent and which funds invest in short-term Investments similar
+in nature and degree of risk to those described in clause (b) of this proviso to
+this Section 6.8, or (e) evidences of loans or advances not prohibited by the
+provisions of Section 6.8.
+
+  
+
+ - 62 -
+
+  
+
+ 
+
+6.9 Dividends and Distributions. Declare, pay or make, whether in cash or
+Property of the relevant Borrower, any dividend or distribution on, or purchase,
+redeem or otherwise acquire for value, any of its Equity Interests other than
+dividends and distributions paid (a) in additional shares of Equity Interests,
+so long as such additional shares of Equity Interests do not constitute
+Disqualified Equity Interests, (b) pursuant to and in accordance with stock
+option plans or other benefit plans for management, employees or consultants of
+the relevant Borrower, so long as such additional shares of Equity Interests do
+not constitute Disqualified Equity Interests, or (c) so long as no Default or
+Event of Default exists or would reasonably be expected to result in a Default
+or Event of Default, as a Permitted Tax Distribution.
+
+ 
+
+6.10 Issuance of Equity; Changes in Corporate Structure. Issue or agree to issue
+any Equity Interests in any Borrower or any Subsidiary other than common Equity
+Interests; enter into any transaction of consolidation, merger or amalgamation
+(including through a plan of division), or liquidate, wind-up or dissolve (or
+suffer any liquidation or dissolution) unless a Borrower is the surviving Person
+of such transaction.
+
+ 
+
+6.11 Transactions with Affiliates and Certain Other Person. Directly or
+indirectly, enter into any transaction (including the sale, lease or exchange of
+Property or the rendering of service) with any of its Affiliates or with any
+Person directly or indirectly related to any Borrower or any manager or officer
+of such Borrower (other than transactions entered into in the normal course of
+business between the Borrowers and any other Borrower not otherwise prohibited
+hereunder), other than: (a) upon fair and reasonable terms no less favorable
+than could be obtained in an arm’s length transaction with a Person which was
+not an Affiliate and (b) upon terms approved by the Agent in writing.
+
+ 
+
+6.12 Lines of Business. Engage in any line of business other than those in which
+the relevant Borrower is engaged as of the Closing Date.
+
+ 
+
+6.13 Plan Obligation. Assume or otherwise become subject to an obligation to
+contribute to or maintain any Plan or acquire any Person which has at any time
+had an obligation to contribute to or maintain any Plan.
+
+ 
+
+6.14 Anti-Terrorism Laws. Conduct any business or engage in any transaction or
+dealing with any Blocked Person, including the making or receiving of any
+contribution of funds, goods or services to or for the benefit of any Blocked
+Person; Deal in, or otherwise engage in any transaction relating to, any
+Property or interests in Property blocked pursuant to Executive Order No. 13224;
+Engage in or conspire to engage in any transaction that evades or avoids, or has
+the purpose of evading or avoiding, or attempts to violate (i) any of the
+prohibitions set forth in Executive Order No. 13224 or the USA Patriot Act or
+(ii) any prohibitions set forth in the rules or regulations issued by OFAC or
+any sanctions against targeted foreign countries, terrorism sponsoring
+organizations and international narcotics traffickers based on United States of
+America foreign policy.
+
+  
+
+ - 63 -
+
+  
+
+ 
+
+6.15 Amendment of Material Contracts. Amend, supplement, restate or otherwise
+modify (a) in any material respect, any Material Contract to which the relevant
+Borrower is a party, including, without limitation, any Development Plan,
+contract operating agreement or joint operating agreement, without the express
+written consent from the Agent, or (b) whether or not constituting “Material
+Contracts” (i) documents governing the conveyance of Oil and Gas Properties and
+(ii) oil and gas leases, oil, gas and mineral leases, or other liquid or gaseous
+hydrocarbon leases, in each case, in a manner materially adverse to the
+interests of the Lenders without in each case obtaining the prior written
+consent of the Agent to such amendment, restatement, supplement or other
+modification or waiver.
+
+ 
+
+6.16 Provisions of Commodity Hedge Agreements. Enter into or maintain in effect
+any Commodity Hedge Agreement containing any provision obligating the relevant
+Borrower to provide to the relevant Approved Hedge Counterparty any collateral,
+margin, letter of credit or any other form of security or credit support for the
+obligations, contingent or otherwise, of the relevant Borrower thereunder.
+
+ 
+
+6.17 Maintenance of Commodity Hedge Agreements. Enter into any Commodity Hedge
+Agreement, whether with an Approved Hedge Counterparty or another Person, other
+than the Minimum Required Commodity Hedge Agreements or liquidate or terminate
+any of Minimum Required Commodity Hedge Agreements.
+
+ 
+
+6.18 Deposit Accounts. Establish or maintain funds on deposit in a deposit
+account with any financial institution other than in (a) the Lockbox Account, or
+(b) in an Operating Account (including deposit accounts used to maintain funds
+in suspense or royalties due to third-parties) as described on Schedule 6.18
+attached hereto, as updated from time to time.
+
+ 
+
+6.19 Development Plans. Make any expenditure with respect to exploration or
+development activities with respect to the Oil and Gas Properties other than as
+contemplated in the Development Plan.
+
+ 
+
+6.20 Subsidiaries. Form or acquire any Subsidiary without the prior written
+consent of the Agent. In the event that the Agent provides such prior written
+consent to any formation or acquisition of any Subsidiary or joint venture, the
+relevant Borrower and/or Borrowers shall contemporaneously with such formation
+or acquisition, cause such Subsidiary to (a) become a Borrower by delivering to
+the Agent a duly executed amendment to this Agreement or such other document as
+the Agent shall deem appropriate for such purpose, (b) in accordance with
+Section 5.29, grant a security interest in all Collateral of the type described
+in the Security Documents subject to the exceptions specified therein, including
+all Oil and Gas Properties, owned by such Subsidiary by delivering to the Agent
+a duly executed supplement to the Security Documents or such other document as
+the Agent all documents the Agent shall deem appropriate for such purpose, (c)
+deliver to the Agent such opinions, documents and certificates referred to in
+Section 3.1 as may reasonably be requested by the Agent, (d) deliver to the
+Agent such original certificated Equity Interests or other transfer powers duly
+executed in blank, (e) deliver to the Agent such updated Schedules to the Loan
+Documents as requested by the Agent with respect to such Subsidiary, and (f)
+deliver to the Agent such other documents as may be reasonably requested by the
+Agent, all in form, content and scope reasonably satisfactory to the Agent.
+
+     
+
+6.21 Current Ratio. Allow, as of the close of any fiscal month, commencing with
+the month ending March 31, 2020, the ratio of Current Assets to Current
+Liabilities to be less than 1.00 to 1.00.
+
+ 
+
+6.22 PDP Collateral Coverage. Allow, as of each of the dates indicated in the
+table below in this Section 6.22, (a) the positive difference of (i) the Loan
+Balance as of the relevant date minus (ii) the amount of the Unrestricted Cash
+as of the relevant date divided by (b) the PV-10 value of the PDP Reserves
+(using Adjusted Strip Prices on the relevant date applied to the PDP Reserves of
+the Borrowers, on a consolidated basis, as reflected in the Reserve Report
+provided to the Agent pursuant to the provisions of Section 5.4), to be more
+than the percentage indicated in the table below for the relevant date:
+
+ 
+
+Date
+
+ 
+
+Percentage
+
+June 30, 2020
+
+ 
+
+70%
+
+December 31, 2020, and each
+
+ 
+
+65%
+
+December 31 and June 30 thereafter
+
+ 
+
+ 
+
+ - 64 -
+
+  
+
+ 
+
+6.23 Maximum Leverage. Allow, as of each of the dates indicated below in this
+Section 6.23, the ratio of (a) the Total Secured Debt to (b) EBITDA, calculated
+as set forth below, to exceed the ratios indicated in the table below for the
+relevant dates:
+
+ 
+
+Date
+
+ 
+
+Percentage
+
+ 
+
+Calculation Period
+
+ 
+
+ 
+
+ 
+
+June 30, 2020
+
+ 
+
+3.50 to 1.00
+
+ 
+
+Trailing 4 months, annualized 
+
+September 30, 2020
+
+ 
+
+3.25 to 1.00
+
+ 
+
+Trailing 7 months, annualized 
+
+December 31, 2020
+
+ 
+
+3.00 to 1.00
+
+ 
+
+Trailing 10 months, annualized 
+
+March 31, 2021, and the last day of each fiscal quarter thereafter
+
+ 
+
+2.75 to 1.00
+
+ 
+
+Trailing 12 months
+
+ 
+
+6.24 Organizational Documents. Enter into any amendment or permit any
+modification of, or waive any material right or obligation of any Person under,
+any Borrower’s applicable certificate or articles of incorporation, certificate
+of formation, bylaws, limited liability company agreement or equivalent or
+comparable document, in each case in a manner that is materially adverse to the
+Agent or the Lenders.
+
+ 
+
+6.25 Negative Pledge Agreements. Create, incur, assume or suffer to exist any
+contract, agreement or understanding (other than this Agreement, the Security
+Documents, agreements with respect to purchase money Indebtedness or Capital
+Leases secured by Permitted Liens, but then only with respect to the Property
+that is the subject of such Capital Lease or purchase money Indebtedness), that
+in any way prohibits or restricts granting, conveying, creation or imposition of
+any Lien on any of its Property in favor of the Agent and the Lenders.
+
+ 
+
+6.26 Material Accounting Changes. Change the last day of its fiscal year from
+December 31, of each year, or the last days of the first three fiscal quarters
+in each of its fiscal years from March 31, June 30 and September 30 of each
+year, respectively. Make (without the consent of the Agent) any material change
+in its accounting treatment and reporting practices except as required by GAAP.
+
+ 
+
+6.27 Amended to Acquisition Documents. Agree to any amendment, restatement,
+supplement or other modification to, or waiver of, any Acquisition Document
+without in each case obtaining the prior written consent of the Agent to such
+amendment, restatement, supplement or other modification or waiver.
+
+  
+
+ - 65 -
+
+  
+
+ 
+
+6.28 Passive Status of Holdings. Notwithstanding anything to the contrary
+contained herein or in any other Loan Document, Holdings shall not (a) engage in
+any operating or business activities other than its ownership of Elysium and
+activities incidental to the foregoing, (b) have any liabilities (other than
+nonconsensual obligations imposed by operation of law) or Indebtedness (other
+than the Obligations), (c) own any property or assets other than Equity
+Interests in Elysium, (d) create or suffer to exist any Lien upon any property
+or assets now owned or hereafter acquired, leased (as lessee), or licensed (as
+licensee) by it other than Permitted Liens, (e) consolidate with or merge with
+or into, or dispose all or substantially all its assets to, any Person, (f)
+sell, lease (as lessor), license (as licensor), exchange, assignment, transfer
+or otherwise dispose of any Equity Interests of any of its Subsidiaries, (g)
+create or acquire any Subsidiary or make or own any Investment in any Person
+other than Elysium; or (h) fail to hold itself out to the public as a legal
+entity separate and distinct from all other Persons; provided, however, that the
+foregoing shall not prohibit Holdings from engaging in the following activities
+or incurring the following liabilities: (i) the performance of its obligations
+under the Loan Documents, (ii) issuances of Equity Interests and other
+activities otherwise expressly permitted by this Agreement, (iii) activities
+related to the maintenance of Holdings’s corporate existence (including the
+ability to incur fees, costs and expenses relating to such maintenance), (iv)
+liabilities and activities to comply with applicable law, rule, regulation,
+order, approval, license, permit or similar restriction, (v) carrying out its
+obligations as member or sole managing member of Elysium, (vi) managing, through
+its board, directors, officers and managers, the business of Elysium and the
+other Borrowers, (vii) receipt and payment of dividends otherwise permitted
+under this Agreement, (viii) payment of taxes and dividends to the extent
+permitted under this Agreement, (ix) making contributions to the capital of its
+Subsidiaries, (x) providing indemnification to officers, managers and directors,
+and (xi) holding any cash and maintenance of deposit accounts incidental to any
+activities permitted under this Section 6.28 and (xii) activities, liabilities
+and properties incidental to the foregoing clauses (i) through (xi).
+
+ 
+
+ARTICLE VII
+
+ 
+
+EVENTS OF DEFAULT
+
+ 
+
+7.1 Enumeration of Events of Default. Any of the following events shall
+constitute an Event of Default:
+
+ 
+
+(a) default shall be made in the payment when due of any installment of
+principal or interest under this Agreement or the Notes or in the payment when
+due of any fee or other sum payable under any Loan Document to which the
+relevant Borrower is a party and such default shall continue unremedied for five
+(5) days, except such amounts due on the Maturity Date, for which no such grace
+period shall apply;
+
+ 
+
+(b) default shall be made by the Borrowers in the due observance or performance
+of any of its obligations under the Loan Documents, and, as to compliance with
+the obligations of the Borrowers under Article V (other than Section 5.3,
+Section 5.6, Section 5.8, Section 5.14, Section 5.19, Section 5.27, Section
+5.29, Section 5.25 and Section 5.31), such default shall continue for five (5)
+days after the earlier of notice thereof to the relevant Borrower or Borrowers
+by the Agent or knowledge thereof by the relevant Borrower or any of the other
+Borrowers;
+
+   
+
+ - 66 -
+
+  
+
+ 
+
+(c) any representation or warranty made by the Borrowers in any of the Loan
+Documents to which the relevant Borrower is a party proves to have been untrue
+in any material respect or any representation, statement (including Financial
+Statements), certificate or data furnished or made to the Agent or any Lender in
+connection herewith proves to have been untrue in any material respect as of the
+date the facts therein set forth were stated or certified;
+
+ 
+
+(d) default shall be made by any Borrower (as principal or guarantor or other
+surety) in the payment or performance of any bond, debenture, note or other
+Indebtedness in excess of $100,000 in the aggregate as to the relevant Borrower
+or under any credit agreement, loan agreement, indenture, promissory note or
+similar agreement or instrument executed in connection with any of the
+foregoing, and such default shall remain unremedied for five (5) days in excess
+of the period of grace, if any, with respect thereto;
+
+ 
+
+(e) the levy against any significant portion of the Property of the Borrowers,
+or any execution, garnishment, attachment, sequestration or other writ or
+similar proceeding in an amount in excess of $100,000 as to the relevant
+Borrower which is not permanently dismissed or discharged within 60 days after
+the levy;
+
+ 
+
+(f) any Borrower shall (i) apply for or consent to the appointment of a
+receiver, trustee or liquidator of it or all or a substantial part of its
+assets, (ii) file a voluntary petition commencing an Insolvency Proceeding,
+(iii) make a general assignment for the benefit of creditors of all or
+substantially all of its assets, (iv) be unable, or admit in writing its
+inability, to pay its debts generally as they become due or (v) file an answer
+admitting the material allegations of a petition filed against it in any
+Insolvency Proceeding;
+
+ 
+
+(g) an order, judgment or decree shall be entered against any Borrower by any
+court of competent jurisdiction or by any other Governmental Authority, on the
+petition of a creditor or otherwise, granting relief in any Insolvency
+Proceeding or approving a petition seeking reorganization or an arrangement of
+its debts or appointing a receiver, trustee, conservator, custodian or
+liquidator of it or all or any substantial part of its assets, and such order,
+judgment or decree shall not be dismissed or stayed within thirty (30) days;
+
+ 
+
+(h) a final and non-appealable order, judgment or decree shall be entered
+against any Borrower for money damages and/or Indebtedness due in an amount in
+excess of $100,000, and such order, judgment or decree shall not be dismissed or
+stayed within 60 days or is not fully covered by insurance;
+
+ 
+
+(i) any charges are filed or any other action or proceeding is instituted by any
+Governmental Authority against any Borrower under the Racketeering Influence and
+Corrupt Organizations Statute (18 U.S.C. §1961 et seq.), the result of which
+could be the forfeiture or transfer of any material Property of the relevant
+Borrower subject to a Lien in favor of the Agent without (i) satisfaction or
+provision for satisfaction of such Lien or (ii) such forfeiture or transfer of
+such Property being expressly made subject to such Lien;
+
+  
+
+ - 67 -
+
+  
+
+ 
+
+(j) no Borrower shall have (i) concealed, removed or diverted, or permitted to
+be concealed, removed or diverted, any part of its Property, with intent to
+hinder, delay or defraud its creditors or any of them, (ii) made or suffered a
+transfer of any of its Property which may be fraudulent under any bankruptcy,
+fraudulent conveyance or similar law with intent to hinder, delay or defraud its
+creditors, (iii) made any transfer of its Property to or for the benefit of a
+creditor at a time when other creditors similarly situated have not been paid
+with intent to hinder, delay or defraud its creditors or (iv) shall have
+suffered or permitted, while insolvent, any creditor to obtain a Lien upon any
+of its Property through legal proceedings or distraint which is not vacated
+within 60 days from the date thereof;
+
+ 
+
+(k) any Security Document shall for any reason not, or cease to, create valid
+and perfected first‑priority Liens against the Property of any Borrower which is
+a party thereto purportedly covered thereby, except to the extent permitted by
+this Agreement;
+
+ 
+
+(l) any Loan Document ceases to be in full force and effect (other than by
+reason of a release of Collateral in accordance with the terms hereof or thereof
+or the payment in full in cash of the Obligations in accordance with the terms
+hereof) or any Borrower contests in any manner the validity or enforceability of
+any provision of any Loan Document to which it is a party, or denies that it has
+any liability under any Loan Document to which it is a party;
+
+ 
+
+(m) any Borrower purports to revoke, terminate or rescind any Loan Document or
+any provision of any Loan Document;
+
+ 
+
+(n) any Borrower pays, in cash or otherwise, any portion of any Subordinated
+Indebtedness not expressly permitted pursuant to the terms of a subordination
+agreement in favor of the Agent,
+
+ 
+
+(o) a Change of Control occurs; or
+
+ 
+
+(p) at any time (i) an Insolvency Proceeding shall occurred with respect to
+Viking, (ii) Viking shall (A) fail to pay when due any principal of or interest
+on any (x) Indebtedness with a principal amount in excess of $500,000 or (y) a
+seller note issued by Viking to the Sellers (as such term is defined in the
+Acquisition Agreement) in satisfaction of a portion of the purchase price of the
+Acquisition Agreement or (B) shall be in default with respect to (x) any
+Indebtedness with a principal amount in excess of $500,000 or (y) a seller note
+issued by Viking to the Sellers (as such term is defined in the Acquisition
+Agreement) in satisfaction of a portion of the purchase price of the Acquisition
+Agreement, if, in the case of either clause (x) or clause (y), the effect of
+such breach or default is to cause, or to permit the holder or holders of that
+Indebtedness (or a trustee on behalf of such holder or holders), to cause, that
+Indebtedness to become or be declared due and payable (or subject to a
+compulsory repurchase or redeemable) or to require the prepayment, redemption,
+repurchase or defeasance of, or to cause Viking to make any offer to prepay,
+redeem, repurchase or defease such Indebtedness, prior to its stated maturity or
+the stated maturity of any underlying obligation, or (iii) Viking shall engage
+in any business other than the businesses engaged in by it on the Closing Date
+as presently conducted or contemplated to be conducted and all activities and
+operations incidental thereto.
+
+  
+
+ - 68 -
+
+  
+
+ 
+
+7.2 Remedies.
+
+ 
+
+(a) [Reserved].
+
+ 
+
+(b) Upon the occurrence of an Event of Default specified in Section 7.1(f) or
+Section 7.1(g), immediately and without notice, all Obligations shall
+automatically become immediately due and payable, without presentment, demand,
+protest, notice of protest, default or dishonor, notice of intent to accelerate
+maturity, notice of acceleration of maturity or other notice of any kind, except
+as may be provided to the contrary elsewhere herein, all of which are hereby
+expressly waived by the Borrowers.
+
+ 
+
+(c) Upon the occurrence of any Event of Default other than those specified in
+Section 7.1(f) or Section 7.1(g), the Agent may, and upon the request of the
+Required Lenders shall, by notice in writing to any Borrower, declare all
+Obligations immediately due and payable, without presentment, demand, protest,
+notice of protest, default or dishonor, notice of intent to accelerate maturity,
+notice of acceleration of maturity or other notice of any kind, except as may be
+provided to the contrary elsewhere herein, all of which are hereby expressly
+waived by each Borrower.
+
+ 
+
+(d) Upon the occurrence of any Event of Default, the Lenders, with the oral
+consent of the Required Lenders (confirmed promptly in writing), and the Agent,
+in accordance with the terms hereof, may, in addition to the foregoing in this
+Section 7.2, exercise any or all of their rights and remedies provided by law or
+pursuant to the Loan Documents.
+
+ 
+
+(e) Should the Obligations under the Loan Documents become immediately due and
+payable in accordance with any of the preceding subsections of this Section 7.2,
+the Agent shall be entitled to proceed against the Collateral.
+
+ 
+
+(f) Proceeds received by the Agent from realization against the Collateral and
+any other funds received by the Agent from any Borrower when an Event of Default
+has occurred and is continuing shall be applied (i) first, to fees and expenses
+due pursuant to the terms of this Agreement, any other Loan Document or any
+Commodity Hedge Agreement with a Lender, (ii) second, to accrued interest on the
+Obligations under the Loan Documents or any Commodity Hedge Agreement with a
+Lender and (iii) third, to the Loan Balance and any other Obligations then due
+and payable, pro rata in accordance with the ratio of the Loan Balance or such
+other Obligations, as the case may be, to the sum of the Loan Balance and such
+other Obligations. Notwithstanding the foregoing, amounts received from any
+Borrower that is not an Eligible Contract Participant shall not be applied to
+any Excluded Swap Obligations owing to a Lender, it being understood that in the
+event any amount is applied to the Obligations other than Excluded Swap
+Obligations as a result of this sentence, the Agent shall make such adjustments
+as it determines are appropriate pursuant to this sentence, from amounts
+received from Eligible Contract Participants to ensure, as nearly as possible,
+that the proportional aggregate recoveries with respect to the Obligations
+described in the preceding sentence of this subsection (f) of this Section 7.2
+by Lenders that are the holders of any Excluded Swap Obligations are the same as
+the proportional aggregate recoveries with respect to other Obligations pursuant
+to the preceding sentence of this subsection (f) of this Section 7.2.
+
+  
+
+ - 69 -
+
+  
+
+ 
+
+ARTICLE VIII
+
+ 
+
+THE AGENT
+
+ 
+
+8.1 Appointment. Each Lender hereby designates and appoints the Agent as the
+agent of such Lender under this Agreement and the other Loan Documents to which
+the Agent is a party or under which the Agent is granted any right or remedy.
+Each Lender authorizes the Agent, as the agent for such Lender, to take such
+action on behalf of such Lender under the provisions of this Agreement or the
+other Loan Documents to which the Agent is a party or under which the Agent is
+granted any right or remedy and to exercise such powers and perform such duties
+as are expressly delegated to the Agent by the terms of this Agreement or the
+other Loan Documents to which the Agent is a party or under which the Agent is
+granted any right or remedy, together with such other powers as are reasonably
+incidental thereto. Notwithstanding any provision to the contrary elsewhere in
+this Agreement or in any other Loan Document to which the Agent is a party or
+under which the Agent is granted any right or remedy, the Agent shall not have
+any duties or responsibilities except those expressly set forth herein or in any
+other Loan Document to which the Agent is a party or under which the Agent is
+granted any right or remedy or any fiduciary relationship with any Lender; and
+no implied covenants, functions, responsibilities, duties, obligations or
+liabilities on the part of the Agent shall be read into this Agreement or any
+other Loan Document to which the Agent is a party or under which the Agent is
+granted any right or remedy or otherwise exist against the Agent.
+
+ 
+
+8.2 Delegation of Duties. The Agent may execute any of its duties under this
+Agreement and the other Loan Documents to which the Agent is a party or under
+which the Agent is granted any right or remedy by or through agents or
+attorneys-in-fact and shall be entitled to advice of counsel concerning all
+matters pertaining to such duties. The Agent shall not be responsible to any
+Lender for the negligence or misconduct of any agents or attorneys-in-fact
+selected by it with reasonable care.
+
+ 
+
+8.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
+directors, employees, agents, attorneys-in-fact or Affiliates shall be (a)
+required to initiate or conduct any litigation or collection proceedings
+hereunder, except with the concurrence of the Required Lenders and contribution
+by each Lender of its Percentage Share of costs reasonably expected by the Agent
+to be incurred in connection therewith, (b) liable for any action lawfully taken
+or omitted to be taken by it or such Person under or in connection with this
+Agreement or any other Loan Document to which the Agent is a party or under
+which the Agent is granted any right or remedy (except for gross negligence or
+willful misconduct of the Agent or such Person as finally judicially determined
+by a court of competent jurisdiction) or (c) responsible in any manner to any
+Lender for any recitals, statements, representations or warranties made by any
+Borrower or any Responsible Officer thereof contained in this Agreement or any
+other Loan Document or in any certificate, report, statement or other document
+referred to or provided for in, or received by the Agent under or in connection
+with, this Agreement or any other Loan Document to which the Agent is a party or
+under which the Agent is granted any right or remedy, or for the value,
+validity, effectiveness, genuineness, enforceability or sufficiency of this
+Agreement or any other Loan Document to which the Agent is a party or under
+which the Agent is granted any right or remedy or for any failure of any
+Borrower to perform its obligations hereunder or thereunder. The Agent shall not
+be under any obligation to any Lender to ascertain or to inquire as to the
+observance or performance of any of the agreements contained in, or conditions
+of, this Agreement or any other Loan Document to which the Agent is a party or
+under which the Agent is granted any right or remedy, or to inspect the
+Properties, books or records of the Borrowers.
+
+  
+
+ - 70 -
+
+  
+
+ 
+
+8.4 Reliance by Agent. The Agent shall be entitled to rely, and shall be fully
+protected in relying, upon any Note, writing, resolution, notice, consent,
+certificate, affidavit, letter, telegram, telecopy, telex or teletype message,
+statement, order or other document or conversation believed by it to be genuine
+and correct and to have been signed, sent or made by the proper Person or
+Persons and upon advice and statements of legal counsel (including counsel to
+the Borrowers), independent accountants and other experts selected by the Agent.
+The Agent may deem and treat the payee of any Note as the owner thereof for all
+purposes unless and until a written notice of assignment, negotiation or
+transfer thereof shall have been received by the Agent. The Agent shall be fully
+justified in failing or refusing to take any action under this Agreement or any
+other Loan Document to which the Agent is a party or under which the Agent is
+granted any right or remedy unless it shall first receive such advice or
+concurrence of the Required Lenders as it deems appropriate and contribution by
+each Lender of its Percentage Share of costs reasonably expected by the Agent to
+be incurred in connection therewith. The Agent shall in all cases be fully
+protected in acting, or in refraining from acting, under this Agreement and the
+other Loan Documents to which the Agent is a party or under which the Agent is
+granted any right or remedy in accordance with a request of the Required
+Lenders. Such request and any action taken or failure to act pursuant thereto
+shall be binding upon the Lenders and all future holders of the Notes. In no
+event shall the Agent be required to take any action that exposes the Agent to
+liability or that is contrary to any Loan Document to which the Agent is a party
+or under which the Agent is granted any right or remedy or applicable
+Requirement of Law.
+
+ 
+
+8.5 Notice of Default. The Agent shall not be deemed to have knowledge or notice
+of the occurrence of any Default or Event of Default unless the Agent has
+received written notice from a Lender or the Borrowers referring to this
+Agreement, describing such Default or Event of Default and stating that such
+notice is a “notice of default.” In the event that the Agent receives such a
+notice, the Agent shall promptly give notice thereof to the Lenders. The Agent
+shall take such action with respect to such Default or Event of Default as shall
+be reasonably directed by the Required Lenders; provided that unless and until
+the Agent shall have received such directions, subject to the provisions of
+Section 7.2, the Agent may (but shall not be obligated to) take such action, or
+refrain from taking such action, with respect to such Default or Event of
+Default as it shall deem advisable in the best interests of the Lenders. In the
+event that the officer of the Agent primarily responsible for the lending
+relationship with the Borrowers or any Responsible Officer of any Lender
+primarily responsible for the lending relationship with the Borrowers becomes
+aware that a Default or Event of Default has occurred and is continuing, the
+Agent or such Lender, as the case may be, shall use its good faith efforts to
+inform the other Lenders and/or the Agent, as the case may be, promptly of such
+occurrence. Notwithstanding the preceding sentence, failure to comply with the
+preceding sentence shall not result in any liability to the Agent or any Lender.
+
+ 
+
+8.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly acknowledges
+that neither the Agent nor any other Lender nor any of their respective
+officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
+any representation or warranty to such Lender and that no act by the Agent or
+any other Lender hereafter taken, including any review of the affairs of the
+Borrowers, shall be deemed to constitute any representation or warranty by the
+Agent or any Lender to any other Lender. Each Lender represents to the Agent
+that it has, independently and without reliance upon the Agent or any other
+Lender, and based on such documents and information as it has deemed
+appropriate, made its own appraisal of and investigation into the business,
+operations, property, condition (financial and otherwise) and creditworthiness
+of the Borrowers and the value of the Properties of the Borrowers and has made
+its own decision to enter into this Agreement. Each Lender also represents that
+it will, independently and without reliance upon the Agent or any other Lender
+and based on such documents and information as it shall deem appropriate at the
+time, continue to make its own credit analysis, appraisals and decisions in
+taking or not taking action under this Agreement and the other Loan Documents,
+and to make such investigation as it deems necessary to inform itself as to the
+business, operations, property, condition (financial and otherwise) and
+creditworthiness of the Borrowers and the value of the Properties of the
+Borrowers. Except for notices, reports and other documents expressly required to
+be furnished to the Lenders by the Agent hereunder, the Agent shall not have any
+duty or responsibility to provide any Lender with any credit or other
+information concerning the business, operations, property, condition (financial
+and otherwise) or creditworthiness of the Borrowers or the value of the
+Properties of the Borrowers which may come into the possession of the Agent or
+any of its officers, directors, employees, agents, attorneys-in-fact or
+Affiliates.
+
+  
+
+ - 71 -
+
+  
+
+ 
+
+8.7 Indemnification. Each Lender agrees to indemnify the Agent and its officers,
+directors, employees, agents, attorneys-in-fact and Affiliates (to the extent
+not reimbursed by the Borrowers and without limiting the obligation of the
+Borrowers to do so), ratably according to the Percentage Share of such Lender,
+from and against any and all liabilities, claims, obligations, losses, damages,
+penalties, actions, judgments, suits, costs, expenses and disbursements of any
+kind whatsoever which may at any time (including any time following the payment
+and performance of all Obligations and the termination of this Agreement) be
+imposed on, incurred by or asserted against the Agent or any of its officers,
+directors, employees, agents, attorneys-in-fact or Affiliates in any way
+relating to or arising out of this Agreement or any other Loan Document, or any
+other document contemplated or referred to herein or the transactions
+contemplated hereby or any action taken or omitted by the Agent or any of its
+officers, directors, employees, agents, attorneys-in-fact or Affiliates under or
+in connection with any of the foregoing, including any liabilities, claims,
+obligations, losses, damages, penalties, actions, judgments, suits, costs,
+expenses and disbursements imposed, incurred or asserted as a result of the
+negligence, whether sole or concurrent, of the Agent or any of its officers,
+directors, employees, agents, attorneys-in-fact or Affiliates; provided that no
+Lender shall be liable for the payment of any portion of such liabilities,
+obligations, losses, damages, penalties, actions, judgments, suits, costs,
+expenses or disbursements resulting solely from the gross negligence or willful
+misconduct of the Agent or any of its officers, directors, employees, agents,
+attorneys-in-fact or Affiliates, as finally judicially determined by a court of
+competent jurisdiction. The agreements in this Section 8.7 shall survive the
+payment and performance of all Obligations and the termination of this
+Agreement.
+
+ 
+
+8.8 Restitution. Should the right of the Agent or any Lender to realize funds
+with respect to the Obligations be challenged and any application of such funds
+to the Obligations be reversed, whether by Governmental Authority or otherwise,
+or should the Borrowers otherwise be entitled to a refund or return of funds
+distributed to the Lenders in connection with the Obligations, the Agent or such
+Lender, as the case may be, shall promptly notify the Lenders of such fact. Not
+later than Noon, Eastern Standard or Eastern Daylight Savings Time, as the case
+may be, of the Business Day following such notice, each Lender shall pay to the
+Agent an amount equal to the ratable share of such Lender of the funds required
+to be returned to the Borrowers entitled to such funds. The ratable share of
+each Lender shall be determined on the basis of the percentage of the payment
+all or a portion of which is required to be refunded originally distributed to
+such Lender, if such percentage can be determined, or, if such percentage cannot
+be determined, on the basis of the Percentage Share of such Lender. The Agent
+shall forward such funds to the relevant Borrower or to the Lender required to
+return such funds. If any such amount due to the Agent is made available by any
+Lender after Noon, Eastern Standard or Eastern Daylight Savings Time, as the
+case may be, of the Business Day following such notice, such Lender shall pay to
+the Agent (or the Lender required to return funds to the relevant Borrower, as
+the case may be) for its own account interest on such amount at a rate equal to
+the Federal Funds Rate for the period from and including the date on which
+restitution to the relevant Borrower is made by the Agent (or the Lender
+required to return funds to the relevant Borrower, as the case may be) to but
+not including the date on which such Lender failing to timely forward its share
+of funds required to be returned to the relevant Borrower shall have made its
+ratable share of such funds available.
+
+   
+
+ - 72 -
+
+  
+
+ 
+
+8.9 Agent in Its Individual Capacity. Lender serving as the Agent hereunder and
+its Affiliates may make loans to, accept deposits from, and generally engage in
+any kind of business with the Borrowers or any of them as though such Lender
+were not the agent hereunder. With respect to any Note issued to the Lender
+serving as the agent, such Lender shall have the same rights and powers under
+this Agreement as a Lender and may exercise such rights and powers as though it
+were not the agent hereunder. The terms “Lender” and “Lenders” shall include the
+Agent in its individual capacity as a Lender.
+
+  
+
+8.10 Successor Agent. The Agent may at any time give notice of its resignation
+to the Lenders and the Borrowers. Upon receipt of any such notice of
+resignation, the Required Lenders shall have the right, in consultation with the
+Borrower, to appoint from among the Lenders or Affiliates of a Lender a
+successor agent for the Lenders; and 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 Agent gives notice of its resignation (or such
+earlier day as shall be agreed by the Lenders) (the “Resignation Effective
+Date”), then the retiring Agent may (but shall not be obligated to), on behalf
+of the Lenders, appoint a successor Agent meeting the qualifications set forth
+above; provided that in no event shall any such successor Agent be a Defaulting
+Lender. The term “Agent” shall mean such successor agent effective upon its
+appointment. The rights, powers and duties of the former Agent as Agent shall be
+terminated, without any other or further act or deed on the part of such former
+Agent or any of the parties to this Agreement or any holders of the Notes. After
+the removal or resignation of any Agent hereunder as Agent, the provisions of
+this Article VIII and those of any Section of this Agreement relating to the
+Agent, including Section 5.16, Section 5.17, Section 5.21, Section 5.22 and
+Section 8.7 shall inure to its benefit as to any actions taken or omitted to be
+taken by it while it was Agent under this Agreement and the other Loan
+Documents.
+
+ 
+
+ - 73 -
+
+  
+
+ 
+
+8.11 Applicable Parties. The provisions of this Article VIII are solely for the
+benefit of the Agent and the Lenders, and none of the Borrowers shall have any
+rights as a third party beneficiary or otherwise under any of the provisions of
+this Article VIII. In performing functions and duties hereunder and under the
+other Loan Documents, the Agent shall act solely as the agent of the Lenders and
+does not assume, nor shall it be deemed to have assumed, any obligation or
+relationship of trust or agency with or for the Borrowers or any legal
+representative, successor or assign of the Borrowers.
+
+ 
+
+8.12 Releases. Each Lender hereby authorizes the Agent to release any Collateral
+that is permitted to be sold or released pursuant to the terms of the Loan
+Documents. Each Lender hereby authorizes the Agent to execute and deliver to the
+Borrowers or any of them, at the sole cost and expense of the Borrowers, any and
+all releases of Liens, termination statements, assignments or other documents
+reasonably requested by the Borrowers in connection with any sale or other
+disposition of Property to the extent such sale or other disposition is
+permitted by the terms of the Loan Documents.
+
+ 
+
+8.13 Credit Bidding. The Lenders hereby irrevocably authorize the Agent, at the
+direction of the Required Lenders, to credit bid all or any portion of the
+Obligations (including by accepting some or all of the Collateral in
+satisfaction of some or all of the Obligations pursuant to a deed in lieu of
+foreclosure or otherwise) and in such manner purchase (either directly or
+through one or more acquisition vehicles) all or any portion of the Collateral
+(a) at any sale thereof conducted under the provisions of the Bankruptcy Code,
+including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any
+similar laws in any other jurisdictions to which a Borrower is subject, or (b)
+at any other sale, foreclosure or acceptance of collateral in lieu of debt
+conducted by (or with the consent or at the direction of) the Agent (whether by
+judicial action or otherwise) in accordance with any applicable law. In
+connection with any such credit bid and purchase, the Obligations owed to the
+Lenders shall be entitled to be, and shall be, credit bid by the Agent at the
+direction of the Required Lenders on a ratable basis (with Obligations with
+respect to contingent or unliquidated claims receiving contingent interests in
+the acquired assets on a ratable basis that shall vest upon the liquidation of
+such claims in an amount proportional to the liquidated portion of the
+contingent claim amount used in allocating the contingent interests) for the
+asset or assets so purchased (or for the equity interests or debt instruments of
+the acquisition vehicle or vehicles that are issued in connection with such
+purchase). In connection with any such bid, (i) the Agent shall be authorized to
+form one or more acquisition vehicles and to assign any successful credit bid to
+such acquisition vehicle or vehicles, (ii) each of the Lender’s ratable
+interests in the Obligations which were credit bid shall be deemed without any
+further action under this Agreement to be assigned to such vehicle or vehicles
+for the purpose of closing such sale, (iii) the Agent shall be authorized to
+adopt documents providing for the governance of the acquisition vehicle or
+vehicles (provided that any actions by the Agent with respect to such
+acquisition vehicle or vehicles, including any disposition of the assets or
+equity interests thereof, shall be governed, directly or indirectly, by, and the
+governing documents shall provide for, control by the vote of the Required
+Lenders or their permitted assignees under the terms of this Agreement or the
+governing documents of the applicable acquisition vehicle or vehicles, as the
+case may be, irrespective of the termination of this Agreement and without
+giving effect to the limitations on actions by the Required Lenders contained in
+Section 9.9 of this Agreement), (iv) the Agent on behalf of such acquisition
+vehicle or vehicles shall be authorized to issue to each of the Lenders, ratably
+on account of the relevant Obligations which were credit bid, interests, whether
+as equity, partnership interests, limited partnership interests or membership
+interests, in any such acquisition vehicle and/or debt instruments issued by
+such acquisition vehicle, all without the need for any Lender or acquisition
+vehicle to take any further action, and (v) to the extent that Obligations that
+are assigned to an acquisition vehicle are not used to acquire Collateral for
+any reason (as a result of another bid being higher or better, because the
+amount of Obligations assigned to the acquisition vehicle exceeds the amount of
+Obligations credit bid by the acquisition vehicle or otherwise), such
+Obligations shall automatically be reassigned to the Lenders pro rata with their
+original interest in such Obligations and the equity interests and/or debt
+instruments issued by any acquisition vehicle on account of such Obligations
+shall automatically be cancelled, without the need for any Lender or any
+acquisition vehicle to take any further action. Notwithstanding that the ratable
+portion of the Obligations of each Lender are deemed assigned to the acquisition
+vehicle or vehicles as set forth in clause (ii) above, each Lender shall execute
+such documents and provide such information regarding the Lender (and/or any
+designee of the Lender which will receive interests in or debt instruments
+issued by such acquisition vehicle) as the Agent may reasonably request in
+connection with the formation of any acquisition vehicle, the formulation or
+submission of any credit bid or the consummation of the transactions
+contemplated by such credit bid. The Lenders hereby irrevocably authorize the
+Agent, at the direction of the Required Lenders, to consent to or elect not to
+object to, any sale free and clear of the security interests granted to the
+Agent under the Security Documents conducted under the provisions of the
+Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy
+Code, or any similar laws in any other jurisdictions to which a Borrower is
+subject. Notwithstanding the foregoing, the Agent shall use best efforts to
+consult with the Lenders prior to exercising its rights under this Section 8.13.
+
+ 
+
+ - 74 -
+
+  
+
+ 
+
+ARTICLE IX
+
+ 
+
+MISCELLANEOUS
+
+ 
+
+9.1 Assignments; Participations.
+
+ 
+
+(a) None of the Borrowers may assign any of its rights or obligations under any
+Loan Document without the prior written consent of the Agent and the Lenders.
+
+ 
+
+(b) With the consent of the Agent (which consent shall not be unreasonably
+withheld, conditioned or delayed), any Lender may assign to one or more
+assignees all or a portion of its rights and obligations under this Agreement
+pursuant to an Assignment Agreement. Any such assignment shall be in the amount
+of at least $25,000 (or any whole multiple of $25,000 in excess thereof), unless
+the relevant assignment is to an affiliate of the assigning Lender or is an
+assignment of the entire Commitment of the assigning Lender. The assignee shall
+pay to the Agent, if requested by the Agent, a transfer fee in the amount of
+$2,500 for each such assignment. Any such assignment shall become effective upon
+receipt by the Agent of all documentation and other information with respect to
+the assignee that is required by regulatory authorities under applicable “know
+your customer” and anti-money laundering rules and regulations, including the
+USA Patriot Act, the execution and delivery to the Agent of the Assignment
+Agreement and recordation by the Agent in the Register in accordance with this
+Section 9.1(b). Promptly following receipt of an executed Assignment Agreement,
+the Agent shall send to the Borrowers a copy of such executed Assignment
+Agreement. Promptly following receipt of such executed Assignment Agreement, the
+Borrowers shall execute and deliver, at their own expense, new Notes to the
+assignee and, if applicable, the assignor, in accordance with their respective
+interests, whereupon the prior Notes of the assignor and, if applicable, the
+assignee, shall be canceled and returned to the Borrowers. Upon the
+effectiveness of any assignment pursuant to this Section 9.1(b), the assignee
+will become a “Lender,” if not already a “Lender,” for all purposes of the Loan
+Documents, and the assignor shall be relieved of its obligations hereunder to
+the extent of such assignment. If the assignor no longer holds any rights or
+obligations under this Agreement, such assignor shall cease to be a “Lender”
+hereunder, except that its rights under Section 5.17, Section 5.21, Section 5.22
+and Section 8.7, shall not be affected. On the last Business Day of each month
+during which an assignment has become effective pursuant to this Section 9.1(b),
+the Agent shall update the Register to show all such assignments effected during
+such month and will promptly provide a copy thereof to the Borrowers and each
+Lender. Agent, acting for this purpose as a non-fiduciary agent of Borrowers,
+shall maintain at one of its offices located in the Unites States of America a
+copy of each Assignment Agreement delivered to it and a register for the
+recordation of the names and addresses of the Lenders, and the Commitment of,
+and principal amount and stated interest of the Term Loan 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 Borrowers, 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, in the absence
+of manifest error. Notwithstanding anything to the contrary, any assignment of
+any Term Loan shall be effective only upon appropriate entries with respect
+thereto being made in the Register. The Register shall be available for
+inspection by any Borrower, Agent and any Lender, at any reasonable time and
+from time to time upon reasonable prior written notice. This Section shall be
+construed so that the Term Loan is at all times maintained in “registered form”
+within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and
+any related regulations (and any successor provisions).
+
+ 
+
+ - 75 -
+
+  
+
+ 
+
+(c) Each Lender may transfer, grant or assign participations in all or any
+portion of its interests hereunder to any Person pursuant to this Section
+9.1(c), provided that such Lender shall remain a “Lender” for all purposes of
+this Agreement and the Transferee of such participation shall not constitute a
+“Lender” hereunder. In the case of any such participation, the participant shall
+not have any rights under any Loan Document, the rights of the participant in
+respect of such participation to be against the granting Lender as set forth in
+the agreement with such Lender creating such participation, and all amounts
+payable by the Borrowers hereunder shall be determined as if such Lender had not
+sold such participation. Each agreement creating a participation must include an
+agreement by the participant to be bound by the provisions of Section 8.3,
+Section 8.6 and Section 8.7.
+
+ 
+
+(d) The Agent or any Lender may furnish any information concerning the Borrowers
+in the possession of the Agent or such Lender from time to time to assignees and
+participants and prospective assignees and participants.
+
+ 
+
+(e) Notwithstanding anything in this Section 9.1 to the contrary, any Lender
+which is a national or state bank may assign and pledge all or any of its Notes
+or any interest therein to any Federal Reserve Bank or the Department of the
+Treasury of the United States of America as collateral security pursuant to
+Regulation A of the Board of Governors of the Federal Reserve System and any
+operating circular issued by such Federal Reserve System and/or such Federal
+Reserve Bank. No such assignment or pledge shall release the assigning or
+pledging Lender from its obligations hereunder.
+
+ 
+
+(f) Notwithstanding any other provisions of this Section 9.1, no transfer or
+assignment of the interests or obligations of any Lender or grant of
+participations therein shall be permitted if such transfer, assignment or grant
+would require the Borrowers to file a registration statement with the Securities
+and Exchange Commission or any successor Governmental Authority or qualify the
+Term Loan under the “Blue Sky” laws of any state.
+
+ 
+
+9.2 Survival of Representations, Warranties, and Covenants. All representations
+and warranties of the Borrowers and all covenants and agreements herein made by
+the Borrowers shall survive the execution and delivery of the Notes and shall
+remain in force and effect so long as any Obligation is outstanding.
+
+ 
+
+9.3 Notices and Other Communications. Except as to oral notices expressly
+authorized herein, if any, which oral notices shall be promptly confirmed in
+writing, all notices, requests and communications hereunder shall be in writing
+(including by facsimile or electronic mail). Unless otherwise expressly provided
+herein, any such notice, request, demand or other communication shall be deemed
+to have been duly given or made when delivered personally, or, in the case of
+delivery by mail, when deposited in the mail, certified mail with return receipt
+requested, postage prepaid, in the case of facsimile notice, when receipt
+thereof is acknowledged orally or by written confirmation report or, in the case
+of electronic mail, when sent and no undeliverable notification is received,
+addressed as follows:
+
+ 
+
+(a) if to the Agent, to:
+
+ 
+
+405 Woodbine LLC
+405 Lexington Avenue, 59th Floor
+New York, New York 10174
+Attention: Greg White
+E-mail: gwhite@arenaco.com
+
+     
+
+
+
+ - 76 -
+
+  
+
+    
+
+With a copy to:
+
+ 
+
+gpaulsen@arenaco.com
+
+ 
+
+and:
+
+ 
+
+reporting@arenaco.com
+
+ 
+
+With a copy to:
+
+ 
+
+Hunton Andrews Kurth LLP
+
+600 Travis, Suite 4200
+
+Houston, Texas 77002
+
+Attention: Timothy A. “Tad” Davidson II
+
+E-mail: taddavidson@huntonak.com
+
+
+
+(b) if to any Lender, to the Applicable Lending Office, including, without
+limitation, each email address of such Lender appearing below such Lender’s
+Applicable Lending Office.
+
+ 
+
+(c) if to any Borrower, to:
+
+ 
+
+Elysium Energy, LLC
+
+15915 Katy Freeway, Suite 450
+Houston, Texas 77094
+Attention: James A. Doris
+E-mail: jdoris@vikingenergygroup.com
+
+ 
+
+With a copy to:
+
+ 
+
+Jones Walker
+
+201 St. Charles Avenue
+
+New Orleans, Louisiana 70170
+
+Attention: Amy Scafidel
+
+ 
+
+Any party may, by proper written notice hereunder to the others, change the
+individuals or addresses to which such notices to it shall thereafter be sent.
+
+ 
+
+9.4 Parties in Interest. Subject to the restrictions on changes in structure set
+forth in Section 6.10 and other applicable restrictions contained herein, all
+covenants and agreements herein contained by or on behalf of the Borrowers, the
+Agent or the Lenders shall be binding upon and inure to the benefit of the
+relevant Borrower, the Agent or the Lenders, as the case may be, and their
+respective legal representatives, successors and assigns.
+
+ 
+
+9.5 Rights of Third Parties. Except as provided in Section 9.4, all provisions
+herein are imposed solely and exclusively for the benefit of the Agent, the
+Lenders and the Borrowers and no other Person shall have any right, benefit,
+priority or interest hereunder or as a result hereof or have standing to require
+satisfaction of provisions hereof in accordance with their terms.
+
+ 
+
+ - 77 -
+
+  
+
+ 
+
+9.6 Renewals; Extensions. All provisions of this Agreement relating to the Notes
+shall apply with equal force and effect to each promissory note hereafter
+executed which in whole or in part represents a renewal or extension of any part
+of the Indebtedness of the Borrowers under this Agreement, the Notes or any
+other Loan Document.
+
+ 
+
+9.7 No Waiver; Rights Cumulative. No course of dealing on the part of the Agent
+or the Lenders or their officers or employees, nor any failure or delay by the
+Agent or the Lenders with respect to exercising any of their rights under any
+Loan Document shall operate as a waiver thereof. The rights of the Agent and the
+Lenders under the Loan Documents shall be cumulative and the exercise or partial
+exercise of any such right shall not preclude the exercise of any other right.
+The making of the Term Loan shall not constitute a waiver of any of the
+covenants, warranties or conditions of the Borrowers contained herein. In the
+event any of the Borrowers are unable to satisfy any such covenant, warranty or
+condition, the making of the Term Loan shall not have the effect of precluding
+the Agent or the Lenders from thereafter declaring such inability to be an Event
+of Default as hereinabove provided.
+
+ 
+
+9.8 Survival Upon Unenforceability. In the event any one or more of the
+provisions contained in any of the Loan Documents or in any other instrument
+referred to herein or executed in connection with the Obligations shall, for any
+reason, be held to be invalid, illegal or unenforceable in any respect, such
+invalidity, illegality or unenforceability shall not affect any other provision
+of any Loan Document or of any other instrument referred to herein or executed
+in connection with such Obligations.
+
+ 
+
+9.9 Amendments; Waivers. Neither this Agreement nor any provision hereof may be
+amended, waived, discharged or terminated orally, except by an instrument in
+writing signed by the Agent and the party against whom enforcement of the
+amendment, waiver, discharge or termination is sought. Subject to the preceding
+sentence, any provision of this Agreement or any other Loan Document may be
+amended or modified by the Borrowers and the Required Lenders or waived by the
+Required Lenders; provided that, notwithstanding any provision of this Agreement
+to the contrary, (a) no amendment, modification or waiver which (i) extends the
+Maturity Date, (ii) forgives the principal amount of any Indebtedness of the
+Borrowers outstanding under this Agreement or interest thereon or fees owing
+under this Agreement, (iii) releases any guarantor of such Indebtedness, (iv)
+releases all or substantially all of the Property of the Borrowers subject to
+the Security Documents, (v) postpones any date scheduled for any payment of
+principal of, or interest on, any Loan Balance, or any fees or other amounts
+payable hereunder to the Lenders or under any other Loan Document to the
+Lenders, or reduces the amount of, waives or excuses such payment, changes
+Section 2.7 or any other provision of any Loan Document in a manner that would
+alter the pro rata sharing of payments required thereby, (vi) reduces the
+interest rate applicable to the Loan Balance or the fees payable to the Lenders
+generally, (vii) affects this Section 9.9 or (viii) modifies the definition of
+“Required Lenders” shall be effective without the unanimous written consent of
+all Lenders and the Agent; (b) no amendment, modification or waiver which
+increases the Percentage Share of any Lender shall be effective without the
+written consent of such Lender and the Agent; (c) in the event Cargill and/or BP
+is a Lender, no amendment, modification or waiver which (i) amends or modifies
+the definitions of “Approved Hedge Counterparty”, “Minimum Required Commodity
+Hedge Agreements” or “Obligations” in this Agreement or any similar term(s) used
+or defined in any other Loan Document or (ii) amends, modifies or waives the
+terms of Section 5.8 or Section 6.17 of this Agreement, in either case, shall be
+effective without the prior written consent of Cargill and/or BP, as the case
+may be; and (d) no amendment, modification or waiver which modifies the rights,
+duties or obligations of the Agent shall be effective without the written
+consent of the Agent.
+
+ 
+
+ - 78 -
+
+  
+
+ 
+
+9.10 Controlling Agreement. In the event of a conflict between the provisions of
+this Agreement and those of any other Loan Document, the provisions of this
+Agreement shall control.
+
+ 
+
+9.11 Disposition of Collateral. Notwithstanding any term or provision, express
+or implied, in any of the Security Documents, upon the occurrence and
+continuation of an Event of Default, the realization, liquidation, foreclosure
+or any other disposition on or of any or all of the Property of the Borrowers
+subject to the Security Documents shall be in the order and manner and
+determined in the sole discretion of the Agent; provided, however, that in no
+event shall the Agent violate applicable law or exercise rights and remedies
+other than those provided in such Security Documents or otherwise existing at
+law or in equity.
+
+ 
+
+9.12 Governing Law. This Agreement and the Notes shall be deemed to be contracts
+made under and shall be construed in accordance with and governed by the laws of
+the State of New York, without giving effect to principles thereof relating to
+conflicts of law.
+
+ 
+
+9.13 Dispute Resolution. This Section 9.13 contains a jury waiver, a class
+action waiver and an arbitration provision. READ CAREFULLY.
+
+ 
+
+(a) THIS DISPUTE RESOLUTION PROVISION SHALL SUPERSEDE AND REPLACE ANY PRIOR
+“JURY WAIVER,” “JUDICIAL REFERENCE,” “CLASS ACTION WAIVER,” “ARBITRATION,”
+“DISPUTE RESOLUTION” OR SIMILAR ALTERNATIVE DISPUTE AGREEMENT OR PROVISION
+BETWEEN OR AMONG THE PARTIES HERETO RELATING TO THE TRANSACTION WHICH IS THE
+SUBJECT OF THIS AGREEMENT.
+
+ 
+
+(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY
+KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES
+ITS RIGHTS TO A TRIAL BEFORE A JURY IN CONNECTION WITH ANY CLAIM, DISPUTE OR
+CONTROVERSY WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EACH OF
+THE FOREGOING, A “DISPUTE”), AND, EXCEPT AS PROVIDED BELOW IN THIS SECTION 9.13,
+DISPUTES SHALL BE RESOLVED BY A JUDGE SITTING WITHOUT A JURY. IF A COURT
+DETERMINES THAT THIS PROVISION IS NOT ENFORCEABLE FOR ANY REASON AND AT ANY TIME
+PRIOR TO TRIAL OF THE DISPUTE, BUT NOT LATER THAN 30 DAYS AFTER ENTRY OF THE
+ORDER DETERMINING THIS PROVISION IS UNENFORCEABLE, ANY PARTY HERETO SHALL BE
+ENTITLED TO MOVE THE COURT FOR AN ORDER COMPELLING ARBITRATION AND STAYING OR
+DISMISSING SUCH LITIGATION PENDING ARBITRATION (AN “ARBITRATION ORDER”). IF
+PERMITTED BY APPLICABLE LAW, EACH PARTY ALSO WAIVES THE RIGHT TO LITIGATE IN
+COURT OR AN ARBITRATION PROCEEDING ANY DISPUTE AS A CLASS ACTION, EITHER AS A
+MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY
+GENERAL.
+
+  
+
+
+
+ - 79 -
+
+  
+
+     
+
+(c) IF A DISPUTE ARISES, AND ONLY IF A JURY TRIAL WAIVER IS NOT PERMITTED BY
+APPLICABLE LAW OR RULING BY A COURT, ANY PARTY MAY REQUIRE THAT THE DISPUTE BE
+RESOLVED BY BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR. BY AGREEING TO
+ARBITRATE A DISPUTE, EACH PARTY HERETO GIVES UP ANY RIGHT THAT PARTY MAY HAVE TO
+A JURY TRIAL AS WELL AS OTHER RIGHTS THAT PARTY WOULD HAVE IN COURT THAT ARE NOT
+AVAILABLE OR ARE MORE LIMITED IN ARBITRATION, SUCH AS THE RIGHTS TO DISCOVERY
+AND TO APPEAL. 
+
+ 
+
+ARBITRATION SHALL BE COMMENCED BY FILING A PETITION WITH, AND IN ACCORDANCE WITH
+THE APPLICABLE ARBITRATION RULES OF, THE AAA (THE “ADMINISTRATOR”) AS SELECTED
+BY THE INITIATING PARTY. IF THE PARTIES TO THE DISPUTE AGREE, ARBITRATION MAY BE
+COMMENCED BY APPOINTMENT OF A LICENSED ATTORNEY WHO IS SELECTED BY THE PARTIES
+TO THE DISPUTE AND WHO AGREES TO CONDUCT THE ARBITRATION WITHOUT AN
+ADMINISTRATOR. DISPUTES INCLUDE MATTERS (I) RELATING TO A DEPOSIT ACCOUNT,
+APPLICATION FOR OR DENIAL OF CREDIT, ENFORCEMENT OF ANY OF THE OBLIGATIONS ANY
+PARTY HERETO HAS TO ANY OF THE OTHER PARTIES HERETO, COMPLIANCE WITH APPLICABLE
+LAWS AND/OR REGULATIONS, PERFORMANCE OF SERVICES PROVIDED UNDER ANY AGREEMENT BY
+ANY PARTY HERETO, (II) BASED ON OR ARISING FROM AN ALLEGED TORT OR (III)
+INVOLVING ANY PARTY’S EMPLOYEES, AGENTS, AFFILIATES OR ASSIGNS, DISPUTES DO NOT,
+HOWEVER, INCLUDE THE VALIDITY, ENFORCEABILITY, MEANING OR SCOPE OF THIS
+ARBITRATION PROVISION AND SUCH MATTERS MAY BE DETERMINED ONLY BY A COURT. IF A
+THIRD PARTY IS A PARTY TO A DISPUTE, EACH PARTY HERETO CONSENTS TO INCLUDING THE
+THIRD PARTY IN THE ARBITRATION PROCEEDING FOR RESOLVING THE DISPUTE WITH THE
+THIRD PARTY. VENUE FOR THE ARBITRATION PROCEEDING SHALL BE AT A LOCATION
+DETERMINED BY MUTUAL AGREEMENT OF THE PARTIES THERETO OR, ABSENT SUCH AN
+AGREEMENT, IN THE CITY AND STATE WHERE THE AGENT IS HEADQUARTERED.
+
+ 
+
+IF A COURT ISSUES AN ARBITRATION ORDER, ALL PARTIES TO THE DISPUTE THAT DID NOT
+SEEK THE ARBITRATION ORDER SHALL COMMENCE ARBITRATION. THE PARTY HERETO THAT
+SOUGHT THE ARBITRATION ORDER MAY COMMENCE ARBITRATION, BUT SHALL HAVE NO
+OBLIGATION TO DO SO, AND SHALL NOT IN ANY WAY BE ADVERSELY PREJUDICED BY
+INITIATING OR PARTICIPATING IN LITIGATION OR ELECTING NOT TO COMMENCE
+ARBITRATION. THE ARBITRATOR SHALL (I) HEAR AND RULE ON APPROPRIATE DISPOSITIVE
+MOTIONS FOR JUDGMENT ON THE PLEADINGS, FOR FAILURE TO STATE A CLAIM OR FOR FULL
+OR PARTIAL SUMMARY JUDGMENT, (II) RENDER A DECISION AND ANY AWARD APPLYING
+APPLICABLE LAW, (III) GIVE EFFECT TO ANY LIMITATIONS PERIOD IN DETERMINING ANY
+DISPUTE OR DEFENSE, (IV) ENFORCE THE DOCTRINES OF COMPULSORY COUNTERCLAIM, RES
+JUDICATA AND COLLATERAL ESTOPPEL, IF APPLICABLE, (V) WITH REGARD TO MOTIONS AND
+THE ARBITRATION HEARING, APPLY RULES OF EVIDENCE GOVERNING CIVIL CASES AND (VI)
+APPLY THE LAW OF THE STATE SPECIFIED IN THE AGREEMENT GIVING RISE TO THE
+DISPUTE. FILING OF A PETITION FOR ARBITRATION SHALL NOT PREVENT ANY PARTY FROM
+(I) SEEKING AND OBTAINING FROM A COURT OF COMPETENT JURISDICTION
+(NOTWITHSTANDING ONGOING ARBITRATION) PROVISIONAL OR ANCILLARY REMEDIES,
+INCLUDING INJUNCTIVE RELIEF, PROPERTY PRESERVATION ORDERS, FORECLOSURE,
+EVICTION, ATTACHMENT, REPLEVIN, GARNISHMENT AND/OR THE APPOINTMENT OF A
+RECEIVER, (II) PURSUING NON-JUDICIAL FORECLOSURE OR (III) AVAILING ITSELF OF ANY
+SELF-HELP REMEDIES, SUCH AS SETOFF AND REPOSSESSION. THE EXERCISE OF SUCH RIGHTS
+SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT TO SUBMIT ANY DISPUTE TO ARBITRATION.
+
+  
+
+ - 80 -
+
+  
+
+ 
+
+JUDGMENT UPON AN ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
+JURISDICTION, EXCEPT THAT, IF THE ARBITRATION AWARD EXCEEDS $50,000, ANY PARTY
+TO THE RELEVANT DISPUTE SHALL BE ENTITLED TO A DE NOVO APPEAL OF THE AWARD
+BEFORE A PANEL OF THREE ARBITRATORS. TO ALLOW FOR SUCH APPEAL, IF THE AWARD
+(INCLUDING THE ADMINISTRATOR’S, THE ARBITRATOR’S AND ATTORNEY’S FEES AND COSTS)
+EXCEEDS $50,000, THE ARBITRATOR WILL ISSUE A WRITTEN, REASONED DECISION
+SUPPORTING THE AWARD, INCLUDING A STATEMENT OF AUTHORITY AND ITS APPLICATION TO
+THE DISPUTE. A REQUEST FOR DE NOVO APPEAL MUST BE FILED WITH THE ARBITRATOR
+WITHIN 30 DAYS FOLLOWING THE DATE OF THE ARBITRATION AWARD. IF SUCH A REQUEST IS
+NOT MADE WITHIN THAT TIME PERIOD, THE ARBITRATION DECISION SHALL BECOME FINAL
+AND BINDING. ON APPEAL, THE ARBITRATORS SHALL REVIEW THE AWARD DE NOVO, MEANING
+THAT THEY SHALL REACH THEIR OWN FINDINGS OF FACT AND CONCLUSIONS OF LAW, RATHER
+THAN DEFERRING IN ANY MANNER TO THE ORIGINAL ARBITRATOR. APPEAL OF AN
+ARBITRATION AWARD SHALL BE PURSUANT TO THE RULES OF THE ADMINISTRATOR OR, IF THE
+ADMINISTRATOR HAS NO SUCH RULES, THEN THE AAA ARBITRATION APPELLATE RULES SHALL
+APPLY.
+
+    
+
+ARBITRATION UNDER THIS PROVISION CONCERNS A TRANSACTION INVOLVING INTERSTATE
+COMMERCE AND SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. § 1 ET
+SEQ. THIS ARBITRATION PROVISION SHALL SURVIVE ANY TERMINATION, AMENDMENT OR
+EXPIRATION OF THIS AGREEMENT. IF THE TERMS OF THIS PROVISION VARY FROM THE
+ADMINISTRATOR’S RULES, THIS ARBITRATION PROVISION SHALL CONTROL. (D) EACH PARTY
+HERETO (I) CERTIFIES THAT NO ONE HAS REPRESENTED TO SUCH PARTY THAT ANY OTHER
+PARTY WOULD NOT SEEK TO ENFORCE JURY AND CLASS ACTION WAIVERS IN THE EVENT OF
+SUIT, AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO
+ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, AGREEMENTS
+AND CERTIFICATIONS IN THIS SECTION 9.13. THE BORROWERS HEREBY KNOWINGLY,
+VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHTS TO
+TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION
+THAT RELATES TO OR ARISES OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
+THE ACTS OR OMISSIONS OF THE AGENT OR ANY LENDER IN THE ENFORCEMENT OF ANY OF
+THE TERMS OR PROVISIONS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
+OTHERWISE WITH RESPECT THERETO. THE PROVISIONS OF THIS SECTION 9.13 ARE A
+MATERIAL INDUCEMENT FOR THE AGENT AND EACH OF THE LENDERS TO ENTER INTO THIS
+AGREEMENT.
+
+ 
+
+(d) EACH PARTY HERETO (I) CERTIFIES THAT NO ONE HAS REPRESENTED TO SUCH PARTY
+THAT ANY OTHER PARTY WOULD NOT SEEK TO ENFORCE JURY AND CLASS ACTION WAIVERS IN
+THE EVENT OF SUIT, AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN
+INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS,
+AGREEMENTS AND CERTIFICATIONS IN THIS SECTION 9.13.
+
+ 
+
+THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND
+UNCONDITIONALLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT,
+PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION THAT RELATES TO OR ARISES OUT OF
+THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE ACTS OR OMISSIONS OF THE AGENT
+OR ANY LENDER IN THE ENFORCEMENT OF ANY OF THE TERMS OR PROVISIONS OF THIS
+AGREEMENT OR ANY OTHER LOAN DOCUMENT OR OTHERWISE WITH RESPECT THERETO. THE
+PROVISIONS OF THIS SECTION 9.13 ARE A MATERIAL INDUCEMENT FOR THE AGENT AND EACH
+OF THE LENDERS TO ENTER INTO THIS AGREEMENT.
+ 
+
+
+
+9.14 Jurisdiction and Venue. All actions or proceedings with respect to, arising
+directly or indirectly in connection with, out of, related to or from this
+Agreement or any other Loan Document may be litigated, at the sole discretion
+and election of the Agent, in courts having situs in New York, New York County,
+New York. In such regard, each Borrower hereby submits to the jurisdiction of
+any local, state or federal court located in New York, New York County, New
+York, and hereby waives any rights it may have to transfer or change the
+jurisdiction or venue of any litigation brought against it by the Agent or any
+Lender in accordance with this Section 9.14.
+
+ 
+
+ - 81 -
+
+  
+
+ 
+
+9.15 Integration. This Agreement and the other Loan Documents constitute the
+entire agreement among the parties hereto and thereto with respect to the
+subject hereof and thereof and shall supersede any prior agreement among the
+parties hereto and thereto, whether written or oral, relating to the subject
+matter hereof and thereof, including any term sheet or summary of principal
+terms provided to the Borrowers by Arena Investors, LP, the Agent or any Lender.
+Furthermore, in this regard, this Agreement and the other written Loan Documents
+represent, collectively, the final agreement among the parties thereto and may
+not be contradicted by evidence of prior, contemporaneous or subsequent oral
+agreements of such parties. There are no unwritten oral agreements among such
+parties.
+
+ 
+
+9.16 Waiver of Punitive and Consequential Damages. Each Borrower, the Agent and
+each Lender hereby knowingly, voluntarily, intentionally and irrevocably (a)
+waives, to the maximum extent it may lawfully and effectively do so, any right
+it may have to claim or recover, in any Dispute based hereon or directly or
+indirectly at any time arising out of, under or in connection with the Loan
+Documents or any transaction contemplated thereby or associated therewith,
+before or after maturity, any special, exemplary, punitive or consequential
+damages, or damages other than, or in addition to, actual damages and (b)
+acknowledge that it has been induced to enter into this Agreement, the other
+Loan Documents and the transactions contemplated hereby and thereby by, among
+other things, the mutual waivers and certifications contained in this Section
+9.16.
+
+  
+
+9.17 Counterparts. For the convenience of the parties, this Agreement may be
+executed in multiple counterparts and by different parties hereto in separate
+counterparts, each of which for all purposes shall be deemed to be an original,
+and all such counterparts shall together constitute but one and the same
+Agreement. In this regard, each of the parties hereto acknowledges that a
+counterpart of this Agreement containing a set of counterpart execution pages
+reflecting the execution of each party hereto shall be sufficient to reflect the
+execution of this Agreement by each party hereto.
+
+ 
+
+9.18 USA Patriot Act Notice. Each Lender and the Agent (for itself and not on
+behalf of any Lender) hereby notifies each Borrower that, pursuant to the
+requirements of the USA Patriot Act, it is required to obtain, verify and record
+information that identifies each Borrower, which information includes the name
+and address of the relevant Borrower and other information that will allow such
+Lender or the Agent, as applicable, to identify each Borrower in accordance with
+the USA Patriot Act.
+
+ 
+
+9.19 Tax Shelter Regulations. None of the Borrowers intend to treat the Term
+Loan and related transactions hereunder and under the other Loan Documents as a
+“reportable transaction” (within the meanings under current Treasury Regulation
+Section 1.6011‑4 and Proposed Treasury Regulation Section 1.6011-4, promulgated
+on November 1, 2006). In the event the Borrowers determines to take any action
+inconsistent with the foregoing statement, it will promptly notify the Agent
+thereof. If the Borrowers so notifies the Agent, the Borrowers acknowledge that
+one or more of the Lenders may treat its Percentage Share of the Term Loan and
+the related transactions hereunder and under the other Loan Documents as part of
+a transaction that is subject to current Treasury Regulation Section 301.6112-1
+or Proposed Treasury Regulation Section 301.6112-1, promulgated on November 1,
+2006, and, in such case, such Lender or Lenders, as applicable, will maintain
+the lists and other records required, if any, by such Treasury Regulations.
+
+   
+
+9.20 Contribution and Indemnification. In the event that the Borrowers pay
+(whether through direct payments or as a result of providing Collateral for the
+Obligations) any amounts on the Obligations in excess of the relevant Borrowers’
+Obtained Benefit (the “Excess Payments”), the relevant Borrower shall be
+entitled to make demand on the other Borrowers for such Excess Payments, and to
+receive from each other Borrowers that received an Obtained Benefit, such
+Borrowers’ Contribution Percentage of the Excess Payment. If any party obligated
+to make such a payment is unable to pay the Contribution Percentage of the
+Excess Payment, each other Borrowers agrees to make a contribution to the party
+entitled to such payment to the extent necessary so that each Borrowers shares
+equally the liability for such Excess Payment in relation to the relative
+Obtained Benefit received by such Borrowers. In such regard, to the maximum
+extent permitted by law, each Borrowers shall indemnify, defend and hold
+harmless the other Borrowers from and against such Borrowers’ Contribution
+Percentage of any and all liability, claims, costs and expenses (including
+reasonable attorneys’ fees and expenses) arising with respect to the Obligations
+and exceeding such other Borrowers’ Obtained Benefit as provided herein. Any
+amount due under this Section 9.20 shall be due and payable within ten days of
+demand therefor by the party entitled to payment and shall be made to the party
+entitled thereto at the address for notices to the Borrowers under this
+Agreement, in immediately available funds, not later than 2:00 p.m., Eastern
+Standard or Daylight Time, on the date on which such payment shall come due. The
+remedies available to the Borrowers pursuant to the provisions of this Section
+9.20 are not exclusive. All rights and claims of contribution, indemnification
+and reimbursement under this Section 9.20 shall be subordinate in right of
+payment to the prior payment in full of all principal of and interest on the
+Term Loan and all fees payable hereunder. The provisions of this Section 9.20
+shall, to the extent expressly inconsistent with any provision in any Loan
+Document, supersede such inconsistent provision.
+
+ 
+
+9.21 Inconsistencies with Other Documents. In the event there is a conflict or
+inconsistency between this Agreement and any other Loan Document, the terms of
+this Agreement shall control; provided that any provision of the Security
+Documents which imposes additional burdens on the Borrowers or any of their
+respective Subsidiaries or further restricts the rights of Borrowers or any of
+their respective Subsidiaries or gives the Agent or Lenders additional rights
+shall not be deemed to be in conflict or inconsistent with this Agreement and
+shall be given full force and effect.
+
+ 
+
+(Signatures appear on following pages)
+
+ 
+
+ - 82 -
+
+  
+
+ 
+
+
+
+IN WITNESS WHEREOF, this Agreement is executed as of the date first above
+written.
+
+ 
+
+
+
+ 
+
+BORROWERS:
+
+ 
+
+ 
+
+  
+
+ 
+
+ 
+
+ELYSIUM ENERGY, LLC,
+a Nevada limited liability company
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+ELYSIUM ENERGY LA, LLC,
+a Louisiana limited liability company
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+ELYSIUM ENERGY TX, LLC,
+a Texas limited liability company
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+POINTE A LA HACHE, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+
+
+ 
+
+(Signature Page to Term Loan Agreement)
+
+ 
+
+ - 83 -
+
+  
+
+  
+
+
+
+ 
+
+TURTLE BAYOU, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+POTASH, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+RAMOS FIELD, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+ 
+
+  
+
+ 
+
+ 
+
+HOLDINGS
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+ELYSIUM ENERGY HOLDINGS, LLC,
+a Nevada limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+/s/ James A. Doris
+
+ 
+
+ 
+
+Name:
+
+James A Doris
+
+ 
+
+ 
+
+Title:
+
+President and Chief Executive Officer
+
+ 
+
+
+
+
+
+ 
+
+(Signature Page to Term Loan Agreement)
+
+ 
+
+
+
+ - 84 -
+
+  
+
+  
+
+
+
+ 
+
+AGENT:
+
+ 
+
+ 
+
+  
+
+ 
+
+ 
+
+405 WOODBINE LLC,
+a Delaware limited liability company
+as Agent
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+By:
+
+/s/ Lawrence Cutler
+
+ 
+
+ 
+
+ 
+
+Lawrence Cutler
+
+ 
+
+ 
+
+ 
+
+Authorized Signatory
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+LENDER:
+
+ 
+
+ 
+
+     
+
+ 
+
+ 
+
+405 WOODBINE LLC,
+a Delaware limited liability company
+
+ 
+
+ 
+
+       
+
+ 
+
+ 
+
+By:
+
+/s/ Lawrence Cutler
+
+ 
+
+ 
+
+ 
+
+Lawrence Cutler
+
+ 
+
+ 
+
+ 
+
+Authorized Signatory
+
+ 
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+ 
+
+Applicable Lending Office:
+
+ 
+405 Lexington Avenue
+59th Floor
+New York, New York 10174
+Attn: Greg White
+E-mail: gwhite@arenaco.com and reporting@arenaco.com
+
+ 
+
+     
+
+
+
+(Signature Page to Term Loan Agreement)
+
+ 
+
+
+
+ - 85 -
+
+  
+
+        
+
+
+
+ 
+
+LENDER:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+AFG INVESTMENTS 1A, LLC,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+/s/ Jeff Leu
+
+ 
+
+ 
+
+Name:
+
+Jeff Leu
+
+ 
+
+ 
+
+Title:
+
+President
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+Applicable Lending Office:
+
+60 S. 6th Street
+Suite 3720
+Minneapolis, MN 55402
+Attn: Tiffany Parr and Dave Ellingrud
+E-mail: tiffany.parr@mcgintyroad.com and dave.ellingrud@mcgintyroad.com
+
+ 
+
+
+
+ 
+
+(Signature Page to Term Loan Agreement)
+
+  
+
+
+
+ - 86 -
+
+  
+
+    
+
+
+
+ 
+
+LENDER:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+CARGILL, INCORPORATED,
+a Delaware corporation
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+/s/ Tyler R. Smith
+
+ 
+
+ 
+
+Name:
+
+Tyler R. Smith
+
+ 
+
+ 
+
+Title:
+
+Authorized Signer
+
+ 
+
+ 
+
+ 
+
+Applicable Lending Office:
+
+9320 Excelsior Boulevard
+Mail Stop #150
+Hopkins, Minnesota 55343
+Attn: Tyler Smith
+E-mail: tyler_smith_1@cargill.com
+
+ 
+
+
+
+ 
+
+(End of signature pages)
+
+ 
+
+(Signature Page to Term Loan Agreement)
+
+ 
+
+ - 87 -
+
+  
+
+ 
+
+
+
+SCHEDULE 1.2B
+
+ 
+
+PERCENTAGE SHARES
+
+ 
+
+Name/Address for Notice
+
+ 
+
+Percentage Share
+
+ 
+
+ 
+
+Funded Amount
+
+ 
+
+ 
+
+Commitment
+
+ 
+
+405 Woodbine LLC
+405 Lexington Avenue
+59th Floor
+New York, New York 10174
+Attn: Greg White
+E-mail: gwhite@arenaco.com and reporting@arenaco.com
+
+ 
+
+ 
+
+71.4%
+
+ 
+
+$25,000,000.00
+
+ 
+
+ 
+
+$26,041,667.00
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+AFG Investments 1A, LLC
+60 South 6th Street
+Suite 3720
+Minneapolis, Minnesota
+Attn: Tiffany Parr and Dave Ellingrud
+E-mail: tiffany.parr@mcgintyroad.com and dave.ellingrud@mcintyroad.com
+
+ 
+
+ 
+
+27.6%
+
+ 
+
+$9,650,000.00
+
+ 
+
+ 
+
+$10,052,083.00
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+Cargill, Incorporated.
+9320 Excelsior Boulevard
+Mail Stop #150
+Hopkins, Minnesota 55343
+Attn: Tyler Smith
+E-mail: tyler_smith_1@cargill.com
+
+ 
+
+ 
+
+1.0%
+
+ 
+
+$350,000.00
+
+ 
+
+ 
+
+$364,583.00
+
+ 
+
+TOTAL:
+
+ 
+
+ 
+
+100%
+
+ 
+
+$35,000,000.00
+
+ 
+
+ 
+
+$36,458,333.00
+
+ 
+
+  
+
+S-1.2B-i
+
+ 
+
+ - 88 -
+
+  
+
+ 
+
+
+
+SCHEDULE 2.2
+
+ 
+
+USE OF LOAN PROCEEDS
+
+ 
+
+To complete the acquisition of certain assets of Seller in the St. Mary,
+Lafourche, Calcasieu, Plaquemines, Assumption, and Terrebonne parishes in
+Louisiana and the Matagorda, Nueces, San Jacinto, Colorado, Orange, Newton,
+Brooks, Jefferson, Hidalgo, San Patricio, and Starr Counties in Texas pursuant
+to the Acquisition Agreement, and for related expenses and working capital.
+
+ 
+
+ 
+
+S-4.18-i
+
+  
+
+ - 89 -
+
+  
+
+    
+
+
+
+SCHEDULE 4.22A
+
+ 
+
+SUBSIDIARIES
+
+ 
+
+ 
+
+Elysium Energy LA, LLC, Elysium Energy TX, LLC, Pointe a la Hache, L.L.C.,
+Turtle Bayou, L.L.C., Potash, L.L.C., and Ramos Field, L.L.C. are subsidiaries
+of Elysium Energy, LLC.
+
+ 
+
+Elysium Energy, LLC is a subsidiary of Elysium Energy Holdings, LLC.
+
+ 
+
+ 
+
+  
+
+ 
+
+S-4.22A-i
+
+   
+
+ - 90 -
+
+  
+
+  
+
+
+
+SCHEDULE 4.22B
+
+ 
+
+ORGANIZATIONAL CHART
+
+[vkin_ex101img1.jpg]
+
+ 
+
+ 
+
+S-4.22B-i
+
+ 
+
+
+
+
+
+ - 91 -
+
+  
+
+ 
+
+EXHIBIT A
+
+ 
+
+[FORM OF NOTE]
+
+ 
+
+PROMISSORY NOTE
+(this “Note”)
+
+ 
+
+
+
+$____________
+
+New York, New York
+
+________, ____
+
+
+
+ 
+
+FOR VALUE RECEIVED and WITHOUT GRACE (except to the extent, if any, provided in
+the Loan Agreement, as hereinafter defined), the undersigned (collectively,
+“Makers”), jointly and severally, promise to pay to the order of
+_________________________ (“Payee”), at the Principal Office (as such term is
+defined in the Loan Agreement), the sum of _____________ AND __/100 DOLLARS
+($_____________) or so much thereof as may remain unpaid pursuant to the Term
+Loan Agreement dated February 3, 2020, by and among Makers, Agent and the
+lenders signatory thereto or bound thereby from time to time, including, without
+limitation, Payee (as amended, supplemented, restated or otherwise modified from
+time to time, the “Loan Agreement”), together with interest at the rates and
+calculated as provided in the Loan Agreement.
+
+ 
+
+Reference is hereby made to the Loan Agreement for matters governed thereby,
+including, without limitation, certain events which will entitle the holder
+hereof and/or Agent to accelerate the maturity of all amounts due hereunder.
+Capitalized terms used but not defined in this Note shall have the respective
+meanings assigned to such terms in the Loan Agreement.
+
+ 
+
+This Note is issued pursuant to, is a “Note” under and is payable as provided in
+the Loan Agreement. Subject to compliance with applicable provisions of the Loan
+Agreement, Makers or any of them may at any time prepay the full amount or any
+part of the Loan Balance evidenced by this Note without the payment of any
+premium or fee, but such payment shall not, until this Note is fully paid and
+satisfied, excuse the payment as it becomes due of any payment on this Note
+provided for in the Loan Agreement.
+
+ 
+
+Without being limited thereto or thereby, this Note is secured by the Security
+Documents.
+
+ 
+
+This Note shall be governed and controlled by the laws of the State of New York,
+without giving effect to principles thereof relating to conflicts of law.
+
+ 
+
+(Signatures appear on following pages)
+
+ 
+
+
+
+ 
+
+ A-i
+
+
+  
+
+ 
+
+
+
+ 
+
+MAKERS:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ELYSIUM ENERGY, LLC,
+a Nevada limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ELYSIUM ENERGY LA, LLC,
+a Louisiana limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ELYSIUM ENERGY TX, LLC,
+a Texas limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+
+
+ 
+
+ 
+
+ A-ii
+
+
+  
+
+ 
+
+ 
+
+
+
+ 
+
+POINTE A LA HACHE, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+TURTLE BAYOU, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+   
+
+ 
+
+ 
+
+ 
+
+POTASH, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+RAMOS FIELD, L.L.C.,
+a Delaware limited liability company
+
+ 
+
+ 
+
+ 
+
+ 
+
+ 
+
+By:
+
+ 
+
+ 
+
+ 
+
+Name:
+
+ 
+
+ 
+
+ 
+
+Title:
+
+ 
+
+ 
+
+
+
+ 
+
+
+
+ 
+
+A-iii
+
+ 
+
+ 
+Exhibit 10.3
+
+ 
+
+
+
+EXECUTIVE EMPLOYMENT AGREEMENT
+
+ 
+
+
+
+This Executive Employment Agreement (“Agreement”) is made and effective as of
+this 23rd day of April 2020 (the “Effective Date”) by and between DraftKings
+Inc., a Nevada corporation (“Company”), and Paul Liberman (“Executive”).
+
+ 
+
+W I T N E S S E T H
+
+ 
+
+
+
+WHEREAS, Executive was President of Global Technology and Product of DraftKings
+Inc., a Delaware corporation (“Former DK”), prior to the closing (the “Closing”)
+of the transactions contemplated by the Business Combination Agreement, dated as
+of December 22, 2019, as amended by Amendment No. 1 thereto, dated as of April
+7, 2020, among the Company, Diamond Eagle Acquisition Corp., SBTech (Global)
+Limited and certain other parties thereto, following which Former DK became a
+wholly owned subsidiary of the Company;
+
+ 
+
+WHEREAS, the Company desires to continue to employ the Executive as President of
+Global Technology and Product of the Company following the Closing; and
+
+ 
+
+WHEREAS, the Company and the Executive desire to enter into this Agreement to
+set forth the terms of the Executive’s employment with the Company.
+
+ 
+
+NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
+contained herein and of other good and valuable consideration, the receipt and
+sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
+follows:
+
+ 
+
+1.       POSITION AND DUTIES.
+
+ 
+
+
+
+
+
+(a)       GENERAL. Commencing on the Effective Date, Executive shall continue to
+serve as the Company’s President of Global Technology and Product and shall
+report directly to the Chief Executive Officer of the Company (the “CEO”). In
+this position, Executive shall have such duties, authorities and
+responsibilities as are customary for an employee in such position, and such
+other duties, authorities and responsibilities as may reasonably be assigned to
+the Executive from time to time by the CEO. The Executive’s principal place of
+employment with the Company shall be at the Company’s headquarters located in
+Boston, Massachusetts or such other place as approved by the CEO.
+
+ 
+
+(b)       OTHER ACTIVITIES. For so long as Executive remains in the employ of
+the Company (the “Employment Term”), the Executive shall devote substantially
+all of the Executive’s business time, energy, knowledge and skill to the
+performance of the Executive’s duties with the Company, provided that the
+foregoing shall not prevent the Executive from engaging in any non-Company
+activity of any kind so long as such activity, together with any other
+non-Company activity, does not pose a conflict of interest or materially
+interfere with Executive’s performance of his duties under this Agreement, as
+determined in the reasonable good faith discretion of the CEO.
+
+ 
+
+2.       ANNUAL BASE SALARY. During the Employment Term, the Company agrees to
+pay the Executive an annual base salary at an annual rate of $425,000, payable
+subject to standard federal and state payroll withholding requirements in
+accordance with the regular payroll practices of the Company. The Executive’s
+annual base salary shall be subject to annual review by the Company’s Board of
+Directors (“Board”) (or a committee thereof), and may be increased (but not
+decreased) from time to time as determined by the Board (or a committee
+thereof). The annual base salary as may be increased from time to time shall
+constitute “Annual Base Salary” for purposes of this Agreement.
+
+ 
+
+
+
+ 
+
+ 
+
+ 
+
+3.       INCENTIVE COMPENSATION.
+
+ 
+
+(a)       Annual Cash Incentive. During the Employment Term, Executive shall be
+eligible for a minimum annual target cash incentive opportunity of 125% of
+Annual Base Salary (as may be increased from time to time, the “Target Annual
+Cash Incentive”), provided Executive shall have the opportunity to earn a
+greater annual cash incentive for performance above target and, if the annual
+cash incentive opportunity for performance above target is subject to a maximum,
+such maximum shall be equal to an amount that is at least equal to 200% of the
+Target Annual Cash Incentive. The Executive’s Target Annual Cash Incentive shall
+be subject to annual review by the Board (or a committee thereof), and may be
+increased (but not decreased) from time to time as determined by the Board (or a
+committee thereof). The Board (or a committee thereof) shall set reasonable and
+appropriate Company and/or individual performance goals for each annual cash
+incentive opportunity, in consultation with the CEO, by no later than (i) June
+30 for the 2020 performance year, and (ii) March 31 for each performance year
+thereafter. The earned annual cash incentive (the “Annual Cash Incentive”) for
+any given fiscal year will be determined based on overall Company performance
+and/or Executive’s individual performance (as applicable), as determined in the
+sole discretion of the Board (or a committee thereof) and provided Executive
+remains employed by the Company through the applicable performance period. Any
+such Annual Cash Incentive shall be paid to Executive at the same time that
+annual cash incentives are paid to other senior executives of the Company,
+provided, in any event, any such Annual Cash Incentive shall be paid by no later
+than March 15th of the year following the applicable performance year.
+
+ 
+
+(b)       Annual Equity Incentive. During the Employment Term, the Company shall
+grant Executive an annual equity incentive award within the first three (3)
+months of each fiscal year (or the first seven (7) months for fiscal year 2020)
+of the Company with a minimum aggregate target value of $3,500,000 for each such
+award (as may be increased from time to time, the “Annual Equity Incentive
+Award”), with the valuation methodology for such awards to be determined by the
+Board (or a committee thereof) in the reasonable good faith exercise of its
+discretion. The Executive’s Annual Equity Incentive Award shall be subject to
+annual review by the Board (or a committee thereof), and may be increased (but
+not decreased) from time to time as determined by the Board (or a committee
+thereof). The Annual Equity Incentive Awards will be comprised of a mix of fifty
+percent (50%) of the minimum aggregate target value granted as restricted stock
+units, with time-based vesting conditions that are not less favorable than
+vesting in equal quarterly installments over four years, and fifty percent (50%)
+of the minimum aggregate target value granted as performance stock units
+(“PSUs”), provided Executive shall have the opportunity to earn a greater amount
+of PSUs for performance above target and, if the performance-based vesting for
+such PSUs for performance above target is subject to a maximum, such maximum
+shall be equal to an amount that is at least equal to 300% of one half (1/2) of
+the minimum aggregate target value. The performance/vesting period for such PSUs
+shall be between two (2) and three (3) years, as determined by the Board (or a
+committee thereof) in the reasonable good faith exercise of its discretion. The
+Board (or a committee thereof) shall set reasonable and appropriate Company
+and/or individual performance goals for each annual PSU grant, in consultation
+with the Chief Executive Officer, by no later than (i) July 31st for the 2020
+performance year, and (ii) March 31 for each performance year thereafter. The
+earned PSUs for any given fiscal year will be determined based on overall
+Company performance and/or Executive’s individual performance (as applicable),
+as determined in the sole discretion of the Board (or a committee thereof) and
+provided Executive remains employed by the Company through the applicable
+performance period.
+
+ 
+
+4.       EXECUTIVE BENEFITS.
+
+ 
+
+(a)       BENEFIT PLANS. During the Employment Term, the Executive shall be
+entitled to participate in any employee and/or executive benefit plan that the
+Company has adopted or may adopt, maintain or contribute to for the benefit of
+its employees and/or executives generally, currently including, without
+limitation, health and dental insurance coverage, long-term and short-term
+disability insurance coverage and group life insurance coverage, subject, in all
+events to satisfying the applicable eligibility requirements, and except to the
+extent such plans are duplicative of the benefits otherwise provided hereunder.
+The Executive’s participation will be subject to the terms of the applicable
+plan documents and generally applicable Company policies. Notwithstanding the
+foregoing, the Company may modify or terminate any employee and/or executive
+benefit plan at any time.
+
+ 
+
+
+
+ 2 
+
+ 
+
+ 
+
+(b)       VACATION TIME. During the Employment Term, the Executive shall be
+entitled to paid vacation in accordance with the Company’s policy applicable to
+its executives as in effect from time to time.
+
+ 
+
+(c)       BUSINESS EXPENSES. Upon presentation of such reasonable substantiation
+and documentation as the Company reasonably may specify from time to time, the
+Executive shall be reimbursed for all reasonable out-of-pocket business expenses
+incurred and paid by the Executive during the Employment Term in connection with
+the performance of the Executive’s duties hereunder.
+
+ 
+
+5.       TERMINATION. The Executive’s employment under this Agreement and the
+Employment Term shall terminate on the first of the following to occur:
+
+ 
+
+(a)       DISABILITY. Thirty (30) days after written notice by the Company to
+the Executive of a termination due to Disability. For purposes of this
+Agreement, “Disability” shall be defined as the inability of the Executive to
+perform the Executive’s material duties hereunder with a reasonable
+accommodation due to a physical or mental injury, infirmity or incapacity for
+one hundred and twenty (120) days (including weekends and holidays) in any three
+hundred sixty-five (365) day period; provided such disability also qualifies as
+a “disability” as defined in Treasury Regulation Section 1.409A-3(i)(4)(i). The
+Executive shall reasonably cooperate with the Company if a question arises as to
+whether the Executive has become disabled.
+
+ 
+
+(b)       DEATH. Automatically upon the date of death of the Executive.
+
+ 
+
+(c)       CAUSE. Thirty (30) days after written notice by the Company to the
+Executive of a termination for Cause if the Executive shall have failed to cure
+or remedy such matter, if curable, within such thirty (30) day period. In the
+event that the basis for Cause is not curable, then such thirty (30) day cure
+period shall not be required, and such termination shall be effective on the
+date the Company delivers notice of such termination for Cause. “Cause” shall
+mean the Company’s termination of the Executive’s employment with the Company or
+any of its subsidiaries as a result of: (i) fraud, embezzlement or any willful
+act of material dishonesty by the Executive in connection with or relating to
+the Executive’s employment with the Company or any of its subsidiaries; (ii)
+theft or misappropriation of property, information or other assets by the
+Executive in connection with the Executive’s employment with the Company or any
+of its subsidiaries which results in or could reasonably be expected to result
+in material loss, damage or injury to the Company and its subsidiaries, their
+goodwill, business or reputation; (iii) the Executive’s conviction, guilty plea,
+no contest plea, or similar plea for any felony or any crime that results in or
+could reasonably be expected to result in material loss, damage or injury to the
+Company and its subsidiaries, their goodwill, business or reputation; (iv) the
+Executive’s use of alcohol or drugs while working that materially interferes
+with the ability of Executive to perform the Executive’s material duties
+hereunder; (v) the Executive’s material breach of a material Company policy, or
+material breach of a Company policy that results in or could reasonably be
+expected to result in material loss, damage or injury to the Company and its
+subsidiaries, their goodwill, business or reputation; (vi) the Executive’s
+material breach of any of his obligations under this Agreement; or (vii) the
+Executive’s repeated insubordination, or refusal (other than as a result of a
+Disability or physical or mental illness) to carry out or follow specific
+reasonable and lawful instructions, duties or assignments given by the CEO which
+are consistent with Executive’s position with the Company; provided, that, for
+clauses (i) – (vii) above, the Company delivers written notice to Executive of
+the condition giving rise to Cause within ninety (90) days after the Company
+becomes aware of its initial occurrence. For avoidance of doubt, the Executive
+being deemed an Unsuitable Person, as defined in that certain Amended and
+Restated Articles of Incorporation of the Company as in effect on the Effective
+Date (an “Unsuitable Person”), shall not independently constitute Cause (but any
+circumstances giving rise to the Executive being deemed an Unsuitable Person
+shall constitute Cause to the extent such circumstances are grounds provided in
+clauses (i) – (vii) above).
+
+ 
+
+
+
+ 3 
+
+ 
+
+ 
+
+(d)       WITHOUT CAUSE. The date of termination set forth in any written notice
+by the Company to the Executive of an involuntary termination without Cause
+(other than death or Disability).
+
+ 
+
+
+
+(e)       GOOD REASON. Thirty (30) days after written notice by the Executive to
+the Company of an alleged condition giving rise to a resignation for Good Reason
+if the Company shall have failed to cure or remedy such matter, if curable,
+within such thirty (30) day period. In the event that the basis for Good Reason
+is not curable, then such thirty (30) day cure period shall not be required, and
+such resignation shall be effective on the date the Executive delivers such
+notice. “Good Reason” shall mean the occurrence of any of the following events,
+without the express written consent of the Executive: (i) the Company’s material
+breach of any of its obligations under this Agreement; (ii) any material adverse
+change in the Executive’s duties or authority or responsibilities, or the
+assignment of duties or responsibilities to the Executive materially
+inconsistent with his position; (iii) the Executive no longer serving as the
+President of Global Technology and Product of the Company; (iv) reduction in the
+Executive’s Annual Base Salary, Target Annual Cash Incentive or Annual Equity
+Incentive Award (other than across-the-board reductions affecting similarly
+situated senior executives of the Company or any of its subsidiaries); (v) the
+Company requires Executive to relocate to a facility or location that increases
+Executive’s one-way commute by more than thirty-five (35) miles from the
+location at which Executive was working immediately prior to the required
+relocation; or (vi) the failure of a successor to the Company to assume the
+Company’s obligations under this Agreement; provided, that, for clauses (i) –
+(vi) above, Executive has given written notice to the Company of the condition
+giving rise to Good Reason within ninety (90) days after Executive becomes aware
+of its initial occurrence.
+
+ 
+
+(f)       WITHOUT GOOD REASON. Thirty (30) days after written notice by the
+Executive to the Company of the Executive’s voluntary termination of employment
+without Good Reason (which the Company may, in its sole discretion, make
+effective earlier).
+
+ 
+
+6.       CONSEQUENCES OF TERMINATION.
+
+ 
+
+(a)       DEATH OR DISABILITY. In the event that the Executive’s employment ends
+on account of the Executive’s death or Disability, the Executive or the
+Executive’s estate, as the case may be, shall be entitled to the following (with
+the amounts due under Sections 6(a)(i) through 6(a)(iii) hereof to be paid
+within thirty (30) days following termination of employment, or such earlier
+date as may be required by applicable law):
+
+ 
+
+(i)       any unpaid Annual Base Salary earned through the date of termination;
+
+ 
+
+(ii)       reimbursement for any unreimbursed business expenses incurred through
+the date of termination;
+
+ 
+
+(iii)       all other accrued and vested payments, benefits or fringe benefits
+required to be paid or provided to the Executive under the applicable plans or
+by law, including without limitation, payment for all accrued vacation
+(collectively, Sections 6(a)(i) through 6(a)(iii) hereof shall be hereafter
+referred to as the “Accrued Benefits”); and
+
+ 
+
+
+
+ 4 
+
+ 
+
+ 
+
+(iv)       provided Executive is in full compliance with his obligations under
+Exhibits A and B attached hereto and Executive or the Executive’s estate, as the
+case may be, executes, returns to the Company and does not revoke the release
+and waiver of claims in the form attached hereto as Exhibit C (with such changes
+as may be required in order to reflect or comply with applicable laws at such
+time, as determined by the Company in its reasonable judgment, the “Release and
+Waiver”) and the Release and Waiver becomes effective pursuant to its terms and
+conditions, all within sixty (60) days following termination of employment, then
+the Company shall also provide Executive or the Executive’s estate, as the case
+may be, with the following:
+
+ 
+
+A.       Full vesting of all outstanding unvested equity-based awards, including
+the portions of Annual Equity Incentive Awards, that are solely subject to
+time-based vesting on the date of such termination, and Executive or the
+Executive’s estate, as the case may be, shall have twelve (12) months after
+termination of employment to exercise all stock options that were vested at the
+time of such termination of employment and all stock options that vest pursuant
+to this Section 6(a)(iv)(A) in connection with such termination (provided such
+stock options shall remain subject to the maximum original term and expiration
+of such stock options).
+
+ 
+
+B.       Vesting of the portions of all outstanding unvested Annual Equity
+Incentive Awards that are solely subject to performance-based vesting on the
+date of such termination, with such vesting determined based on actual
+performance against the applicable performance goals established for the
+applicable awards, as determined at the time and in the manner applicable to
+such awards pursuant to the applicable stock plans and award agreements, with
+such awards remaining outstanding through the date such vesting is determined.
+Notwithstanding the foregoing, if any such awards are in the form of stock
+options, such stock options shall remain outstanding until such time as
+Executive or the Executive’s estate, as the case may be, shall have twelve (12)
+months after the later of Executive’s termination of employment, or the vesting
+of the applicable stock options, to exercise such stock options that were vested
+at the time of such termination of employment and such stock options that vest
+pursuant to this Section 6(a)(iv)(B) in connection with such termination
+(provided such stock options shall remain subject to the maximum original term
+and expiration of such stock options).
+
+ 
+
+C.       Vesting of all outstanding unvested equity-based awards that are solely
+subject to performance-based vesting on the date of such termination other than
+Annual Equity Incentive Awards (typically referred to by the Company as
+“LTIPs”), with such vesting determined based on actual performance against the
+applicable performance goals established for the applicable awards through the
+date that is two (2) years following Executive’s termination of employment,
+subject to the maximum original term and expiration of the applicable award (the
+“Performance Vesting End Date”), as determined at the time and in the manner
+applicable to such awards pursuant to the applicable stock plans and award
+agreements, with such awards remaining outstanding through the date such vesting
+is determined, not to exceed the Performance Vesting End Date; provided, if the
+Performance Vesting End Date falls in the middle of a performance/vesting period
+applicable to an award, the total shares that shall vest in relation to such
+performance period shall be pro-rated based on the number of days between the
+first day of the performance/vesting period and the Performance Vesting End
+Date. Notwithstanding the foregoing, if any such awards are in the form of stock
+options, such stock options shall remain outstanding until such time as
+Executive or the Executive’s estate, as the case may be, shall have twelve (12)
+months after the later of Executive’s termination of employment, or the vesting
+of the applicable stock options, to exercise such stock options that were vested
+at the time of such termination of employment and such stock options that vest
+pursuant to this Section 6(a)(iv)(C) in connection with such termination
+(provided such stock options shall remain subject to the maximum original term
+and expiration of such stock options).
+
+ 
+
+
+
+ 5 
+
+ 
+
+ 
+
+(b)       TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If the Executive’s
+employment is terminated (i) by the Company for Cause, or (ii) by the Executive
+without Good Reason, the Company shall pay to the Executive the Accrued
+Benefits, at such times as set forth in Section 6(a) above.
+
+ 
+
+(c)       TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the Executive’s
+employment by the Company is terminated (x) by the Company without Cause, or (y)
+by the Executive for Good Reason (each, a “Qualifying Termination”), then the
+Company will provide Executive with the Accrued Benefits at such times as set
+forth in Section 6(a) above and, provided Executive is in full compliance with
+his obligations under Exhibits A and B attached hereto and Executive executes,
+returns to the Company and does not revoke the Release and Waiver and the
+Release and Waiver becomes effective pursuant to its terms and conditions, all
+within sixty (60) days following termination of employment, then the Company
+shall also pay or provide the Executive with the following:
+
+ 
+
+(i)       Termination in Connection with Change in Control. In the event of a
+Qualifying Termination within eighteen (18) months after a Change in Control (as
+defined below), or within three (3) months before a Change in Control, the
+Company shall provide Executive:
+
+ 
+
+A.       Cash severance in an amount equal to two times the sum of (x) Annual
+Base Salary plus (y) Target Annual Cash Incentive, less all applicable
+withholdings and deductions, payable on the first regular payroll date of the
+Company that is sixty (60) days following the date of Executive’s termination.
+
+ 
+
+B.       Continued participation through COBRA coverage or such other method
+determined by the Company (all costs, expenses and premiums to be paid by
+Company) on the same basis as the employee and/or executive benefit plans
+contemplated by Section 4(a) hereof in which the Executive is participating on
+the date of such termination of employment for 24 months following the month in
+which coverage would otherwise be lost as an employee of the Company; provided
+that the Executive is eligible and remains eligible for coverage under such
+plans by timely electing COBRA continuation, if applicable; and provided,
+further, that in the event that the Executive obtains other employment that
+offers Executive health benefits such that Executive is not eligible for COBRA
+continuation rights, such continuation of coverage by the Company under this
+Section (6)(c)(i)(B) shall immediately cease (such 24 month or shorter period,
+the “COBRA Payment Period”). Notwithstanding the foregoing, if at any time the
+Company determines that its payment of COBRA premiums on Executive’s behalf or
+other method of continued participation would result in a violation of
+applicable law (including but not limited to the 2010 Patient Protection and
+Affordable Care Act, as amended by the 2010 Health Care and Education
+Reconciliation Act), then in lieu of paying COBRA premiums or providing such
+other method of continued participation pursuant to this Section, the Company
+shall pay Executive on the last day of each remaining month of the COBRA Payment
+Period, a fully taxable cash payment equal to the COBRA premium or such other
+payment for such month, subject to applicable tax withholding (such amount, the
+“Special Severance Payment”), such Special Severance Payment to be made without
+regard to Executive’s payment of COBRA premiums and without regard to the
+expiration of the COBRA period prior to the end of the COBRA Payment Period.
+Nothing in this Agreement shall deprive Executive of his rights under COBRA or
+ERISA for benefits under plans and policies arising under his employment by the
+Company.
+
+ 
+
+C.       Full vesting of all outstanding unvested equity-based awards (including
+Annual Equity Incentive Awards) on the date of such termination or, if later,
+the consummation of the Change in Control, with any performance-based vesting
+conditions for performance periods that are not completed as of the date of
+termination deemed satisfied at the target level.
+
+ 
+
+
+
+ 6 
+
+ 
+
+ 
+
+(ii)       Termination Not in Connection with Change in Control. In the event of
+a Qualifying Termination that is not within eighteen (18) months after a Change
+in Control, and not within three (3) months before a Change in Control, the
+Company shall provide Executive:
+
+ 
+
+A.       Cash severance in an amount equal to two times the Executive’s Annual
+Base Salary, less all applicable withholdings and deductions, payable on the
+first regular payroll date of the Company that is sixty (60) days following the
+date of Executive’s termination.
+
+ 
+
+B.       An additional cash severance amount in an amount equal to the Annual
+Cash Incentive to which Executive would be entitled for the year of termination
+if Executive were employed by the Company on the last day of such year, based on
+actual performance against the applicable performance goals established for such
+bonus, pro-rated based on the number of days Executive was employed by the
+Company during such year, less all applicable withholdings and deductions,
+payable at the same time as bonuses are paid to active employees but no later
+than March 15 of the year after the year of termination.
+
+ 
+
+C.       Continued participation through COBRA coverage or such other method
+determined by the Company (all costs, expenses and premiums to be paid by
+Company) on the terms and conditions set forth in Section 6(c)(i)(B).
+
+ 
+
+D.       Pro rata vesting of all outstanding unvested equity-based awards
+(including the portions of Annual Equity Incentive Awards) that are solely
+subject to time-based vesting on the date of such termination based on the
+number of days Executive was employed by the Company during the vesting period
+during which the termination occurs.
+
+ 
+
+E.       Pro rata vesting of all outstanding unvested equity-based awards
+(including the portions of Annual Equity Incentive Awards) that are subject to
+performance-based vesting on the date of such termination, with such vesting
+determined based on actual performance against the applicable performance goals
+established for the applicable awards, as determined at the time and in the
+manner applicable to such awards pursuant to the applicable stock plans and
+award agreements, with such awards remaining outstanding through the date such
+vesting is determined, and pro-rated based on the number of days Executive was
+employed by the Company during the applicable performance/vesting periods.
+
+ 
+
+(iii)       “Change in Control” for purposes of this Section 6 will have the
+meaning set forth in the DraftKings Inc. 2020 Incentive Award Plan (or its
+successor as in effect at the time of a Qualifying Termination). For the
+avoidance of doubt, the Closing shall not constitute a Change in Control.
+
+ 
+
+7.       RETURN OF COMPANY PROPERTY. Within ten (10) days after Executive’s
+termination of employment with the Company for any reason, the Executive shall
+return all property belonging to the Company or its affiliates (including, but
+not limited to, any Company-provided laptops, computers, cell phones, wireless
+electronic mail devices and other equipment, documents and property belonging to
+the Company).
+
+ 
+
+8.       REPRESENTATIONS AND WARRANTIES.
+
+ 
+
+
+
+ 7 
+
+ 
+
+ 
+
+(a)       AUTHORIZATION. All corporate action on the part of the Company and its
+directors necessary for the authorization, execution and delivery of this
+Agreement by the Company, and the performance of all of the Company’s
+obligations under this Agreement has been taken.
+
+ 
+
+(b)       ENFORCEABILITY. This Agreement, when executed and delivered by the
+Company, will constitute valid and legally binding obligations of the Company,
+enforceable in accordance with its terms.
+
+ 
+
+
+
+9.       NO ASSIGNMENTS. This Agreement is personal to each of the parties
+hereto and no party may assign or delegate any rights or obligations hereunder
+without first obtaining the written consent of the other party hereto; provided,
+however that the Company may assign this Agreement to any successor to all or
+substantially all of the business and/or assets of the Company; provided,
+further, that the Company shall require such successor to expressly assume and
+agree to perform this Agreement in the same manner and to the same extent that
+the Company would be required to perform it if no such succession had taken
+place. As used in this Agreement, “Company” shall mean the Company and any
+successor to its business and/or assets, which assumes and agrees to perform the
+duties and obligations of the Company under this Agreement by operation of law
+or otherwise.
+
+ 
+
+10.       NOTICE. For purposes of this Agreement, notices and all other
+communications provided for in this Agreement shall be in writing and shall be
+deemed to have been duly given (a) on the date of delivery, if delivered by
+hand, (b) upon receipt of confirmation of successful transmission, if delivered
+by facsimile, (c) on the date of delivery, if delivered by overnight delivery
+service, or mailed by registered or certified mail, return receipt requested,
+postage prepaid, addressed as follows:
+
+ 
+
+If to the Executive:
+
+ 
+
+
+
+Paul Liberman
+
+Address on file with the Company
+
+ 
+
+With a copy (which shall not constitute notice) to:
+
+ 
+
+_______________
+
+_______________
+
+_______________
+
+_______________
+
+_______________
+
+ 
+
+ 
+
+If to the Company:
+
+ 
+
+DraftKings Inc.
+
+Attn: Chief Legal Officer
+
+222 Berkley Street, 5th Floor
+
+Boston, MA 02116
+
+Fax: (617) 977-1727
+
+ 
+
+or to such other address or fax number as either party may have furnished to the
+other in writing in accordance herewith.
+
+ 
+
+
+
+ 8 
+
+ 
+
+ 
+
+11.       SECTION HEADINGS; INCONSISTENCY. The section headings used in this
+Agreement are included solely for convenience and shall not affect, or be used
+in connection with, the interpretation of this Agreement.
+
+ 
+
+12.       SEVERABILITY. Each provision of this Agreement will be construed as
+separable and divisible from every other provision and the enforceability of any
+one (1) provision will not limit the enforceability, in whole or in part, of any
+other provision.  In the event that a court or administrative body of competent
+jurisdiction holds any provision of this Agreement to be invalid, illegal, void
+or less than fully enforceable as to time, scope or otherwise, then such
+provision will be construed by limiting and reducing it so that such provision
+is valid, legal and fully enforceable while preserving to the greatest extent
+permissible the original intent of the parties; the remaining terms and
+conditions of this Agreement will not be affected by such alteration, and will
+remain in full force and effect.
+
+ 
+
+13.       COUNTERPARTS. This Agreement may be executed in several counterparts,
+each of which shall be deemed to be an original but all of which together will
+constitute one and the same instrument.
+
+ 
+
+14.       GOVERNING LAW; ARBITRATION. This Agreement, the rights and obligations
+of the parties hereto, and all claims or disputes relating thereto, shall be
+governed by and construed in accordance with the laws of the Commonwealth of
+Massachusetts, without regard to the choice of law provisions thereof. Except
+for disputes arising under Exhibit A, Exhibit B, Exhibit C or Exhibit D hereof,
+which shall be decided pursuant to the terms of those Exhibits, any dispute
+arising from this Agreement or Executive’s employment with the Company,
+including but not limited to claims for wrongful termination; violation of Title
+VII of the Civil Rights Act of 1964 as amended; violations of the Americans with
+Disabilities Act of 1990; violations of Massachusetts law, including without
+limitation claims pursuant to Chapter 151B of the Massachusetts General Laws and
+the Massachusetts Wage Act and Overtime law; or claims for violations of any
+state law or rule or regulation regarding discrimination, harassment or other
+wrongful conduct (collectively, “Covered Claims”), shall be decided solely and
+exclusively in a final and binding arbitration administered by the JAMS in
+Boston, Massachusetts, in accordance with the JAMS Employment Arbitration Rules
+in effect at the time of the filing of the demand for arbitration (the “Rules”),
+a copy of which is available at
+http://www.jamsadr.com/rules-employment-arbitration/.  The arbitrator shall be a
+single arbitrator with expertise in employment disputes, mutually selected by
+the parties, or, if the parties are unable to agree thereon, a single arbitrator
+with expertise in employment disputes designated by the Boston office of JAMS. 
+The arbitrator shall have the authority to award all remedies available in a
+court of law. The Company shall pay the arbitrator’s fees and all fees and costs
+to administer the arbitration.  The parties acknowledge and agree that their
+obligations to arbitrate under this Section survive the termination of the
+Agreement and continue after the termination of the employment relationship
+between the Executive and the Company. By agreeing to arbitrate disputes arising
+out of Executive’s employment, both the Executive and the Company voluntarily
+and irrevocably waive any and all rights to have any such dispute heard or
+resolved in any forum other than through arbitration as provided herein. This
+waiver specifically includes, but is not limited to, any right to trial by jury.
+Notwithstanding anything to the contrary set forth herein, this Section will not
+apply to claims for workers’ compensation or unemployment benefits, any claim
+for injunctive or equitable relief, or any claim arising from Exhibit A, Exhibit
+B, Exhibit C or Exhibit D to this Agreement brought by the Company or the
+Executive, which shall be governed by the terms and conditions thereof.  All
+arbitration proceedings hereunder shall be confidential, except: (a) to the
+extent the parties otherwise agree in writing; (b) as may be otherwise
+appropriate in response to a request from a government agency, subpoena, or
+legal process; (c) if the substantive law of the State of Massachusetts (without
+giving effect to choice of law principles) provides to the contrary; or (d) as
+is necessary in a court proceeding to enforce, correct, modify or vacate the
+arbitrator’s award or decision (and in the case of this subpart (d), the parties
+agree to take all reasonable steps to ensure that the arbitrator’s award,
+decision or findings and all other documents, pleadings and papers are filed
+and/or entered with the court under seal and/or in a manner that would maintain
+their confidentiality, including, without limitation, complying with all rules
+of procedure and local rules for filing documents, pleadings and papers under
+seal).
+
+ 
+
+
+
+ 9 
+
+ 
+
+ 
+
+
+
+15.       MISCELLANEOUS. No provision of this Agreement may be modified, waived
+or discharged unless such waiver, modification or discharge is agreed to in
+writing and signed by the Executive and the CEO or other authorized
+representative of the Company. No waiver by either party hereto at any time of
+any breach by the other party hereto of, or compliance with, any condition or
+provision of this Agreement to be performed by such other party shall be deemed
+a waiver of similar or dissimilar provisions or conditions at the same or at any
+prior or subsequent time. This Agreement, the exhibits attached hereto, and the
+Transaction Performance Award Letter Agreement entered into between the Company
+and Executive contemporaneously herewith collectively set forth the entire
+agreement of the parties hereto in respect of the subject matter contained
+herein and supersede any and all prior agreements or understandings between the
+Executive and the Company with respect to the subject matter hereof. No
+agreements or representations, oral or otherwise, express or implied, with
+respect to the subject matter hereof have been made by either party which are
+not expressly set forth in this Agreement. In the event of any conflict or
+inconsistency between the terms and conditions of this Agreement and any offer
+letter, form, award, plan or policy of the Company, the terms of this Agreement
+shall govern and control. Notwithstanding the foregoing, in the event of any
+conflict or inconsistency between this Agreement (including the exhibits hereto)
+and the DraftKings Inc. 2017 Equity Incentive Plan or the DraftKings Inc. 2012
+Stock Option & Restricted Stock Incentive Plan (or any award agreement under
+such plans to which Executive is a party) regarding (1) the definitions of
+“Cause” or “Disability”, (2) the treatment of equity-based awards in connection
+with a termination of employment (whether before or after a Change in Control)
+or (3) the governing law and dispute resolution procedures, then such provisions
+in this Agreement (including the exhibits hereto) shall control. Notwithstanding
+the foregoing, the Executive shall remain bound by all covenants, duties and
+obligations relating to confidentiality, ownership of intellectual property,
+non-solicitation, non-competition and all other post-employment restrictive
+covenants, duties and obligations with respect to which the Executive agreed to
+be bound in connection with the Executive’s employment with the Company,
+including without limitation such covenants, obligations and duties set forth in
+the Noncompetition, Nonsolicitation, Nondisclosure & Assignment of Inventions
+Agreement dated March 13, 2013; the Stock Option Grant Notice And Post
+Employment Noncompetition Covenant (2017 Equity Incentive Plan), dated June 4,
+2019; the Stock Option Grant Notice And Post Employment Noncompetition Covenant
+(2017 Equity Incentive Plan), dated June 4, 2019; and the Stock Option Grant
+Notice And Post Employment Noncompetition Covenant (2017 Equity Incentive Plan),
+dated June 4, 2019 (collectively, the “Restrictive Covenants”). The
+post-employment covenants, duties and obligations set forth in this Agreement
+are intended to supplement – not replace – the Restrictive Covenants.
+
+ 
+
+16.       TAX MATTERS.
+
+ 
+
+(a)       WITHHOLDING. The Company may withhold from any and all amounts payable
+under this Agreement or otherwise such federal, state and local taxes as may be
+required to be withheld pursuant to any applicable law or regulation.
+
+ 
+
+(b)     �� SECTION 409A COMPLIANCE.
+
+ 
+
+(i)       The intent of the parties is that payments and benefits under this
+Agreement are exempt from or comply with Internal Revenue Code Section 409A and
+the regulations and guidance promulgated thereunder (collectively “Code Section
+409A”) and, accordingly, to the maximum extent permitted, this Agreement shall
+be interpreted to be in compliance therewith. To the extent that any provision
+hereof is modified in order to comply with Code Section 409A, such modification
+shall be made in good faith and shall, to the maximum extent reasonably
+possible, maintain the original intent and economic benefit to the Executive and
+the Company of the applicable provision without violating the provisions of Code
+Section 409A.
+
+ 
+
+
+
+ 10 
+
+ 
+
+ 
+
+(ii)       To the extent required to prevent the imposition of taxes or
+penalties under Code Section 409A, a termination of employment shall not be
+deemed to have occurred for purposes of any provision of this Agreement
+providing for the payment of any amount or benefit upon or following a
+termination of employment unless such termination is also a “separation from
+service” within the meaning of Code Section 409A and, for purposes of any such
+provision of this Agreement, references to a “termination,” “termination of
+employment” or like terms shall mean “separation from service.” Notwithstanding
+anything to the contrary in this Agreement, if the Executive is deemed on the
+date of termination to be a “specified employee” within the meaning of that term
+under Code Section 409A(a)(2)(B), then with regard to any payment or the
+provision of any benefit that is considered “nonqualified deferred compensation”
+under Code Section 409A payable on account of a “separation from service,” such
+payment or benefit shall not be made or provided until the date which is the
+earlier of (A) the expiration of the six (6)-month period measured from the date
+of such “separation from service” of the Executive, and (B) the date of the
+Executive’s death, to the extent required under Code Section 409A. Upon the
+expiration of the foregoing delay period, all payments and benefits delayed
+pursuant to this Section 16(b)(ii) (whether they would have otherwise been
+payable in a single sum or in installments in the absence of such delay) shall
+be paid or reimbursed to the Executive in a lump sum, and all remaining payments
+and benefits due under this Agreement shall be paid or provided in accordance
+with the normal payment dates specified for them herein.
+
+ 
+
+(iii)       To the extent that reimbursements or other in-kind benefits under
+this Agreement constitute “nonqualified deferred compensation” for purposes of
+Code Section 409A, (A) all expenses or other reimbursements hereunder shall be
+made on or prior to the last day of the taxable year following the taxable year
+in which such expenses were incurred by the Executive, (B) any right to
+reimbursement or in-kind benefits shall not be subject to liquidation or
+exchange for another benefit, and (C) no such reimbursement, expenses eligible
+for reimbursement, or in-kind benefits provided in any taxable year shall in any
+way affect the expenses eligible for reimbursement, or in-kind benefits to be
+provided, in any other taxable year.
+
+ 
+
+(iv)       For purposes of Code Section 409A, the Executive’s right to receive
+installment payments pursuant to this Agreement shall be treated as a right to
+receive a series of separate and distinct payments. Whenever a payment under
+this Agreement specifies a payment period with reference to a number of days,
+the actual date of payment within the specified period shall be within the sole
+discretion of the Company.
+
+ 
+
+(v)       Notwithstanding any other provision of this Agreement to the contrary,
+in no event shall any payment or benefit under this Agreement that constitutes
+“nonqualified deferred compensation” for purposes of Code Section 409A be
+subject to offset by any other amount unless otherwise permitted by Code Section
+409A.
+
+ 
+
+17.       NONSOLICITATION, NONDISCLOSURE & ASSIGNMENT OF INVENTIONS AGREEMENT
+AND NONCOMPETITION COVENANT. As a condition of continuing employment and as a
+condition to be eligible to receive the severance compensation set forth herein,
+Executive agrees to execute and abide by the Nonsolicitation, Nondisclosure &
+Assignment of Inventions Agreement in the form attached as Exhibit A and the
+Noncompetition Covenant in the form attached as Exhibit B (together the
+“Covenants”). The execution of the Covenants by Executive is a condition
+precedent to this agreement becoming effective. The Covenants contain provisions
+that are intended by the parties to survive and do survive termination of this
+Agreement.
+
+ 
+
+
+
+ 11 
+
+ 
+
+ 
+
+18.       INDEMNIFICATION. Executive will be insured under the Company’s
+Director’s and Officer’s Liability Insurance to the extent the Company maintains
+such a policy and will be entitled to indemnification by the Company pursuant to
+the terms and conditions of the Company’s certification of incorporation and
+by-laws to the same extent as the Company’s executive officers and directors
+pursuant to an Indemnification Agreement between the Company and the Executive
+substantially in the form attached hereto as Exhibit D.
+
+ 
+
+19.       GOLDEN PARACHUTE. Anything in this Agreement to the contrary
+notwithstanding, if any payment or benefit Executive would receive from the
+Company or otherwise (a “Payment”) would (a) constitute a “parachute payment”
+within the meaning of Internal Revenue Code Section 280G (“Code Section 280G”);
+and (b) but for this Section 19, be subject to the excise tax imposed by
+Internal Revenue Code Section 4999 (the “Excise Tax”), then such Payment shall
+be equal to the Reduced Amount. For purposes of this Agreement, the “Reduced
+Amount” shall be either (x) the largest portion of the Payment that would result
+in no portion of the Payment being subject to the Excise Tax; or (y) the largest
+portion, up to and including the total, of the Payment, whichever amount, after
+taking into account all applicable federal, state and local employment taxes,
+income taxes, and the Excise Tax (all computed at the highest applicable
+marginal rate), results in Executive’s receipt, on an after-tax basis, of the
+greater amount of the Payment. Any reduction made pursuant to this Section 19
+shall be made in accordance with the following order of priority: (i) Full
+Credit Payments (as defined below) that are payable in cash, (ii) non-cash Full
+Credit Payments that are taxable, (iii) non-cash Full Credit Payments that are
+not taxable, (iv) Partial Credit Payments (as defined below), (v) non-cash
+employee welfare benefits and (vi) stock options whose exercise price exceeds
+the fair market value of the optioned stock. In each case, reductions shall be
+made in reverse chronological order such that the payment or benefit owed on the
+latest date following the occurrence of the event triggering the Excise Tax will
+be the first payment or benefit to be reduced (with reductions made pro-rata in
+the event payments or benefits are owed at the same time). For purposes of this
+Agreement, “Full Credit Payment” means a payment, distribution or benefit,
+whether paid or payable or distributed or distributable pursuant to the terms of
+this Agreement or otherwise, that if reduced in value by one dollar reduces the
+amount of the parachute payment (as defined in Code Section 280G) by one dollar,
+determined as if such payment, distribution or benefit had been paid or
+distributed on the date of the event triggering the excise tax. For purposes of
+this Agreement, “Partial Credit Payment” means any payment, distribution or
+benefit that is not a Full Credit Payment. In no event shall Executive has any
+discretion with respect to the ordering of payment reductions. Unless the
+Company and Executive otherwise agree in writing, any determination required
+under this Section 19 will be made in writing by a certified professional
+services firm selected by the Company, the Company’s legal counsel or such other
+person or entity to which the parties mutually agree (the “Firm”), whose
+determination will be conclusive and binding upon Executive and the Company for
+all purposes. For purposes of making the calculations required by this Section
+19, the Firm may make reasonable assumptions and approximations concerning
+applicable taxes and may rely on reasonable, good faith interpretations
+concerning the application of Code Section 280G and Internal Revenue Code
+Section 4999. The Company and Executive will furnish to the Firm such
+information and documents as the Firm may reasonably request in order to make a
+determination under this Section 19. The Company will bear all costs the Firm
+may reasonably incur in connection with any calculations contemplated by this
+Section 19.
+
+ 
+
+ 
+
+[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
+
+ 
+
+
+
+ 12 
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
+date first written above.
+
+ 
+
+
+
+ 
+
+  DRAFTKINGS INC., a Nevada corporation       By:  /s/ R. Stanton Dodge        
+Name: R. Stanton Dodge         Title: Chief Legal Officer              
+EXECUTIVE       /s/ Paul Liberman   Name: Paul Liberman      
+
+ 
+
+
+
+ 13 
+
+ 
+
+ 
+
+EXHIBIT A
+
+ 
+
+NONSOLICITATION, NONDISCLOSURE & ASSIGNMENT OF INVENTIONS AGREEMENT
+
+ 
+
+The undersigned Employee (the “Employee”), executes this Nonsolicitation,
+Nondisclosure & Assignment of Inventions Agreement (the “Agreement”) in
+consideration of, and a material inducement for, the Company’s (as defined
+below) continuing relationship with Employee, whether by employment, contractor,
+or in advisory or consulting capacities, or otherwise, and in consideration of
+receiving any form of compensation or benefit from or in the Company, and the
+entering into of the Executive Employment Agreement (the “Employment
+Agreement”). Employee understands and agrees that this Agreement shall remain in
+effect and survive any and all changes in Employee’s job duties, titles and
+compensation during Employee’s relationship with Company.
+
+ 
+
+Definitions
+
+ 
+
+i.“Company” shall mean DraftKings Inc., a Nevada corporation, and any entity
+controlled by, controlling, or under common control with it, including
+affiliates and subsidiaries. “Control” for this purpose means the direct or
+indirect possession of the power to direct or cause the direction of the
+management and policies of an entity, whether through ownership, by contract or
+otherwise.
+
+ 
+
+ii.“Competing Business” shall mean any person, firm, association, corporation or
+any other legal entity that is engaged in a business that is competitive with
+any aspect of the Business of the Company, including but not limited to:
+FanDuel, Paddy Power Betfair, William Hill, bet365, PointsBet, Penn National,
+Barstool Sports, SugarHouse, 888, MGM, TheScore, BetStars, Unibet, Caesars,
+Golden Nugget, Bet America, Borgata, Harrahs, Oceans, Resorts, Tropicana,
+Virgin, and Pala.
+
+ 
+
+iii.“Business of the Company” shall mean the research, design, development,
+marketing, sales, operations, maintenance and commercial exploitation pertaining
+to the operation of, and providing products and services for: (1) fantasy sports
+contests (“FSC”); (2) Regulated Gaming (defined below); (3) all other products
+and services that exist, are in development, or are under consideration by the
+Company during Employee’s relationship with the Company (“Other Products and
+Services”); and (4) all products and services incidentally related to, or which
+are an extension, development or expansion of, FSC, Regulated Gaming and/or
+Other Products and Services (“Incidental Products and Services”).
+
+ 
+
+iv.“Regulated Gaming” shall mean the operation of games of chance or skill or
+pari-mutuel or fixed odds games (including, but not limited to, lotteries,
+pari-mutuel betting, bingo, race tracks, jai alai, legalized bookmaking,
+off-track betting, casino games, racino, keno, and sports betting or any play
+for fun (non-wagering) versions of the foregoing) and any type of ancillary
+service or product related to or connected with the foregoing.
+
+ 
+
+v.“Confidential Information” shall mean all information or a compilation of
+information, in any form (tangible or intangible or otherwise), that is not
+generally known to competitors or the public, which Company considers to be
+confidential and/or proprietary, including but not limited to: research and
+development; techniques; methodologies; strategies; product information,
+designs, prototypes and technical specifications; algorithms, source codes,
+object codes, trade secrets or technical data; training materials methods;
+internal policies and procedures; marketing plans and strategies; pricing and
+cost policies; customer, supplier, vendor and partner lists and accounts;
+customer and supplier preferences; contract terms and rates; financial data,
+information, reports, and forecasts; inventions, improvements and other
+intellectual property; product plans or proposed product plans; know-how;
+designs, processes or formulas; software and website applications; computer
+passwords; market or sales information, plans or strategies; business plans,
+prospects and opportunities (including, but not limited to, possible
+acquisitions or dispositions of businesses or facilities); information
+concerning existing or potential customers, partners or vendors. Confidential
+Information shall also mean information of or related to Company’s current or
+potential customers, vendors or partners that is considered to be confidential
+or proprietary to the applicable customer, vendor or partner.
+
+ 
+
+
+
+ A-1 
+
+ 
+
+ 
+
+Confidential Information does not include: information in the public domain
+(other than as a result of disclosure directly or indirectly by Employee);
+information approved in writing for unrestricted release by Company; or
+information produced or disclosed pursuant to a valid court order, provided
+Employee has given Company written notice of such request such that Company has
+an actual, reasonable opportunity to defend, limit or protect such production or
+disclosure.
+
+ 
+
+1.       Duty of Loyalty. During the period of Employee’s relationship with the
+Company, Employee will devote Employee’s best efforts on behalf of the Company.
+Employee agrees not to provide any services to any Competing Business or engage
+in any conduct which may create an actual or appear to create a conflict of
+interest, without the expressed, written permission of the Company.
+
+ 
+
+2.       Nonsolicitation of Customers, Clients or Vendors. During the period of
+Employee’s relationship with the Company and for a period of twelve (12) months
+after termination of such relationship (for any reason), Employee shall not
+directly or indirectly either for him/herself or for any other person,
+partnership, legal entity, or enterprise, solicit or transact business, or
+attempt to solicit or transact business with, any of the individuals or entities
+actually known to Employee to be the Company’s customers, clients, vendors or
+partners, or prospective customers, clients, vendors or partners, in all cases,
+about which Employee learned Confidential Information (as defined above) or
+which Employee had some involvement or knowledge related to the Business of the
+Company.
+
+ 
+
+3.       Nonsolicitation of Employees and Contractors. During the period of
+Employee’s relationship with the Company and for a period of twelve (12) months
+after termination of such relationship (for any reason), Employee will not
+directly or indirectly either for him/herself or for any other person,
+partnership, legal entity, or enterprise: (i) solicit, in person or through
+supervision or control of others, an employee, advisor, consultant or contractor
+of the Company for the purpose of inducing or encouraging the employee, advisor,
+consultant or contractor to leave his or her relationship with the Company or to
+change an existing business relationship with the Company or to change an
+existing business relationship to the detriment of the Company, (ii) hire away
+an employee, advisor, consultant or contractor of the Company; or (iii) help
+another person or entity hire away a Company employee, advisor, consultant or
+contractor. Notwithstanding the foregoing, the placement of general
+advertisements offering employment, other service relationships or activities
+that are not specifically targeted toward employees, advisors, consultants or
+contractors of the Company shall not be deemed to be a breach of this Section 3.
+
+ 
+
+
+
+ A-2 
+
+ 
+
+ 
+
+4.       Nondisclosure of Customer, Partner and Vendor Information. Employee
+understands and agrees that it is essential to the Company’s success that all
+nonpublic customer, partner, and vendor information is deemed and treated as
+Confidential Information and a confidential trade secret. Employee will not,
+directly or indirectly, either for him/herself or for any other person,
+partnership, legal entity, or enterprise, use or disclose any such customer,
+partner, or vendor information, except as may be necessary in the normal conduct
+of the Company’s business for the specific customer, partner, or vendor.
+Employee agrees that at the end of Employee’s relationship with the Company, or
+upon request by the Company, Employee will return to the Company any materials
+containing such information.
+
+ 
+
+5.       Nondisclosure of Confidential Information. All such Confidential
+Information is (and will be) the exclusive property of the Company, and Employee
+shall not, during or after Employee’s employment: (i) use any Confidential
+Information for any purpose that is not authorized by the Company; (ii) disclose
+any Confidential Information to any person or entity, except as authorized by
+the Company in connection with Employee’s job duties; or (iii) remove or
+transfer Confidential Information from the Company’s premises or systems except
+as authorized by the Company.
+
+ 
+
+Upon termination of Employee’s relationship (for any reason), or upon the
+request of the Company, Employee will immediately surrender to the Company all
+Company property in Employee’s possession, custody, or control, including any
+and all documents, electronic information, and materials of any nature
+containing any Confidential Information, without retaining any copies.
+
+ 
+
+Employee understands that the Company is now and may hereafter be subject to
+non-disclosure or confidentiality agreements with third persons that require the
+Company to protect or refrain from use of Confidential Information. Employee
+agrees to respect and be bound by the terms of such agreements in the event
+Employee has access to such Confidential Information.
+
+ 
+
+Employee understands that Confidential Information is never to be used or
+disclosed by Employee, as provided in this Section 5. If a temporal limitation
+on Employee’s obligation not to use or disclose such information is required
+under applicable law, and the Agreement or its restriction(s) cannot otherwise
+be enforced, Employee agrees and the Company agrees that the two (2) year period
+after the date Employee’s employment ends will be the temporal limitation
+relevant to the contested restriction; provided, however, that this sentence
+will not apply to trade secrets protected without temporal limitation under
+applicable law.
+
+ 
+
+Notwithstanding the foregoing or anything to the contrary in this Agreement or
+any other agreement between the Company and the Employee, nothing in this
+Agreement shall limit the Employee’s right to discuss Employee’s employment or
+report possible violations of law or regulation with the Equal Employment
+Opportunity Commission, United States Department of Labor, the National Labor
+Relations Board, the Securities and Exchange Commission, or other federal
+government agency or similar state or local agency or to discuss the terms and
+conditions of his employment with others to the extent expressly permitted by
+Section 7 of the National Labor Relations Act or to the extent that such
+disclosure is protected under the applicable provisions of law or regulation,
+including but not limited to “whistleblower” statutes or other similar
+provisions that protect such disclosure. Employee agrees to take all reasonable
+steps to ensure that the Company’s Confidential Information is not made public
+during any such disclosure. Pursuant to 18 U.S.C. Section 1833(b), the Employee
+shall not be held criminally or civilly liable under any Federal or State trade
+secret law for the disclosure of a trade secret that: (1) is made in confidence
+to a Federal, State, or local government official, either directly or
+indirectly, or to an attorney, and solely for the purpose of reporting or
+investigating a suspected violation of law; or (2) is made in a complaint or
+other document filed in a lawsuit or other proceeding, if such filing is made
+under seal.
+
+ 
+
+
+
+ A-3 
+
+ 
+
+ 
+
+6.       Assignment of Inventions. Employee expressly understands and agrees
+that any and all right or interest Employee obtains in any designs, trade
+secrets, technical specifications and technical data, know-how and show-how,
+customer and vendor lists, marketing plans, pricing policies, inventions,
+concepts, ideas, expressions, discoveries, improvements and patent or patent
+rights which are authored, conceived, devised, developed, reduced to practice,
+or otherwise obtained by him during the term of this Agreement which relate to
+or arise out of his relationship with the Company and which relate to the
+business of the Company are expressly regarded as “works for hire” or works
+invented or authored within the scope of employment or engagement, whether as an
+adviser, consultant, officer, executive, director or other capacity (the
+“Inventions”). Employee hereby assigns to the Company the sole and exclusive
+right to such Inventions. Any assignment of Inventions (and all intellectual
+property rights with respect thereto) hereunder includes an assignment of all
+“Moral Rights” (which shall mean all paternity, integrity, disclosure,
+withdrawal, special and any other similar rights recognized by the laws of any
+jurisdiction or country). To the extent such Moral Rights cannot be assigned to
+the Company and to the extent the following is allowed by the laws in any
+country where Moral Rights exist, Employee hereby unconditionally and
+irrevocably waives the enforcement of such Moral Rights, and all claims and
+causes of action of any kind against the Company or related to the Company’s
+customers, with respect to such rights. Employee further acknowledges and agrees
+that neither his successors-in-interest nor legal heirs retain any Moral Rights
+in any Inventions (and any intellectual property rights with respect thereto).
+
+ 
+
+Employee agrees to disclose all Inventions fully and in writing to the Company
+promptly after development, conception, invention, creation or discovery of the
+same, and at any time upon request. Employee will provide all assistance that
+the Company reasonably requests to secure or enforce its rights throughout the
+world with respect to Inventions, including signing all necessary documents to
+memorialize those rights and take any other action which the Company shall deem
+necessary to assign to and vest completely in the Company, to perfect trademark,
+copyright and patent protection with respect to, or to otherwise protect the
+Company’s trade secrets and proprietary interest in such Inventions. The
+obligations of this Section shall continue beyond the termination of Employee’s
+relationship with respect to such Inventions conceived of, reduced to practice,
+or developed by the Employee during the term of this Agreement. The Company
+agrees to pay any and all copyright, trademark and patent fees and expenses or
+other costs incurred by Employee for any assistance rendered to the Company
+pursuant to this Section.
+
+ 
+
+In the event the Company is unable, after reasonable effort, to secure
+Employee’s signature on any patent application, copyright or trademark
+registration or other analogous protection relating to an Invention, the
+Employee hereby irrevocably designates and appoints the Company and its duly
+authorized officer and agent as his agent and attorney-in-fact, to act for and
+on his behalf and stead to execute and file any such application or applications
+and to do all other lawfully permitted acts to further the prosecution and
+issuance of letters patent, copyright or other analogous protection thereon with
+the same legal force and effect as if executed by the Employee.
+
+ 
+
+In Attachment A to this Agreement, Employee has listed all Inventions that
+relate to the business of the Company that Employee (alone or jointly with
+others) made, conceived, or first reduced to practice by Employee prior to
+Employee’s execution of this Agreement, and in which Employee has any property
+interest or claim of ownership. If no such Inventions are listed in said
+Attachment, Employee represents that Employee has no such Inventions.
+
+ 
+
+
+
+ A-4 
+
+ 
+
+ 
+
+To the extent Employee is a citizen of and subject to law of a state which
+provides a limitation on invention assignments, then this Agreement’s assignment
+shall not include inventions excluded under such law.
+
+ 
+
+Notwithstanding anything to the contrary in this Section 6, this Section 6 shall
+not apply to inventions that the Employee develops entirely on his own time
+without using the Company’s equipment, supplies, facilities, or trade secret
+information, except to the extent such inventions (a) relate at the time of
+conception or reduction to practice of the invention to the Company’s business,
+or actual or demonstrably anticipated research or development of the Company; or
+(b) result from any work performed by the Employee for the Company.
+
+ 
+
+7.       Absence of Conflicting Agreements. Employee understands that the
+Company does not desire to acquire from Employee any trade secrets, know-how or
+confidential business information that Employee may have acquired from others,
+and Employee agrees not to disclose any such information to the Company or
+otherwise utilize any such information in connection with Employee’s performance
+of duties with the Company. Employee represents that Employee is not bound by
+any agreement or any other existing or previous business relationship which
+purports to conflict or impact the full performance of Employee’s duties and
+obligations to the Company.
+
+ 
+
+8.       Remedies Upon Breach. Employee agrees that any action that violates
+this Agreement would cause the Company irreparable harm for which monetary
+damages are inadequate. Accordingly, in the event of a breach, or threatened
+breach, the Company shall be entitled to an injunction restraining such breach
+or threatened breach, or requiring specific performance, in addition to any and
+all rights and remedies at law and equity. The Company shall not be obligated to
+present additional evidence of irreparable harm or the insufficiency of monetary
+damages and, to the extent permitted by law or under applicable court rule, does
+not need to post a bond or other surety. Nothing herein shall be construed as
+prohibiting the Company from pursuing any other remedy available to the Company
+for such breach or threatened breach.
+
+ 
+
+9.       Jurisdiction, Venue and Choice of Law The parties hereby mutually agree
+to the exclusive jurisdiction of the Superior Court (inclusive of the Business
+Litigation Session) of the Commonwealth of Massachusetts or the United States
+District Court for the District of Massachusetts for any dispute arising
+hereunder. Accordingly, with respect to any such court action, Employee (a)
+submits to the personal jurisdiction of such courts; (b) consents to service of
+process by regular mail to his last known address; and (c) waives any other
+requirement (whether imposed by statute, rule of court, or otherwise) with
+respect to personal jurisdiction or service of process. If either party hereto
+commences a legal action or other proceeding against the other party concerning
+a dispute arising from or relating to this Agreement outside of Massachusetts,
+such commencing party shall reimburse such other party for its or his reasonable
+attorneys’ fees, costs and expenses if such other party prevails in staying,
+transferring, dismissing or otherwise defending such action or proceeding based
+on the location of the action or proceeding, regardless of whether such fees,
+costs and expenses are incurred in the forum where such commencing party
+commenced the action or in a Massachusetts forum. This Agreement shall be
+governed by the internal substantive laws of Massachusetts, without regard to
+the doctrine of conflicts of law.
+
+ 
+
+10.       Employment Relationship. Employee agrees and acknowledges that
+Employee is an employee “at will” and nothing in this Agreement is intended to
+guarantee employment for any period of time. The parties enter this Agreement
+with the understanding that Employee’s position, title, duties and
+responsibilities could change in a material way in the future and, in light of
+that understanding, the parties intend that this Agreement shall follow Employee
+throughout the entire course of Employee’s employment with the Company, and such
+subsequent material change shall not affect the enforceability or validity of
+this Agreement.
+
+ 
+
+
+
+ A-5 
+
+ 
+
+ 
+
+11.Return of Property. Employee agrees that, at the time of termination of
+Employee’s employment (for any reason), Employee will return immediately to the
+Company, in good condition, all property of the Company. This return of property
+includes, without limitation, a return of physical property (such as computer,
+phone or other mobile devices, credit card, promotional materials, etc.) and
+intangible property (such as computer passwords).
+
+ 
+
+12.Litigation and Regulatory Cooperation. During and after the Employee’s
+relationship with the Company, Employee shall cooperate fully with the Company
+in the defense or prosecution of any claims or actions now in existence or that
+may be brought in the future against or on behalf of the Company by/against
+third parties that relate to events or occurrences that transpired while the
+Employee was employed by the Company. Employee’s full cooperation in connection
+with such claims or actions shall include, but not be limited to, being
+available to meet with counsel to prepare for discovery or trial and to act as a
+witness at mutually convenient times. During and after the Employee’s
+employment, Employee also shall cooperate fully with the Company in connection
+with any investigation or review of any federal, state, or local regulatory
+authority as any such investigation or review relates to events or occurrences
+that transpired while the Employee was employed by the Company, unless such
+claim is brought by Employee. As consideration for the Employee’s services under
+this Section 12, the Company shall remit to Employee, as agreed between the
+parties in advance, (a) reasonable expenses related to such cooperation, and (b)
+an hourly rate equal to Employee’s last base salary divided by 2,000.
+
+ 
+
+13.Communication to Future Employers. Employee agrees to communicate the
+contents of all post-relationship obligations in this Agreement to any Competing
+Business that Employee intends to be employed by, associated with, or represent.
+Employee understands and agrees that the Company may, in its discretion, also
+share any post-employment obligation set out in this Agreement with any future
+employer or potential employer of Employee, or any entity which seeks to be
+associated with Employee for Employee’s services.
+
+ 
+
+14.Miscellaneous. Any waiver by the Company of a breach of any provision of this
+Agreement shall not operate or be construed as a waiver of any subsequent breach
+hereof. If a court determines that one or more of the provisions contained in
+this Agreement shall be invalid or unenforceable, such court shall construe,
+reform or otherwise revise such provision(s) so as to render it/them enforceable
+to the maximum extent allowed by law, without invalidating the remaining
+provisions of this Agreement. The obligations of each party hereto under this
+Agreement shall survive the termination of the Employee’s relationship with the
+Company regardless of the manner of such termination to the extent expressly
+provided in, or logically would be expected under, this Agreement. All covenants
+and agreements hereunder shall inure to the benefit of and be enforceable by the
+successors of the Company. This Agreement amends, supplants and supersedes any
+agreement previously executed between the parties regarding the subject matter
+of this Agreement.
+
+ 
+
+
+
+Notwithstanding the foregoing, the Employee shall remain bound by all covenants,
+duties and obligations relating to confidentiality, ownership of intellectual
+property, non-solicitation, non-competition and all other post-employment
+restrictive covenants, duties and obligations with respect to which the Employee
+agreed to be bound in connection with the Employee’s employment with the
+Company, including without limitation such covenants, obligations and duties set
+forth in the Noncompetition, Nonsolicitation, Nondisclosure & Assignment of
+Inventions Agreement dated March 13, 2013; the Stock Option Grant Notice And
+Post Employment Noncompetition Covenant (2017 Equity Incentive Plan), dated June
+4, 2019; the Stock Option Grant Notice And Post Employment Noncompetition
+Covenant (2017 Equity Incentive Plan), dated June 4, 2019; and the Stock Option
+Grant Notice And Post Employment Noncompetition Covenant (2017 Equity Incentive
+Plan), dated June 4, 2019 (collectively, the “Restrictive Covenants”). The
+post-employment covenants, duties and obligations set forth in this Agreement
+are intended to supplement – not replace – the Restrictive Covenants.
+
+ 
+
+
+
+ A-6 
+
+ 
+
+ 
+
+Employee recognizes and agrees that the enforcement of this Agreement is
+necessary, among other things, to ensure the preservation, protection and
+continuity of Confidential Information, trade secrets and goodwill of the
+Company. Employee agrees that, due to the proprietary nature of the Business of
+the Company and relationships with others, the post-employment restrictions set
+forth above are reasonable as to duration and scope.
+
+ 
+
+Employee is advised to consult with an attorney before entering into this
+Agreement.
+
+
+
+
+
+
+ A-7 
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the undersigned Employee and the Company have executed this
+Nonsolicitation, Nondisclosure and Assignment of Inventions Agreement as an
+instrument under seal as of this 23rd day of April, 2020.
+
+ 
+
+
+
+DraftKings Inc.   Employee   ��               /s/ R. Stanton Dodge   /s/ Paul
+Liberman By: R. Stanton Dodge   Name: Paul Liberman Title: Chief Legal Officer  
+ 
+
+ 
+
+
+
+ A-8 
+
+ 
+
+  
+
+NONSOLICITATION, NONDISCLOSURE & ASSIGNMENT OF INVENTIONS AGREEMENT
+
+ 
+
+Attachment A
+
+ 
+
+List of all inventions or improvements (referred to in Section 6) made by
+Employee, alone or jointly with others, prior to joining the Company.
+
+ 
+
+ 
+
+Right, Title or Interest
+
+(If none, please write “NONE”.)
+
+ 
+
+  Date Acquired   Identifying Number or Brief Description of Inventions or
+Improvements                                      
+
+ 
+
+  
+
+Name of Employee:       Paul Liberman   Print       /s/ Paul Liberman   Sign    
+  April 23, 2020   Date  
+
+ 
+
+
+
+  
+
+ 
+
+ 
+
+EXHIBIT B
+
+ 
+
+Noncompetition Covenant
+
+ 
+
+(a)During the period of your relationship with Company, you, Paul Liberman
+(hereinafter “you”) agree to not, anywhere within the Restricted Area (defined
+below), acting individually, or as an owner, shareholder, partner, employee,
+contractor, agent or otherwise (other than on behalf of Company): provide
+services to a Competing Business (defined below). For a period of twelve (12)
+months following termination of your relationship with Company (for any reason
+other than referenced below in section (b)), you agree to not, anywhere within
+the Restricted Area, acting individually, or as an owner, shareholder, partner,
+employee, contractor, agent or otherwise (other than on behalf of Company):
+provide services to a Competing Business that relate to any aspect of the
+Business of the Company (i.e., FSC, Regulated Gaming, Other Products and
+Services, and/or Incidental Products and Services) for which you performed
+services or received confidential information at any time during the twelve (12)
+month period prior to such termination. For example, if you performed services
+for the FSC aspect of the Business of the Company and received confidential
+information about the Regulated Gaming aspect of the Business of the Company
+during the twelve (12) month period prior to the termination of your
+relationship with the Company (for any reason other than referenced below in
+section (b)), then for twelve (12) months after such termination, you shall not,
+anywhere within the Restricted Area, acting individually, or as an owner,
+shareholder, partner, employee, contractor, agent or otherwise (other than on
+behalf of Company), provide services to a Competing Business that relate to FSC
+or Regulated Gaming. The foregoing shall not be construed to preclude you from
+(i) owning up to one percent (1%) of the outstanding stock of a publicly held
+corporation that constitutes or is affiliated with a Competing Business, or (ii)
+becoming a shareholder, partner, contractor, agent, member, employee or
+otherwise of a private equity, venture capital or other investment firm, and
+providing services in connection therewith. The foregoing shall, however, be
+construed to specifically prevent you from (x) acting individually, or as an
+owner, shareholder, partner, employee, contractor, agent or otherwise (other
+than on behalf of Company) anywhere within the Restricted Area, during the
+period of your relationship with the Company and for a period of twelve (12)
+months following termination of your relationship with Company (for any reason
+other than referenced below in section (b)), and (y) providing services that
+relate to any aspect of the Business of the Company for any private equity,
+venture capital or other investment firm that at any time during such twelve
+(12) month period, has investments in any Competing Business; provided that you
+may work for a division, entity or subgroup of any companies that engage in a
+Competing Business (a “Separate BU”) so long as such Separate BU does not engage
+in any Competing Business and you do not provide any investment advice or
+consulting related to any Competing Business. To the extent that you act
+individually, or as an owner, shareholder, partner, employee, contractor, agent
+or otherwise and provide services unrelated to the Business of the Company for
+any Separate BU or private equity, venture capital or other investment firm at
+any time during such twelve (12) month period, you agree to institute an ethical
+screen that prevents your access to communications, information and
+participation in all services related to the Business of the Company.
+
+ 
+
+
+
+ B-1 
+
+ 
+
+ 
+
+As set out in the Massachusetts Noncompetition Agreement Act, you and the
+Company agree that the opportunity for post-employment benefits and compensation
+set forth in the Executive Employment Agreement dated April 23, 2020 (the
+“Employment Agreement”) constitute mutually-agreed upon consideration for this
+Noncompetition Covenant, and is fair and reasonable consideration for this
+Noncompetition Covenant, independent of continued employment. Such consideration
+is specifically designated and you acknowledge the receipt and sufficiency of
+the consideration.
+
+ 
+
+i.“Company” shall mean any entity controlled by, controlling, or under common
+control with DraftKings Inc., a Nevada corporation, including affiliates and
+subsidiaries. Control means the direct or indirect possession of the power to
+direct or cause the direction of the management and policies of an entity,
+whether through ownership, by contract or otherwise.
+
+ 
+
+ii.“Restricted Area” shall mean the entire United States since the Business of
+the Company encompasses the entire United States, of which you acknowledge and
+agree. Additionally, the Restricted Area shall include any territory or country
+outside the United States in which the Company operates the Business of the
+Company.
+
+ 
+
+iii.“Competing Business” shall mean any person, firm, association, corporation
+or any other legal entity that is engaged in a business that is competitive with
+any aspect of the Business of the Company, including but not limited to:
+FanDuel, Paddy Power Betfair, William Hill, bet365, PointsBet, Penn National,
+Barstool Sports, SugarHouse, 888, MGM, TheScore, BetStars, Unibet, Caesars,
+Golden Nugget, Bet America, Borgata, Harrahs, Oceans, and Resorts, Tropicana,
+Virgin, and Pala.
+
+ 
+
+ 
+
+iv.“Business of the Company” shall mean the research, design, development,
+marketing, sales, operations, maintenance and commercial exploitation pertaining
+to the operation of, and providing products and services for: (1) fantasy sports
+contests (“FSC”); (2) Regulated Gaming (defined below); (3) all other products
+and services that exist, are in development, or are under consideration by the
+Company during your relationship with the Company (“Other Products and
+Services”); and (4) all products and services incidentally related to, or which
+are an extension, development or expansion of, FSC, Regulated Gaming and/or
+Other Products and Services (“Incidental Products and Services”).
+
+ 
+
+v.“Regulated Gaming” shall mean the operation of games of chance or skill or
+pari-mutuel or fixed odds games (including, but not limited to, lotteries,
+pari-mutuel betting, bingo, race tracks, jai alai, legalized bookmaking,
+off-track betting, casino games, racino, keno, and sports betting or any play
+for fun (non-wagering) versions of the foregoing) and any type of ancillary
+service or product related to or connected with the foregoing.
+
+ 
+
+
+
+ B-2 
+
+ 
+
+ 
+
+vi.
+
+“Confidential Information” shall mean all information or a compilation of
+information, in any form (tangible or intangible or otherwise), that is not
+generally known to competitors or the public, which Company considers to be
+confidential and/or proprietary, including but not limited to: research and
+development; techniques; methodologies; strategies; product information,
+designs, prototypes and technical specifications; algorithms, source codes,
+object codes, trade secrets or technical data; training materials methods;
+internal policies and procedures; marketing plans and strategies; pricing and
+cost policies; customer, supplier, vendor and partner lists and accounts;
+customer and supplier preferences; contract terms and rates; financial data,
+information, reports, and forecasts; inventions, improvements and other
+intellectual property; product plans or proposed product plans; know-how;
+designs, processes or formulas; software and website applications; computer
+passwords; market or sales information, plans or strategies; business plans,
+prospects and opportunities (including, but not limited to, possible
+acquisitions or dispositions of businesses or facilities); information
+concerning existing or potential customers, partners or vendors. Confidential
+Information shall also information mean of or related to Company’s current or
+potential customers, vendors or partners that is considered to be confidential
+or proprietary to the applicable customer, vendor or partner.
+
+ 
+
+Confidential Information does not include: information in the public domain
+(other than as a result of disclosure by you); approved in writing for
+unrestricted release by Company; or produced or disclosed pursuant to a valid
+court order, provided you have given Company written notice of such request such
+that Company has an actual, reasonable opportunity to defend, limit or protect
+such production or disclosure.
+
+ 
+
+(b)You and the Company agree that the Noncompetition Covenant shall not be
+enforceable against you if the Company terminates your employment without cause
+or you are subject to a layoff as set forth in the Massachusetts Noncompetition
+Agreement Act. In the event of a termination without cause or a layoff as set
+forth in the Massachusetts Noncompetition Agreement Act, all other agreements
+with the Company shall remain in full force and effect to the extent expressly
+intended, or logically would be expected, to survive termination of your
+employment.
+
+ 
+
+(c)You agree to communicate the contents of all post-relationship obligations in
+this Noncompetition Covenant to any Competing Business that you intend to be
+employed by, associated with, or represent. You understand and agree that the
+Company may, in its discretion, also share any post-relationship obligation in
+this Noncompetition Covenant with any future (or potential) employer or
+association that is a Competing Business that seeks to be associated with you or
+employ you for your services.
+
+ 
+
+(d)You agree that the enforcement of the Noncompetition Covenant is necessary,
+among other things, to ensure the preservation, protection and continuity of the
+Company’s Confidential Information, trade secrets and goodwill of the Company.
+You agree that, due to the proprietary nature of the Business of the Company and
+relationships with others, the post-employment restrictions set forth above are
+reasonable as to duration and scope. You further acknowledge that the Company’s
+legitimate business interest cannot be adequately protected through an
+alternative restrictive covenant, including but not limited to a
+non-solicitation agreement or a non-disclosure or confidentiality agreement.
+
+ 
+
+
+
+ B-3 
+
+ 
+
+ 
+
+(e)You agree that any action that violates this Noncompetition Covenant would
+cause the Company irreparable harm for which monetary damages are inadequate.
+Accordingly, in the event of a breach, or threatened breach, of this
+Noncompetition Covenant, the Company shall be entitled to an injunction
+restraining such breach or threatened breach, or requiring specific performance,
+in addition to any and all rights and remedies at law and equity. The Company
+shall not be obligated to present additional evidence of irreparable harm or the
+insufficiency of monetary damages and, to the extent permitted by law or under
+applicable court rule, does not need to post a bond or other surety. Nothing
+herein shall be construed as prohibiting the Company from pursuing any other
+remedy available to the Company for such breach or threatened breach.
+
+ 
+
+(f)You and the Company hereby mutually agree to the exclusive jurisdiction of
+the Superior Court (inclusive of the Business Litigation Session) of the
+Commonwealth of Massachusetts or the United States District Court for the
+District of Massachusetts for any dispute arising hereunder. Accordingly, with
+respect to any such court action, you (a) submit to the personal jurisdiction of
+such courts; (b) consent to service of process by regular mail to your last
+known address; and (c) waive any other requirement (whether imposed by statute,
+rule of court, or otherwise) with respect to personal jurisdiction or service of
+process. If either party hereto commences a legal action or other proceeding
+against the other party hereto concerning a dispute arising from or relating to
+this Noncompetition Covenant outside of Massachusetts, such commencing party
+shall reimburse such other party for its or his reasonable attorneys’ fees,
+costs and expenses if such other party prevails in staying, transferring,
+dismissing or otherwise defending such action or proceeding based on the
+location of the action or proceeding, regardless of whether such fees, costs and
+expenses are incurred in the forum where such commencing party commenced the
+action or in a Massachusetts forum. This Noncompetition Covenant shall be
+governed by the internal substantive laws of Massachusetts, without regard to
+the doctrine of conflicts of law.
+
+ 
+
+(g)The failure of you or Company to insist upon strict performance of this
+Noncompetition Covenant irrespective of the length of time for which such
+failure continues, shall not be a waiver of such party’s rights herein. No term
+or provision of this Noncompetition Covenant may be waived unless such waiver is
+in writing.
+
+ 
+
+(h)If a court determines that one or more of the provisions contained in this
+Noncompetition Covenant shall be invalid or unenforceable, such court shall
+construe, reform or otherwise revise such provision(s) so as to render it/them
+enforceable to the maximum extent allowed by law, without invalidating the
+remaining provisions of this Noncompetition Covenant.
+
+ 
+
+
+
+ B-4 
+
+ 
+
+ 
+
+(i)Except as described in Section (b) of this Noncompetition Covenant, your
+obligations under this Noncompetition Covenant shall survive the termination of
+your relationship with the Company regardless of the manner of such termination.
+
+ 
+
+(j)The rights granted to the Company under the Noncompetition Covenant shall
+inure to the benefit of, and be enforceable by, the successors or assigns of
+Company.
+
+ 
+
+(k)You acknowledge that the Company provided you with a copy of this
+Noncompetition Covenant at least ten (10) business days before it is to be
+effective. Provided it is executed by both parties, this Noncompetition Covenant
+shall become effective on the later of (i) the date it is fully executed, or
+(ii) ten (10) business days after you received a copy of it.
+
+ 
+
+Before agreeing to this Noncompetition Covenant, you have the right to consult
+with counsel, and the Company advises you to do so.
+
+ 
+
+
+
+Notwithstanding the foregoing, you shall remain bound by all covenants, duties
+and obligations relating to confidentiality, ownership of intellectual property,
+non-solicitation, non-competition and all other post-employment restrictive
+covenants, duties and obligations with respect to which you agreed to be bound
+in connection with your employment with the Company, including without
+limitation such covenants, obligations and duties set forth in the
+Noncompetition, Nonsolicitation, Nondisclosure & Assignment of Inventions
+Agreement dated March 13, 2013; the Stock Option Grant Notice And Post
+Employment Noncompetition Covenant (2017 Equity Incentive Plan), dated June 4,
+2019; the Stock Option Grant Notice And Post Employment Noncompetition Covenant
+(2017 Equity Incentive Plan), dated June 4, 2019; and the Stock Option Grant
+Notice And Post Employment Noncompetition Covenant (2017 Equity Incentive Plan),
+dated June 4, 2019 (collectively, the “Restrictive Covenants”). The
+post-employment covenants, duties and obligations set forth in this Agreement
+are intended to supplement – not replace – the Restrictive Covenants.
+
+ 
+
+(l)The parties agree that you are employed “at will” and nothing in this
+Noncompetition Covenant is intended to guarantee employment for any period of
+time. The parties enter this Noncompetition Covenant with the understanding that
+your position, title, duties and responsibilities could change in a material way
+in the future and, in light of that understanding, the parties intend that this
+Noncompetition Covenant shall follow you throughout the entire course of your
+employment with the Company, and such subsequent material change shall not
+affect the enforceability or validity of this Noncompetition Covenant.
+
+ 
+
+DraftKings Inc.   Employee                   /s/ R. Stanton Dodge   /s/ Paul
+Liberman By: R. Stanton Dodge   Name: Paul Liberman Title: Chief Legal Officer  
+ 
+
+  
+
+
+
+ B-5 
+
+ 
+
+ 
+
+EXHIBIT C
+
+ 
+
+RELEASE AND WAIVER OF CLAIMS
+
+ 
+
+
+
+In consideration for the end of employment / termination benefits set forth in
+the Executive Employment Agreement, to which this form is attached (the
+“Employment Agreement”), including without limitation the end of employment /
+termination benefits set forth in Section 6 thereof, among other things, Paul
+Liberman (the “Executive” or “I”) and DraftKings, Inc. (the “Company”) hereby
+enter into the following release and waiver of claims (the “Release”). For the
+avoidance of doubt, nothing in this Release is intended or shall be construed to
+waive, release or limit in any manner the end of employment / termination
+benefits described in the Employment Agreement.
+
+ 
+
+The Executive hereby generally and completely release the Company, its
+affiliates, and its and their current and former directors, officers, employees,
+shareholders, partners, agents, attorneys, predecessors, successors, parent and
+subsidiary entities, insurers, affiliates, family and assigns (collectively, the
+“Released Parties”) of and from any and all claims, liabilities and obligations,
+both known and unknown, that arise out of or are in any way related to events,
+acts, conduct, or omissions occurring prior to or on the date that Executive
+signs this Release (collectively, the “Released Claims”). The Released Claims
+include, but are not limited to: (i) all claims arising out of or in any way
+related to the Executive’s employment with the Company, or the termination of
+that employment; (ii) all claims related to the Executive’s compensation or
+benefits from the Company, including salary, bonuses, retention bonuses,
+commissions, vacation pay, expense reimbursements, severance pay, fringe
+benefits, stock, stock options, or any other ownership interests or equity-based
+awards in the Company; (iii) all claims for breach of contract, wrongful
+termination, and breach of the implied covenant of good faith and fair dealing;
+(iv) all tort claims, including claims for fraud, defamation, emotional
+distress, and discharge in violation of public policy; and (v) all federal,
+state, and local statutory claims, including claims for discrimination,
+harassment, retaliation, attorneys’ fees, or other claims arising under the
+federal Civil Rights Act of 1964 (as amended), the federal Americans with
+Disabilities Act of 1990 (as amended), the federal Family and Medical Leave Act
+(as amended) (the “FMLA”), the federal Age Discrimination in Employment Act of
+1967 (as amended) (the “ADEA”), the Employee Retirement Income Security Act of
+1974 (as amended), the National Labor Relations Act of 1935 (as amended),
+Chapter 151B of the Massachusetts General Laws, and any similar applicable state
+laws, including those of the Commonwealth of Massachusetts and any other
+federal, state or local civil or human rights law or any other local, state or
+federal law, regulation or ordinance, and any public policy, contract, tort, or
+common law. Released Claims specifically includes, without limitation, claims
+pursuant to the Massachusetts Wage Act and State Overtime Law, M.G.L. c. 149 §§
+148, 150 et seq. and M.G.L. c 151, §1A et seq, as amended. Notwithstanding the
+foregoing, the following are not included in the Released Claims (the “Excluded
+Claims”): (i) any rights or claims for indemnification that Executive may have
+pursuant to any written indemnification agreement with the Company, the charter,
+bylaws, or operating agreements of the Company, or under applicable law;
+(ii) any rights which are not waivable as a matter of law; (iii) any claims
+arising from the breach of this Release; or (iv) any claims related to any
+Accrued Benefits or other vested benefits or any severance benefits payable or
+due to the Executive on account of the end of the Executive’s employment or the
+Executive’s termination under the terms of the Executive Employment Agreement.
+For the avoidance of doubt, nothing in this Release shall prevent Executive from
+challenging the validity of the Release in a legal or administrative proceeding.
+Nothing in this Release shall prevent the Executive from filing, cooperating
+with, or participating in any proceeding or investigation before the Equal
+Employment Opportunity Commission, United States Department of Labor, the
+National Labor Relations Board, the Occupational Safety and Health
+Administration, the Securities and Exchange Commission or any other federal
+government agency, or similar state or local agency (“Government Agencies”), or
+exercising any rights pursuant to Section 7 of the National Labor Relations Act.
+The Executive further understands that this Release does not limit the
+Executive’s ability to voluntarily communicate with any Government Agencies or
+otherwise participate in any investigation or proceeding that may be conducted
+by any Government Agency, including providing documents or other information,
+without notice to the Company. While this Release does not limit the Executive’s
+right to receive an award for information provided to the Securities and
+Exchange Commission, the Executive understands and agrees that the Executive is
+otherwise waiving, to the fullest extent permitted by law, any and all rights
+the Executive may have to individual relief based upon any claims arising out of
+any proceeding or investigation before one or more of the Government Agencies.
+If any such claim is not subject to release, to the extent permitted by law, the
+Executive waives any right or ability to be a class or collective action
+representative or to otherwise participate in any putative or certified class,
+collective or multi-party action or proceeding based on such a claim in which
+any of the Released Parties is a party. Notwithstanding anything to the contrary
+set forth herein, this Release does not abrogate the Executive’s existing rights
+under any Company benefit plan, the Executive Employment Agreement or any plan
+or agreement related to equity ownership in the Company.
+
+ 
+
+
+
+ C-1 
+
+ 
+
+ 
+
+I acknowledge that I am knowingly and voluntarily waiving and releasing any
+rights I may have under the ADEA (“ADEA Waiver”). I also acknowledge that (i)
+the consideration given for the ADEA Waiver is in addition to anything of value
+to which I was already entitled; and (ii) that, subject only to Company
+providing the end of employment / termination benefits described in the first
+paragraph of this Release, I have been paid for all time worked, has received
+all the leave, leaves of absence and leave benefits and protections for which I
+am eligible, and have not suffered any on-the-job injury for which I have not
+already filed a claim. I affirm that all of the decisions of the Released
+Parties regarding my pay and benefits through the date of my execution of this
+Release were not discriminatory based on age, disability, race, color, sex,
+religion, national origin or any other classification protected by law. I affirm
+that I have not filed or caused to be filed, and am not presently a party to, a
+claim against any of the Released Parties. I further affirm that I have no known
+workplace injuries or occupational diseases. I acknowledge and affirm that I
+have not been retaliated against for reporting any allegation of corporate fraud
+or other wrongdoing by any of the Released Parties, or for exercising any rights
+protected by law, including any rights protected by the Fair Labor Standards
+Act, the Family Medical Leave Act or any related statute or local leave or
+disability accommodation laws, or any applicable state workers’ compensation
+law. I have been advised by this writing, as required by the ADEA, that: (a) my
+waiver and release do not apply to any claims that may arise after I sign this
+Release; (b) I should consult with an attorney prior to executing this release;
+(c) I have twenty-one (21) days within which to consider this release (although
+I may choose to voluntarily execute this release earlier); (d) I have seven (7)
+days following the execution of this release to revoke this Release (in a
+written revocation sent to the Chief Executive Officer of the Company); and
+(e) this Release will not be effective until the eighth day after I sign this
+Release, provided that I have not earlier revoked this Release (the “Effective
+Date”). I will not be entitled to receive any of the benefits specified by this
+Release unless and until it becomes effective.
+
+ 
+
+
+
+ C-2 
+
+ 
+
+ 
+
+In granting the release herein, which includes claims that may be unknown to me
+at present, I acknowledge that I expressly waive and relinquish any and all
+rights and benefits under any applicable law or statute providing, in substance,
+that a general release does not extend to claims which a party does not know or
+suspect to exist in his or her favor at the time of executing the release, which
+if known by him or her would have materially affected the terms of such release.
+
+ 
+
+The Executive agrees that the Executive will not make any negative or
+disparaging statements or comments, either as fact or as opinion, about the
+Released Parties or their vendors, products or services, business, technologies,
+market position or performance. The Company (including its subsidiaries and
+affiliates) will not make, and agrees to use commercially reasonable efforts to
+cause the executive officers and board of directors of the Company to refrain
+from making, any negative or disparaging statements or comments, either as fact
+or as opinion, about the Executive (or authorizing any statements or comments to
+be reported as being attributed to the Company). Nothing in this paragraph shall
+prohibit the Executive or the Company from providing truthful information in
+response to a subpoena or other legal process. In addition, nothing in the
+Release shall apply to any legally protected whistleblower rights (including
+under Rule 21F under the Securities Exchange Act of 1934).
+
+ 
+
+Noncompetition Covenant. For a period of twelve (12) months following the last
+day of my employment, I agree to not, anywhere within the Restricted Area acting
+individually, or as an owner, shareholder, partner, employee, contractor, agent
+or otherwise (other than on behalf of Company) provide services to a Competing
+Business that relate to any aspect of the Business of the Company (the
+“Noncompetition Covenant”). The foregoing shall not be construed to preclude me
+from (i) owning up to one percent (1%) of the outstanding stock of a publicly
+held corporation that constitutes or is affiliated with a Competing Business, or
+(ii) becoming a shareholder, partner, contractor, agent, member, employee or
+otherwise of a private equity, venture capital or other investment firm, and
+providing services in connection therewith. The foregoing shall, however, be
+construed to specifically prevent me from (x) acting individually, or as an
+owner, shareholder, partner, employee, contractor, agent or otherwise (other
+than on behalf of Company) anywhere within the Restricted Area, during the
+period of your relationship with the Company and for a period of twelve (12)
+months following termination of your relationship with Company (for any reason
+other than referenced below in section (b)), and (y) providing services that
+relate to any aspect of the Business of the Company for any private equity,
+venture capital or other investment firm that at any time during such twelve
+(12) month period, has investments in any Competing Business; provided that I
+may work for a division, entity or subgroup of any companies that engage in a
+Competing Business (a “Separate BU”) so long as such Separate BU does not engage
+in any Competing Business and I do not provide any investment advice or
+consulting related to any Competing Business. To the extent that I act
+individually, or as an owner, shareholder, partner, employee, contractor, agent
+or otherwise and provide services unrelated to the Business of the Company for
+any Separate BU or private equity, venture capital or other investment firm at
+any time during such twelve (12) month period, I agree to institute an ethical
+screen that prevents my access to communications, information and participation
+in all services related to the Business of the Company. The following
+definitions apply to this Noncompetition Covenant:
+
+ 
+
+
+
+ C-3 
+
+ 
+
+ 
+
+i.“Company” shall mean any entity controlled by, controlling, or under common
+control with DraftKings Inc., including affiliates and subsidiaries. Control
+means the direct or indirect possession of the power to direct or cause the
+direction of the management and policies of an entity, whether through
+ownership, by contract or otherwise.
+
+ 
+
+ii.“Restricted Area” shall mean the entire United States since the Business of
+the Company encompasses the entire United States, of which you acknowledge and
+agree.
+
+ 
+
+iii.“Competing Business” shall mean any person, firm, association, corporation
+or any other legal entity that is engaged in a business that is competitive with
+any aspect of the Business of the Company, including but not limited to:
+FanDuel, Paddy Power Betfair, William Hill bet365, PointsBet, Penn National,
+Barstool Sports, SugarHouse, 888, MGM, TheScore, BetStars, Unibet, Caesars,
+Golden Nugget, Bet America, Borgata, Harrahs, Oceans, and Resorts, Tropicana,
+Virgin, and Pala.
+
+ 
+
+iv.“Business of the Company” shall mean the research, design, development,
+marketing, sales, operations, maintenance and commercial exploitation pertaining
+to the operation of, and providing products and services for: (1) fantasy sports
+contests (“FSC”); (2) Regulated Gaming (defined below); (3) all other products
+and services that exist, are in development, or are under consideration by the
+Company during your relationship with the Company (“Other Products and
+Services”); and (4) all products and services incidentally related to, or which
+are an extension, development or expansion of, FSC, Regulated Gaming and/or
+Other Products and Services (“Incidental Products and Services”).
+
+ 
+
+v.“Regulated Gaming” shall mean the operation of games of chance or skill or
+pari-mutuel or fixed odds games (including, but not limited to, lotteries,
+pari-mutuel betting, bingo, race tracks, jai alai, legalized bookmaking,
+off-track betting, casino games, racino, keno, and sports betting or any play
+for fun (non-wagering) versions of the foregoing) and any type of ancillary
+service or product related to or connected with the foregoing.
+
+ 
+
+I agree to communicate the contents of all post-relationship obligations to any
+Competing Business that I intend to be employed by, associated with, or
+represent. I understand and agree that the Company may, in its discretion, also
+share any post-relationship obligation with any future (or potential) employer
+or association that is a Competing Business that seeks to be associated with you
+or employ you for your services.
+
+ 
+
+I agree that the enforcement of the Noncompetition Covenant is necessary, among
+other things, to ensure the preservation, protection and continuity of the
+Company’s confidential information, trade secrets and goodwill of the Company. I
+agree that, due to the proprietary nature of the Business of the Company and
+relationships with others, the post-employment restrictions set forth above are
+reasonable as to duration and scope. I acknowledge that the Company’s legitimate
+business interest cannot be adequately protected through an alternative
+restrictive covenant, including but not limited to a non-solicitation agreement
+or a non-disclosure or confidentiality agreement.
+
+ 
+
+
+
+ C-4 
+
+ 
+
+ 
+
+I agree that any action that violates this Noncompetition Covenant would cause
+the Company irreparable harm for which monetary damages are inadequate.
+Accordingly, in the event of a breach, or threatened breach, the Company shall
+be entitled to an injunction restraining such breach or threatened breach, or
+requiring specific performance, in addition to any and all rights and remedies
+at law and equity. The Company shall not be obligated to present additional
+evidence of irreparable harm or the insufficiency of monetary damages and, to
+the extent permitted by law or under applicable court rule, does not need to
+post a bond or other surety. Nothing herein shall be construed as prohibiting
+the Company from pursuing any other remedy available to the Company for such
+breach or threatened breach.
+
+ 
+
+The parties hereby mutually agree to the exclusive jurisdiction of the Superior
+Court (inclusive of the Business Litigation Session) of the Commonwealth of
+Massachusetts or the United States District Court for the District of
+Massachusetts for any dispute arising hereunder. Accordingly, with respect to
+any such court action, I (a) submit to the personal jurisdiction of such courts;
+(b) consent to service of process by regular mail to my last known address; and
+(c) waive any other requirement (whether imposed by statute, rule of court, or
+otherwise) with respect to personal jurisdiction or service of process. If
+either party hereto commences a legal action or other proceeding against the
+other party hereto concerning a dispute arising from or relating to this
+Noncompetition Covenant outside of Massachusetts, such commencing party will
+reimburse such other party for its or my reasonable attorneys’ fees, costs and
+expenses if such other party prevails in staying, transferring, dismissing or
+otherwise defending such action or proceeding based on the location of the
+action or proceeding, regardless of whether such fees, costs and expenses are
+incurred in the forum where such commencing party commenced the action or in a
+Massachusetts forum. This Noncompetition Covenant shall be governed by the
+internal substantive laws of Massachusetts, without regard to the doctrine of
+conflicts of law.
+
+ 
+
+The failure of myself or the Company to insist upon strict performance of this
+Noncompetition Covenant irrespective of the length of time for which such
+failure continues, shall not be a waiver of such party’s rights herein. No term
+or provision of this Noncompetition Covenant may be waived unless such waiver is
+in writing.
+
+ 
+
+If a court determines that one or more of the provisions contained in the
+Noncompetition Covenant shall be invalid or unenforceable, such court shall
+construe, reform or otherwise revise such provision(s) so as to render it/them
+enforceable to the maximum extent allowed by law, without invalidating the
+remaining provisions of this Noncompetition Covenant.
+
+ 
+
+The rights granted to the Company under the Noncompetition Covenant shall inure
+to the benefit of, and be enforceable by, the successors or assigns of Company.
+The Noncompetition Covenant is entered into in connection with my cessation of
+employment.
+
+ 
+
+
+
+ C-5 
+
+ 
+
+ 
+
+This Release constitutes the complete, final and exclusive embodiment of the
+entire agreement between the Company and me with regard to the subject matter
+hereof. Notwithstanding the above, the Noncompetition Covenant is intended to
+supplement, but not replace, any other post-employment obligations between me
+and the Company [to be listed at the time of separation], as such other
+post-employment obligations remain in full force and effect. By signing below, I
+am not relying on any promise or representation by the Company that is not
+expressly stated herein. This Release may only be modified by a writing signed
+by both me and a duly authorized officer of the Company.
+
+ 
+
+The Company advises me to consult with legal counsel before entering into this
+Release.
+
+ 
+
+ 
+
+THE EXECUTIVE:
+
+ 
+
+
+
+Date:               Name:
+
+Paul Liberman
+
+                             
+
+ 
+
+ 
+
+THE COMPANY:
+
+ 
+
+Date:                         By:                   Its:  
+
+ 
+
+
+
+ C-6 
+
+ 
+
+ 
+
+EXHIBIT D
+
+ 
+
+INDEMNIFICATION AGREEMENT
+
+ 
+
+
+
+This Indemnification Agreement (the “Agreement”) is made and entered into as of
+April 23, 2020 between DraftKings Inc., a Nevada corporation (the “Company”),
+and Paul Liberman (“Indemnitee”).
+
+ 
+
+WITNESSETH THAT:
+
+ 
+
+WHEREAS, highly competent persons have become more reluctant to serve
+corporations as directors, officers or in other capacities unless they are
+provided with adequate protection through insurance or adequate indemnification
+against inordinate risks of claims and actions against them arising out of their
+service to and activities on behalf of the corporation;
+
+ 
+
+WHEREAS, the Board of Directors of the Company (the “Board”) has determined
+that, in order to attract and retain qualified individuals, the Company will
+attempt to maintain on an ongoing basis, at its sole expense, liability
+insurance to protect persons serving the Company and its subsidiaries from
+certain liabilities. Although the furnishing of such insurance has been a
+customary and widespread practice among United States-based corporations and
+other business enterprises, the Company believes that, given current market
+conditions and trends, such insurance may be available to it in the future only
+at higher premiums and with more exclusions. At the same time, directors,
+officers, and other persons in service to corporations or business enterprises
+are being increasingly subjected to expensive and time-consuming litigation
+relating to, among other things, matters that traditionally would have been
+brought only against the Company or business enterprise itself. Chapter 78 of
+the Nevada Revised Statutes (the “NRS”) and the Amended and Restated Articles of
+Incorporation of the Company (the “Articles”) authorize indemnification of the
+directors, officers, employees, fiduciaries and agents of the Company. The
+Amended and Restated Bylaws of the Company (the “Bylaws”) provide that the
+Company will indemnify the directors and officers of the Company. The NRS
+expressly provides that the indemnification provisions set forth therein are not
+exclusive, and thereby contemplate that contracts may be entered into between
+the Company and persons acting on behalf of the Company with respect to
+indemnification;
+
+ 
+
+WHEREAS, the uncertainties relating to such insurance and to indemnification
+have increased the difficulty of attracting and retaining such persons;
+
+ 
+
+WHEREAS, the Board has determined that the increased difficulty in attracting
+and retaining such persons is detrimental to the best interests of the Company’s
+stockholders and that the Company should act to assure such persons that there
+will be increased certainty of such protection in the future;
+
+ 
+
+WHEREAS, it is reasonable, prudent and necessary for the Company contractually
+to obligate itself to indemnify, and to advance expenses on behalf of, such
+persons to the fullest extent permitted by applicable law so that they will
+serve or continue to serve the Company free from undue concern that they will
+not be so indemnified;
+
+ 
+
+WHEREAS, this Agreement is a supplement to and in furtherance of any
+indemnification provisions in the Articles and/or the Bylaws of the Company and
+any resolutions adopted pursuant thereto, and shall not be deemed a substitute
+therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
+
+ 
+
+
+
+ 
+
+D-1
+
+ 
+
+ 
+
+ 
+
+WHEREAS, Indemnitee does not regard the protection available under the NRS, the
+Bylaws and insurance as adequate in the present circumstances, and may not be
+willing to serve as an officer or a director without adequate protection, and
+the Company desires Indemnitee to serve in such capacity. Indemnitee is willing
+to serve, continue to serve and to take on additional service for or on behalf
+of the Company on the condition that he or she be so indemnified.
+
+ 
+
+NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as an
+officer and/or a director from and after the date of this Agreement, and for
+other good and valuable consideration, the receipt and sufficiency of which is
+hereby acknowledged, the parties hereto agree as follows:
+
+ 
+
+1.       Indemnity of Indemnitee. The Company hereby agrees to hold harmless and
+indemnify Indemnitee to the fullest extent permitted by law, as such may be
+amended from time to time. In furtherance of the foregoing indemnification, and
+without limiting the generality thereof.
+
+ 
+
+(a) Proceedings Other Than Proceedings by or in the Right of the Company.
+Indemnitee shall be entitled to the rights of indemnification provided in this
+Section l(a) if, by reason of his or her Corporate Status (as hereinafter
+defined), Indemnitee was or is a party, or is threatened to be made a party, to
+any Proceeding (as hereinafter defined) other than a Proceeding by or in the
+right of the Company. Pursuant to this Section 1(a), the Company shall indemnify
+Indemnitee against all Expenses (as hereinafter defined), judgments, fines and
+amounts paid in settlement actually and reasonably incurred by him or her, or on
+his or her behalf, in connection with such Proceeding or any claim, issue or
+matter therein, if Indemnitee either (i) is not liable pursuant to NRS 78.138 or
+(ii) acted in good faith and in a manner Indemnitee reasonably believed to be in
+or not opposed to the best interests of the Company, and with respect to any
+criminal Proceeding, had no reasonable cause to believe Indemnitee’s conduct was
+unlawful.
+
+ 
+
+(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled
+to the rights of indemnification provided in this Section 1(b) if, by reason of
+his or her Corporate Status, Indemnitee is, or is threatened to be made, a party
+to or participant in any Proceeding brought by or in the right of the Company to
+procure a judgment in its favor. Pursuant to this Section 1(b), the Company
+shall indemnify Indemnitee against all Expenses and amounts paid in settlement
+actually and reasonably incurred by Indemnitee, or on Indemnitee’s behalf, in
+connection with such Proceeding or any claim, issue or matters therein, if
+Indemnitee either (i) is not liable pursuant to NRS 78.138 or (ii) acted in good
+faith and in a manner Indemnitee reasonably believed to be in or not opposed to
+the best interests of the Company; provided, however, if applicable law so
+provides, no indemnification against such Expenses or other amounts shall be
+made in respect of any claim, issue or matter as to which Indemnitee shall have
+been adjudged by a court of competent jurisdiction, after exhaustion of all
+appeals therefrom, to be liable to the Company or for amounts paid in settlement
+to the Company, unless and only to the extent that the court in which the
+Proceeding was brought or other court of competent jurisdiction shall determine
+that in view of all the circumstances in the case, Indemnitee is fairly and
+reasonably entitled to indemnity for such expenses as the court deems proper.
+
+ 
+
+(c) Termination of Proceeding. The termination of any Proceeding by judgment,
+order, settlement, conviction or upon a plea of nolo contendere or its
+equivalent, shall not, of itself, adversely affect the right of Indemnitee to
+indemnification or create an inference or presumption either that Indemnitee is
+liable pursuant to NRS 78.138, that Indemnitee did not act in good faith and in
+a manner which he or she reasonably believed to be in or not opposed to the best
+interests of the corporation, or, with respect to any criminal action or
+proceeding, that Indemnitee had reasonable cause to believe that the conduct was
+unlawful. The Company acknowledges that such a resolution, short of final
+judgment, may be successful on the merits if it permits a party to avoid
+expense, delay, distraction, disruption and uncertainty. In the event that any
+Proceeding to which Indemnitee is a party is resolved in any manner other than
+by adverse judgment against Indemnitee (including, without limitation,
+settlement of such Proceeding with or without payment of money or other
+consideration) it shall be presumed that Indemnitee has been successful on the
+merits or otherwise in such Proceeding. Anyone seeking to overcome this
+presumption shall have the burden of proof and the burden of persuasion by clear
+and convincing evidence.
+
+ 
+
+
+
+ D-2 
+
+ 
+
+ 
+
+(d) Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
+Notwithstanding any other provision of this Agreement, to the extent that
+Indemnitee is, by reason of his or her Corporate Status, a party to and is
+successful, on the merits or otherwise, in any Proceeding, the Company shall
+indemnify Indemnitee to the maximum extent permitted by law, as such may be
+amended from time to time, against all Expenses actually and reasonably incurred
+by him or her on his or her behalf in connection with the defense of the
+Proceeding. If Indemnitee is not wholly successful in such Proceeding but is
+successful, on the merits or otherwise, as to one or more but less than all
+claims, issues or matters in such Proceeding, the Company shall indemnify
+Indemnitee against all Expenses actually and reasonably incurred by him or her,
+or on his or her behalf, in connection with each successfully resolved claim,
+issue or matter. For purposes of this Section and without limitation, the
+termination of any claim, issue or matter in such a Proceeding by dismissal,
+with or without prejudice, shall be deemed to be a successful result as to such
+claim, issue or matter.
+
+ 
+
+2.       Additional Indemnity. In addition to, and without regard to any
+limitations on, the indemnification provided for in Section 1 of this Agreement,
+the Company shall and hereby does indemnify and hold harmless Indemnitee, to the
+fullest extent permitted by law, as may be amended from time to time, against
+all Expenses, judgments, fines and amounts paid in settlement actually and
+reasonably incurred by him or her, or on his or her behalf, if, by reason of his
+or her Corporate Status, he or she was or is a party, or is threatened to be
+made a party, to any Proceeding (including a Proceeding by or in the right of
+the Company), including, without limitation, all liability arising out of the
+simple or gross negligence, recklessness, or active or passive wrongdoing of
+Indemnitee. The only limitation that shall exist upon the Company’s obligations
+pursuant to this Agreement shall be that the Company shall not be obligated to
+make any payment to Indemnitee that is finally determined (under the procedures,
+and subject to the presumptions, set forth in Section 6 and Section 7 hereof) to
+be unlawful.
+
+ 
+
+3.       Contribution.
+
+ 
+
+(a) Whether or not the indemnification provided in Section 1 and Section 2
+hereof is available, in respect of any Proceeding in which the Company is
+jointly liable with Indemnitee (or would be if joined in such Proceeding), the
+Company shall pay the entire amount of any judgment or settlement of such
+Proceeding without requiring Indemnitee to contribute to such payment and the
+Company hereby waives and relinquishes any right of contribution it may have
+against Indemnitee. The Company shall not enter into any settlement of any
+Proceeding in which the Company is jointly liable with Indemnitee (or would be
+if joined in such Proceeding) unless such settlement provides for a full and
+final release of all claims asserted against Indemnitee.
+
+ 
+
+(b) Without diminishing or impairing the obligations of the Company set forth in
+the preceding subparagraph, if, for any reason, Indemnitee shall elect or be
+required to pay all or any portion of any judgment or settlement in any
+Proceeding in which the Company is jointly liable with Indemnitee (or would be
+if joined in such Proceeding), the Company shall contribute to the amount of
+Expenses, judgments, fines and amounts paid in settlement actually and
+reasonably incurred and paid or payable by Indemnitee in proportion to the
+relative benefits received by the Company and all officers, directors or
+employees of the Company, other than Indemnitee, who are jointly liable with
+Indemnitee (or would be if joined in such Proceeding), on the one hand, and
+Indemnitee, on the other hand, from the transaction from which such Proceeding
+arose; provided, however, that the proportion determined on the basis of
+relative benefit may, to the extent necessary to conform to law, be further
+adjusted by reference to the relative fault of the Company and all officers,
+directors or employees of the Company other than Indemnitee who are jointly
+liable with Indemnitee (or would be if joined in such Proceeding), on the one
+hand, and Indemnitee, on the other hand, in connection with the events that
+resulted in such expenses, judgments, fines or settlement amounts, as well as
+any other equitable considerations which applicable law may require to be
+considered. The relative fault of the Company and all officers, directors or
+employees of the Company, other than Indemnitee, who are jointly liable with
+Indemnitee (or would be if joined in such Proceeding), on the one hand, and
+Indemnitee, on the other hand, shall be determined by reference to, among other
+things, the degree to which their actions were motivated by intent to gain
+personal profit or advantage, the degree to which their liability is primary or
+secondary and the degree to which their conduct is active or passive.
+
+ 
+
+
+
+ D-3 
+
+ 
+
+ 
+
+(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless
+from any claims of contribution which may be brought by officers, directors, or
+employees of the Company, other than Indemnitee, who may be jointly liable with
+Indemnitee.
+
+ 
+
+(d) To the fullest extent permissible under applicable law, if the
+indemnification provided for in this Agreement is unavailable to Indemnitee for
+any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall
+contribute to the amount incurred by Indemnitee, whether for judgments, fines,
+amounts paid or to be paid in settlement and/or for Expenses, in connection with
+any claim relating to an indemnifiable event under this Agreement, in such
+proportion as is deemed fair and reasonable in light of all of the circumstances
+of such Proceeding in order to reflect (i) the relative benefits received by the
+Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
+cause to such Proceeding and/or (ii) the relative fault of the Company (and its
+directors, officers, employees and agents) and Indemnitee in connection with
+such event(s) and/or transaction(s).
+
+ 
+
+(e) The Company hereby acknowledges that Indemnitee may have rights to
+indemnification for payment of the judgment or settlement amount provided by
+another entity (“Other Indemnitor(s)”). The Company agrees with Indemnitee that
+the Company is the indemnitor of first resort of Indemnitee with respect to
+matters for which indemnification is provided under this Agreement and that the
+Company will be obligated to make all payments due to or for the benefit of
+Indemnitee under this agreement without regard to any rights that Indemnitee may
+have against the Other Indemnitor(s). The Company hereby waives any equitable
+rights to contribution or indemnification from the Other Indemnitor in respect
+of any amounts paid to Indemnitee hereunder until such time as the Indemnitee
+has been fully and finally indemnified. The Company further agrees that no
+payment of Expenses or losses by the Other Indemnitor(s) to or for the benefit
+of Indemnitee shall affect the obligations of the Company hereunder.
+
+ 
+
+4.       Indemnification for Expenses of a Witness. Notwithstanding any other
+provision of this Agreement, to the extent that Indemnitee, by reason of his or
+her Corporate Status, is a witness, or is made (or asked) to respond to
+discovery requests or otherwise asked to participate in any Proceeding to which
+Indemnitee is not a party, the Company shall indemnify Indemnitee against all
+Expenses actually and reasonably incurred by him or her, or on his or her
+behalf, in connection therewith.
+
+ 
+
+5.       Advancement of Expenses. Notwithstanding any other provision of this
+Agreement, the Company shall advance all Expenses incurred by or on behalf of
+Indemnitee in connection with defending any Proceeding within thirty (30) days
+after the receipt by the Company of a statement or statements from Indemnitee
+requesting such advance or advances from time to time, whether prior to or after
+final disposition of such Proceeding. Such statement or statements shall
+reasonably evidence the Expenses incurred by Indemnitee and Indemnitee shall
+also submit a written undertaking to repay any Expenses advanced if it shall
+ultimately be determined by a court of competent jurisdiction that Indemnitee is
+not entitled to be indemnified by the Company against such Expenses. Any
+advances and undertakings to repay pursuant to this Section 5 shall be unsecured
+and interest free. In furtherance of the foregoing, Indemnitee hereby undertakes
+to repay such amounts advanced if, and to the extent that, it shall ultimately
+be determined by a court of competent jurisdiction that Indemnitee is not
+entitled to be indemnified by the Company pursuant to the terms of this
+Agreement.
+
+ 
+
+
+
+ D-4 
+
+ 
+
+ 
+
+6.       Procedures and Presumptions for Determination of Entitlement to
+Indemnification. It is the intent of this Agreement to secure for Indemnitee
+rights of indemnity that are as favorable as may be permitted under the NRS and
+public policy of the State of Nevada. Accordingly, the parties agree that the
+following procedures and presumptions shall apply in the event of any question
+as to whether Indemnitee is entitled to indemnification under this Agreement:
+
+ 
+
+(a) To obtain indemnification under this Agreement, Indemnitee shall submit to
+the Company a written request, including therein or therewith such documentation
+and information as is reasonably available to Indemnitee and is reasonably
+necessary to determine whether and to what extent Indemnitee is entitled to
+indemnification. The Secretary of the Company shall, promptly upon receipt of
+such a request for indemnification, advise the Board in writing that Indemnitee
+has requested indemnification. Notwithstanding the foregoing, any failure of
+Indemnitee to provide such a request to the Company, or to provide such a
+request in a timely fashion, shall not relieve the Company of any liability that
+it may have to Indemnitee unless, and to the extent that, the Company is
+actually and materially prejudiced as a result of such failure.
+
+ 
+
+(b) Upon written request by Indemnitee for indemnification pursuant to the first
+sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s
+entitlement thereto shall be made in the specific case by one of the following
+three methods, which shall be at the election of the Board (i) by a majority
+vote of a quorum consisting of Disinterested Directors (as defined below), (ii)
+if a majority vote of a quorum consisting of Disinterested Directors so orders,
+or if a quorum of Disinterested Directors cannot be obtained, by Independent
+Counsel (as defined below) in a written opinion to the Board, a copy of which
+shall be delivered to Indemnitee, or (iii) by the stockholders of the Company.
+
+ 
+
+(c) Notwithstanding anything to the contrary set forth in this Agreement, if a
+request for indemnification is made after a Change in Control, at the election
+of Indemnitee made in writing to the Company, and if the Board by a majority
+vote of a quorum consisting of Disinterested Directors orders the determination
+of Indemnitee’s entitlement to indemnification to be made by an Independent
+Counsel, or if a quorum of Disinterested Directors cannot be obtained, any
+determination required to be made pursuant to Section 6(b) above as to whether
+Indemnitee is entitled to indemnification shall be made by Independent Counsel
+selected as provided in this Section 6(c). The Independent Counsel shall be
+selected by Indemnitee, unless Indemnitee shall request that such selection be
+made by the Board. The party making the selection shall give written notice to
+the other party advising it of the identity of the Independent Counsel so
+selected. The party receiving such notice may, within seven (7) days after such
+written notice of selection shall have been given, deliver to the other party a
+written objection to such selection. Such objection may be asserted only on the
+ground that the Independent Counsel so selected does not meet the requirements
+of “Independent Counsel” as defined in Section 13 hereof, and the objection
+shall set forth with particularity the factual basis of such assertion. Absent a
+proper and timely objection, the person so selected shall act as Independent
+Counsel. If a written objection is made, the Independent Counsel so selected may
+not serve as Independent Counsel unless and until a court has determined that
+such objection is without merit. If, within twenty (20) days after submission by
+Indemnitee of a written request for indemnification pursuant to Section 6(a)
+hereof, no Independent Counsel shall have been selected (or, if selected, such
+selection shall have been objected to) in accordance with this paragraph, then
+either the Company or Indemnitee may petition the courts of the State of Nevada
+or other court of competent jurisdiction for resolution of any objection which
+shall have been made by the Company or Indemnitee to the other’s selection of
+Independent Counsel and/or for the appointment as Independent Counsel of a
+person selected by the court or by such other person as the court shall
+designate, and the person with respect to whom an objection is favorably
+resolved or the person so appointed shall act as Independent Counsel under
+Section 6(c) hereof. The Company shall pay any and all reasonable fees and
+expenses of Independent Counsel incurred by such Independent Counsel in
+connection with acting pursuant to Section 6(b) hereof. The Company shall pay
+any and all reasonable and necessary fees and expenses incident to the
+procedures of this Section 6(c), regardless of the manner in which such
+Independent Counsel was selected or appointed.
+
+ 
+
+
+
+ D-5 
+
+ 
+
+ 
+
+(d) If the determination of entitlement to indemnification is to be made by
+Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel
+shall be selected as provided in this Section 6(d). The Independent Counsel
+shall be selected by the Board. Indemnitee may, within ten (10) days after such
+written notice of selection shall have been given, deliver to the Company a
+written objection to such selection; provided, however, that such objection may
+be asserted only on the ground that the Independent Counsel so selected does not
+meet the requirements of “Independent Counsel” as defined in Section 13 of this
+Agreement, and the objection shall set forth with particularity the factual
+basis of such assertion. Absent a proper and timely objection, the person so
+selected shall act as Independent Counsel. If a written objection is made and
+substantiated, the Independent Counsel selected may not serve as Independent
+Counsel unless and until such objection is withdrawn or a court has determined
+that such objection is without merit. If, within twenty (20) days after
+submission by Indemnitee of a written request for indemnification pursuant to
+Section 6(a) hereof, no Independent Counsel shall have been selected (or, if
+selected, such selection shall have been objected to) in accordance with this
+paragraph, then either the Company or Indemnitee may petition the appropriate
+courts of the State of Nevada or other court of competent jurisdiction for
+resolution of any objection which shall have been made by Indemnitee to the
+Company’s selection of Independent Counsel and/or for the appointment as
+Independent Counsel of a person selected by the court or by such other person as
+the court shall designate, and the person with respect to whom an objection is
+favorably resolved or the person so appointed shall act as Independent Counsel
+under Section 6(b) hereof. The Company shall pay any and all reasonable fees and
+expenses of Independent Counsel in connection with acting pursuant to Section
+6(b) hereof, and the Company shall pay any and all reasonable fees and expenses
+incident to the procedures of this Section 6(d), regardless of the manner in
+which such Independent Counsel was selected or appointed.
+
+ 
+
+(e) In making a determination with respect to entitlement to indemnification
+hereunder, the person or persons or entity making such determination shall
+presume that Indemnitee is entitled to indemnification under this Agreement.
+Anyone seeking to overcome this presumption shall have the burden of proof and
+the burden of persuasion by clear and convincing evidence. Neither the failure
+of the Company (including by its directors or independent legal counsel) to have
+made a determination prior to the commencement of any action pursuant to this
+Agreement that indemnification is proper in the circumstances because Indemnitee
+has met the applicable standard of conduct, nor an actual determination by the
+Company (including by its directors or independent legal counsel) that
+Indemnitee has not met such applicable standard of conduct, shall be a defense
+to the action or create a presumption that Indemnitee has not met the applicable
+standard of conduct.
+
+ 
+
+(f) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s
+action is based on the records or books of account of the Enterprise (as
+hereinafter defined), including financial statements, or on information supplied
+to Indemnitee by the officers of the Enterprise in the course of their duties,
+or on the advice of legal counsel for the Enterprise or on information or
+records given or reports made to the Enterprise by an independent certified
+public accountant or by an appraiser or other expert selected with reasonable
+care by the Enterprise. In addition, the knowledge and/or actions, or failure to
+act, of any director, officer, agent or employee of the Enterprise shall not be
+imputed to Indemnitee for purposes of determining the right to indemnification
+under this Agreement. Whether or not the foregoing provisions of this Section
+6(f) are satisfied, it shall in any event be presumed that Indemnitee has at all
+times acted in good faith and in a manner he or she reasonably believed to be in
+or not opposed to the best interests of the Company. Anyone seeking to overcome
+this presumption shall have the burden of proof and the burden of persuasion by
+clear and convincing evidence. The Company will promptly advise Indemnitee in
+writing with respect to any determination that Indemnitee is or is not entitled
+to indemnification, including a description of any reason or basis for which
+indemnification has been denied.
+
+ 
+
+
+
+ D-6 
+
+ 
+
+ 
+
+(g) Notwithstanding anything to the contrary set forth in this Agreement, if the
+person, persons or entity empowered or selected under Section 6 to determine
+whether Indemnitee is entitled to indemnification shall not have been appointed
+or shall not have made a determination within sixty (60) days after receipt by
+the Company of the request therefor, the requisite determination of entitlement
+to indemnification shall be deemed to have been made and Indemnitee shall be
+entitled to such indemnification, unless the Company establishes by written
+opinion of Independent Counsel that (i) a misstatement by Indemnitee of a
+material fact, or an omission of a material fact necessary to make Indemnitee’s
+statement not materially misleading, in connection with the request for
+indemnification, or (ii) a prohibition of such indemnification under applicable
+law; provided, however, that such sixty (60) day period may be extended for a
+reasonable time, not to exceed an additional thirty (30) days, if the person,
+persons or entity making such determination with respect to entitlement to
+indemnification in good faith requires such additional time to obtain or
+evaluate documentation and/or information relating thereto; and provided,
+further, that the foregoing provisions of this Section 6(g) shall not apply if
+the determination of entitlement to indemnification is to be made by the
+stockholders pursuant to Section 6(b) of this Agreement and if (A) within
+fifteen (15) days after receipt by the Company of the request for such
+determination, the Disinterested Directors resolve as required by Section
+6(b)(iii) of this Agreement to submit such determination to the stockholders for
+their consideration at an annual meeting thereof to be held within seventy five
+(75) days after such receipt and such determination is made thereat, or (B) a
+special meeting of stockholders is called within fifteen (15) days after such
+receipt for the purpose of making such determination, such meeting is held for
+such purpose within sixty (60) days after having been so called and such
+determination is made thereat.
+
+ 
+
+(h) Indemnitee shall cooperate with the person, persons or entity making such
+determination with respect to Indemnitee’s entitlement to indemnification,
+including providing to such person, persons or entity upon reasonable advance
+request any documentation or information which is not privileged or otherwise
+protected from disclosure and which is reasonably available to Indemnitee and
+reasonably necessary to such determination. Any Independent Counsel or member of
+the Board or stockholder of the Company shall act reasonably and in good faith
+in making a determination regarding Indemnitee’s entitlement to indemnification
+under this Agreement. Any costs or expenses (including attorneys’ fees and
+disbursements) incurred by Indemnitee in so cooperating with the person, persons
+or entity making such determination shall be borne by the Company (irrespective
+of the determination as to Indemnitee’s entitlement to indemnification) and the
+Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
+
+ 
+
+7.       Remedies of Indemnitee.
+
+ 
+
+(a) In the event that (i) a determination is made pursuant to Section 6 of this
+Agreement that Indemnitee is not entitled to indemnification under this
+Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5
+of this Agreement, (iii) no determination of entitlement to indemnification is
+made pursuant to Section 6(b) or Section 6(c) of this Agreement within sixty
+(60) days after receipt by the Company of the request for indemnification, or
+such longer period, not to exceed an additional thirty (30) days, to which the
+period may be extended pursuant to Section 6(g), (iv) payment of indemnification
+is not made pursuant to this Agreement within ten (10) days after receipt by the
+Company of a written request therefor or (v) payment of indemnification is not
+made within ten (10) days after a determination has been made that Indemnitee is
+entitled to indemnification or such determination is deemed to have been made
+pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an
+adjudication of Indemnitee’s entitlement to such indemnification or advancement
+of expenses either, at Indemnitee’s sole option, in (1) an appropriate court of
+the State of Nevada, or any other court of competent jurisdiction or (2) an
+arbitration to be conducted by a single arbitrator, selected by mutual agreement
+of the Company and Indemnitee, pursuant to the rules of the American Arbitration
+Association. The Company shall not oppose Indemnitee’s right to seek any such
+adjudication.
+
+ 
+
+
+
+ D-7 
+
+ 
+
+ 
+
+(b) In the event that a determination shall have been made pursuant to Section
+6(b) or Section 6(c) of this Agreement that Indemnitee is not entitled to
+indemnification, (i) any judicial proceeding or arbitration commenced pursuant
+to this Section 7 shall be conducted in all respects de novo on the merits, and
+Indemnitee shall not be prejudiced by reason of any adverse determination under
+Section 6(b) or Section 6(c); and (ii) in any such judicial proceeding or
+arbitration, the Company shall have the burden of proving that Indemnitee is not
+entitled to indemnification under this Agreement.
+
+ 
+
+(c) If a determination shall have been made pursuant to Section 6(b) or Section
+6(c), or shall have been deemed to have been made pursuant to Section 6(g), of
+this Agreement that Indemnitee is entitled to indemnification, the Company shall
+be obligated to pay the amounts constituting such indemnification within five
+(5) days after such determination has been made or has been deemed to have been
+made and shall be conclusively bound by such determination in any judicial
+proceeding commenced pursuant to this Section 7, unless the Company establishes
+by written opinion of Independent Counsel that (i) a misstatement by Indemnitee
+of a material fact, or an omission of a material fact necessary to make
+Indemnitee’s misstatement not materially misleading in connection with the
+request for indemnification or (ii) a prohibition of such indemnification under
+applicable law.
+
+ 
+
+(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial
+adjudication of, or an award in arbitration to enforce, his or her rights under,
+or to recover damages for breach of, this Agreement, or to recover under any
+directors’ and officers’ liability insurance policies maintained by the Company,
+the Company shall pay to him or her, or on his or her behalf, in advance, and
+shall indemnify him or her against, any and all expenses (of the types described
+in the definition of Expenses in Section 13 of this Agreement) actually and
+reasonably incurred by him or her in such judicial adjudication or arbitration,
+regardless of whether Indemnitee ultimately is determined to be entitled to such
+indemnification, advancement of expenses or insurance recovery.
+
+ 
+
+(e) The Company shall be precluded from asserting in any judicial proceeding or
+arbitration commenced pursuant to this Section 7 that the procedures and
+presumptions of this Agreement are not valid, binding and enforceable and shall
+stipulate in any such court or before any such arbitrator that the Company is
+bound by all the provisions of this Agreement. The Company shall indemnify
+Indemnitee against any and all Expenses and, if requested by Indemnitee, shall
+(within ten (10) days after receipt by the Company of a written request
+therefore) advance, to the extent not prohibited by law, such expenses to
+Indemnitee, which are incurred by Indemnitee in connection with any action
+brought by Indemnitee for indemnification or advance of Expenses from the
+Company under this Agreement or under any directors’ and officers’ liability
+insurance policies maintained by the Company, regardless of whether Indemnitee
+ultimately is determined to be entitled to such indemnification, advancement of
+Expenses or insurance recovery, as the case may be.
+
+ 
+
+8.       Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
+
+ 
+
+(a) The rights of indemnification and advancement of expenses as provided by
+this Agreement shall not be deemed exclusive of, and shall be in addition to,
+any other rights to which Indemnitee may at any time be entitled under
+applicable law, the Articles or the Bylaws of the Company, any agreement, a vote
+of stockholders, a resolution of directors of the Company, or otherwise, and
+nothing in this Agreement shall diminish or otherwise restrict Indemnitee’s
+rights to indemnification or advancement of expenses under any of the foregoing.
+No amendment, alteration or repeal of this Agreement or of any provision hereof
+shall limit or restrict any right of Indemnitee under this Agreement in respect
+of any action taken or omitted by such Indemnitee in his or her Corporate Status
+prior to such amendment, alteration or repeal. To the extent that a change in
+the NRS, whether by statute or judicial decision, permits greater
+indemnification than would be afforded currently under the Articles, the Bylaws
+and this Agreement, it is the intent of the parties hereto that Indemnitee shall
+enjoy by this Agreement the greater benefits so afforded by such change and
+Indemnitee shall be deemed to have such greater benefits hereunder. No right or
+remedy herein conferred is intended to be exclusive of any other right or
+remedy, and every other right and remedy shall be cumulative and in addition to
+every other right and remedy given hereunder or now or hereafter existing at law
+or in equity or otherwise. The assertion or employment of any right or remedy
+hereunder, or otherwise, shall not prevent the concurrent assertion or
+employment of any other right or remedy. The Company shall not adopt any
+amendments to its Articles or Bylaws, the effect of which would be to deny,
+diminish or encumber Indemnitee’s right to indemnification or advancement of
+expenses under this Agreement, any other agreement or otherwise, without the
+prior written consent of the Indemnitee.
+
+ 
+
+
+
+ D-8 
+
+ 
+
+ 
+
+(b) To the extent that the Company maintains an insurance policy or policies
+providing liability insurance for directors, officers, employees, or agents or
+fiduciaries of the Company or of any other corporation, partnership, joint
+venture, trust, employee benefit plan or other enterprise that such person
+serves at the request of the Company, Indemnitee shall be covered by such policy
+or policies in accordance with its or their terms to the maximum extent of the
+coverage available for any director, officer, employee, agent or fiduciary under
+such policy or policies. If, at the time of the receipt of a notice of a claim
+pursuant to the terms hereof, the Company has director and officer liability
+insurance in effect, the Company shall give prompt notice of the commencement of
+such Proceeding to the insurers in accordance with the procedures set forth in
+the respective policies. The Company shall thereafter take all necessary or
+desirable action to cause such insurers to pay, on behalf of Indemnitee, all
+amounts payable as a result of such Proceeding in accordance with the terms of
+such policies.
+
+ 
+
+(c) In the event of any payment under this Agreement, the Company shall be
+subrogated to the extent of such payment to all of the rights of recovery of
+Indemnitee, who shall execute all papers required and take all action necessary
+to secure such rights, including execution of such documents as are necessary to
+enable the Company to bring suit to enforce such rights (with all of
+Indemnitee’s reasonable expenses, including, without limitation, attorneys’ fees
+and charges, related thereto to be reimbursed by or, at the option of
+Indemnitee, advanced by the Company).
+
+ 
+
+(d) The Company shall not be liable under this Agreement to make any payment of
+amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee
+has otherwise actually received such payment under any insurance policy,
+contract, agreement or otherwise.
+
+ 
+
+(e) The Company’s obligation to indemnify or advance Expenses hereunder to
+Indemnitee who is or was serving at the request of the Company as a director,
+officer, employee or agent of any other corporation, partnership, joint venture,
+trust, employee benefit plan or other enterprise shall be reduced by any amount
+Indemnitee has actually received as indemnification or advancement of expenses
+from such other corporation, partnership, joint venture, trust, employee benefit
+plan or other enterprise.
+
+ 
+
+9.       Exception to Right of Indemnification. Notwithstanding any provision in
+this Agreement, the Company shall not be obligated under this Agreement to make
+any indemnity in connection with any claim made against Indemnitee:
+
+ 
+
+(a) for which payment has actually been made to or on behalf of Indemnitee under
+any insurance policy or other indemnity provision, except with respect to any
+excess beyond the amount paid under any insurance policy or other indemnity
+provision; or
+
+ 
+
+
+
+ D-9 
+
+ 
+
+ 
+
+(b) for an accounting of profits made from the purchase and sale (or sale and
+purchase) by Indemnitee of securities of the Company within the meaning of
+Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
+Act”), or similar provisions of state statutory law or common law; or
+
+ 
+
+(c) for any reimbursement of the Company by Indemnitee of any bonus or other
+incentive-based or equity-based compensation or of any profits realized by
+Indemnitee from the sale of securities of the Company, as required in each case
+under the Exchange Act (including any such reimbursements that arise from an
+accounting restatement of the Company pursuant to Section 304 of the
+Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the
+Company of profits arising from the purchase and sale by Indemnitee of
+securities in violation of Section 306 of the Sarbanes-Oxley Act); or
+
+ 
+
+(d) for any reimbursement of the Company by Indemnitee of any compensation
+pursuant to any compensation recoupment or clawback policy adopted by the Board
+or the compensation committee of the Board, including but not limited to any
+such policy adopted to comply with stock exchange listing requirements
+implementing Section 10D of the Exchange Act; or
+
+ 
+
+(e) in connection with any Proceeding (or any part of any Proceeding) initiated
+by Indemnitee, including any Proceeding (or any part of any Proceeding)
+initiated by Indemnitee against the Company (other than to enforce Indemnitee’s
+rights under this Agreement) or its directors, officers, employees or other
+indemnitees, unless (i) the Board of the Company authorized the Proceeding (or
+such part of the Proceeding) prior to its initiation, or (ii) the Company
+indemnifies Indemnitee, in its sole discretion, independently of this Agreement
+pursuant to the powers vested in the Company under applicable law.
+
+ 
+
+10.       Retroactive Effect; Duration of Agreement; Successors and Binding
+Agreement. All agreements and obligations of the Company contained herein shall
+be deemed to have become effective upon the date Indemnitee first had Corporate
+Status; shall continue during the period Indemnitee has Corporate Status; and
+shall continue thereafter so long as Indemnitee may be subject to any Proceeding
+(or any action commenced under Section 7 hereof) by reason of his or her
+Corporate Status, whether or not he or she is acting or serving in any such
+capacity at the time any liability or expense is incurred for which
+indemnification can be provided under this Agreement. This Agreement shall be
+binding upon and inure to the benefit of and be enforceable by the parties
+hereto and their respective successors (including any direct or indirect
+successor by purchase, merger, consolidation, reorganization or otherwise to all
+or substantially all of the business or assets of the Company), assigns,
+spouses, heirs, executors and personal and legal representatives. The Company
+shall require any such successor to all or substantially all of the business or
+assets of the Company, by agreement in form and substance satisfactory to
+Indemnitee and his or her counsel, expressly to assume and agree to perform this
+Agreement in the same manner and to the same extent the Company would be
+required to perform if no such succession had taken place. Except as otherwise
+set forth in this Section 10, this Agreement shall not be assignable or
+delegable by the Company.
+
+ 
+
+11.       Security. To the extent requested by Indemnitee and approved by the
+Board of the Company, the Company may at any time and from time to time provide
+security to Indemnitee for the Company’s obligations hereunder through an
+irrevocable bank line of credit, funded trust or other collateral. Any such
+security, once provided to Indemnitee, may not be revoked or released without
+the prior written consent of Indemnitee.
+
+ 
+
+
+
+ D-10 
+
+ 
+
+ 
+
+12.       Enforcement.
+
+ 
+
+(a) The Company expressly confirms and agrees that it has entered into this
+Agreement and assumes the obligations imposed on it hereby in order to induce
+Indemnitee to serve, or continue to serve, as an officer or a director of the
+Company, and the Company acknowledges that Indemnitee is relying upon this
+Agreement in serving or continuing to serve as an officer or a director of the
+Company.
+
+ 
+
+(b) This Agreement constitutes the entire agreement between the parties hereto
+with respect to the subject matter hereof and supersedes all prior agreements
+and understandings, oral, written and implied, between the parties hereto with
+respect to the subject matter hereof.
+
+ 
+
+13.       Definitions. For purposes of this Agreement:
+
+ 
+
+(a)       “Change in Control” means the occurrence of any one of the following
+events:
+
+(i) any sale, lease, exchange or other transfer (in one or a series of related
+transactions) of all or substantially all of the assets of the Company;
+
+ 
+
+(ii) any “Person” as such term is used in Section 13(d) and Section 14(d) of the
+Exchange Act becomes, directly or indirectly, the “beneficial owner” as defined
+in Rule 13d-3 under the Exchange Act of securities of the Company that represent
+more than 50% of the combined voting power of the Company’s then outstanding
+voting securities (the “Outstanding Company Voting Securities”); provided,
+however, that for purposes of this Section 13(a)(ii), the following acquisitions
+shall not constitute a Change in Control: (I) any acquisition directly from the
+Company, (II) any acquisition by the Company, (III) any acquisition by any
+employee benefit plan (or related trust) sponsored or maintained by the Company
+or any person or entity that directly or indirectly controls, is controlled by
+or is under common control with the Company and/or to the extent provided by the
+Board, any person or entity in which the Company has a significant interest,
+(IV) any acquisition by any corporation pursuant to a transaction that complies
+with Sections 13(a)(iv)(A) and 13(a)(iv)(B), (V) any acquisition involving
+beneficial ownership of less than 50% of the then-outstanding shares of the
+Company’s Class A common stock, par value $0.0001 per share (and any stock or
+other securities into which such ordinary shares may be converted or into which
+they may be exchanged) (the “Outstanding Company Common Shares”) or the
+Outstanding Company Voting Securities that is determined by the Board, based on
+review of public disclosure by the acquiring Person with respect to its passive
+investment intent, not to have a purpose or effect of changing or influencing
+the control of the Company; provided, however, that for purposes of this clause
+(V), any such acquisition in connection with (x) an actual or threatened
+election contest with respect to the election or removal of directors or other
+actual or threatened solicitation of proxies or consents or (y) any “Business
+Combination” (as defined below) shall be presumed to be for the purpose or with
+the effect of changing or influencing the control of the Company;
+
+ 
+
+(iii) during any period of not more than two (2) consecutive years, individuals
+who constitute the Board as of the beginning of the period (the “Incumbent
+Directors”) cease for any reason to constitute at least a majority of the Board,
+provided that any person becoming a director subsequent to the beginning of such
+period, whose election or nomination for election was approved by a vote of at
+least two-thirds of the Incumbent Directors then on the Board (either by a
+specific vote or by approval of the proxy statement of the Company in which such
+person is named as a nominee for director, without written objection to such
+nomination) will be an Incumbent Director; provided, however, that no individual
+initially elected or nominated as a director of the Company as a result of an
+actual or threatened election contest with respect to directors or as a result
+of any other actual or threatened solicitation of proxies by or on behalf of any
+person other than the Board will be deemed to be an Incumbent Director;
+
+ 
+
+
+
+ D-11 
+
+ 
+
+ 
+
+(iv) consummation of a merger, amalgamation or consolidation (a “Business
+Combination”) of the Company with any other corporation, unless, following such
+Business Combination, (A) all or substantially all of the individuals and
+entities that were the beneficial owners of the Outstanding Company Common
+Shares and the Outstanding Company Voting Securities immediately prior to such
+Business Combination beneficially own, directly or indirectly, more than 50% of
+the then-outstanding shares of common stock (or, for a non-corporate entity,
+equivalent securities) and the combined voting power of the then-outstanding
+voting securities entitled to vote generally in the election of directors (or,
+for a non-corporate entity, equivalent governing body), as the case may be, of
+the entity resulting from such Business Combination (including, without
+limitation, an entity that, as a result of such transaction, owns the Company or
+all or substantially all of the Company’s assets either directly or through one
+or more subsidiaries) in substantially the same proportions as their ownership
+immediately prior to such Business Combination of the Outstanding Company Common
+Shares and the Outstanding Company Voting Securities, as the case may be, and
+(B) at least a majority of the members of the board of directors (or, for a
+non-corporate entity, equivalent governing body) of the entity resulting from
+such Business Combination were Incumbent Directors at the time of the execution
+of the initial agreement or of the action of the Board providing for such
+Business Combination;
+
+ 
+
+(v) the stockholders of the Company approve a plan of complete liquidation of
+the Company.
+
+ 
+
+(b) “Corporate Status” means the fact that a person is or was a director,
+officer, employee, agent or fiduciary of the Company or is or was serving at the
+request of the Company as a director, officer, employee or agent of another
+corporation, partnership, joint venture, trust or other enterprise.
+
+ 
+
+(c) “Disinterested Director” means a director of the Company who is not and was
+not a party to the Proceeding in respect of which indemnification is sought by
+Indemnitee.
+
+ 
+
+(d) “Enterprise” shall mean the Company and any other corporation, partnership,
+joint venture, trust, employee benefit plan or other enterprise that Indemnitee
+is or was serving at the express written request of the Company as a director,
+officer, trustee, partner, manager, managing member, employee, agent or
+fiduciary.
+
+ 
+
+(e) “Expenses” shall include all reasonable attorneys’ fees, retainers, court
+costs, transcript costs, fees of experts and other professionals, witness fees,
+travel expenses, duplicating costs, printing and binding costs, telephone
+charges, postage, delivery service fees, ERISA excise taxes and penalties, and
+all other disbursements or expenses of the types customarily incurred or
+actually incurred in connection with prosecuting, defending, preparing to
+prosecute or defend, investigating, participating, or being or preparing to be a
+witness in a Proceeding, or responding to, or objecting to, a request to provide
+discovery in a Proceeding. Expenses also shall include Expenses incurred in
+connection with any appeal resulting from any Proceeding, including, without
+limitation, the premium, security for, and other costs relating to any cost
+bond, supersede as bond, or other appeal bond or its equivalent. Should any
+payments by the Company to or for the account of Indemnitee under this Agreement
+be determined to be subject to any federal, state or local income or excise tax,
+Expenses shall also include such amounts as are necessary to place Indemnitee in
+the same after-tax position (after giving effect to all applicable taxes)
+Indemnitee would have been in had no such tax been determined to apply to those
+payments. The parties agree that for the purposes of any advancement of Expenses
+for which Indemnitee has made written demand to the Company in accordance with
+this Agreement, all Expenses included in such demand that are certified by
+affidavit of Indemnitee’s counsel as being reasonable in the good faith judgment
+of such counsel shall be presumed conclusively to be reasonable. Expenses,
+however, shall not include amounts paid in settlement by Indemnitee or the
+amount of judgments or fines against Indemnitee.
+
+ 
+
+
+
+ D-12 
+
+ 
+
+ 
+
+(f) “Independent Counsel” means a law firm, or a member of a law firm, that is
+experienced in matters of corporation law and neither presently is, nor in the
+past five (5) years has been, retained to represent (i) the Company or
+Indemnitee in any matter material to either such party (other than with respect
+to matters concerning Indemnitee under this Agreement, or of other indemnitees
+under similar indemnification agreements), or (ii) any other party to the
+Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
+the foregoing, the term “Independent Counsel” shall not include any person who,
+under the applicable standards of professional conduct then prevailing, would
+have a conflict of interest in representing either the Company or Indemnitee in
+an action to determine Indemnitee’s rights under this Agreement. The Company
+agrees to pay the reasonable fees of the Independent Counsel referred to above
+and to fully indemnify such counsel against any and all Expenses, claims,
+liabilities and damages arising out of or relating to this Agreement or its
+engagement pursuant hereto.
+
+ 
+
+(g) “Proceeding” includes any threatened, pending or completed action, suit,
+claim, counterclaim, cross claim, arbitration, mediation, alternate dispute
+resolution mechanism, investigation, inquiry, administrative hearing or any
+other actual, threatened or completed proceeding, whether brought by or in the
+right of the Company or otherwise and whether civil, criminal, administrative,
+legislative or investigative (formal or informal); in each case whether or not
+Indemnitee’s Corporate Status existed at the time any liability or expense is
+incurred for which indemnification can be provided under this Agreement;
+including one pending on or before the date of this Agreement, but excluding one
+initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce
+his or her rights under this Agreement.
+
+ 
+
+14.       Severability. The invalidity or unenforceability of any provision
+hereof shall in no way affect the validity or enforceability of any other
+provision. Without limiting the generality of the foregoing, this Agreement is
+intended to confer upon Indemnitee indemnification rights to the fullest extent
+permitted by applicable laws. In the event any provision hereof conflicts with
+any applicable law, such provision shall be deemed modified, consistent with the
+aforementioned intent, to the extent necessary to resolve such conflict.
+
+ 
+
+15.       Modification and Waiver. No supplement, modification, termination or
+amendment of this Agreement shall be binding unless executed in writing by both
+of the parties hereto. No waiver of any of the provisions of this Agreement
+shall be deemed or shall constitute a waiver of any other provisions hereof
+(whether or not similar) nor shall such waiver constitute a continuing waiver.
+
+ 
+
+16.       Notice by Indemnitee. Indemnitee agrees promptly to notify the Company
+in writing upon being served with or otherwise receiving any summons, citation,
+subpoena, complaint, indictment, information or other document relating to any
+Proceeding or matter which may be subject to indemnification covered hereunder.
+The failure to so notify the Company shall not relieve the Company of any
+obligation which it may have to Indemnitee under this Agreement unless, and only
+to the extent that, the Company is actually and materially prejudiced as a
+result of such delay or failure.
+
+ 
+
+17.       Notices. All notices and other communications given or made pursuant
+to this Agreement shall be in writing and shall be deemed effectively given (a)
+upon personal delivery to the party to be notified, (b) when sent by confirmed
+facsimile, or (c) upon delivery when sent by a nationally recognized overnight
+courier, specifying next day delivery, with written verification of receipt. All
+communications shall be sent:
+
+ 
+
+To Indemnitee at the address set forth below Indemnitee’s signature hereto.
+
+ 
+
+
+
+ D-13 
+
+ 
+
+ 
+
+To the Company at:
+
+ 
+
+DraftKings Inc.
+
+222 Berkeley Street 5th Floor
+
+Boston, Massachusetts 02116
+
+Attention: Chief Legal Officer
+
+ 
+
+or to such other address as may have been furnished to Indemnitee by the Company
+or to the Company by Indemnitee, as the case may be.
+
+ 
+
+18.       Counterparts. This Agreement may be executed in two (2) or more
+counterparts, each of which shall be deemed an original, but all of which
+together shall constitute one and the same the same instrument. Counterparts may
+be delivered via facsimile, electronic mail (including pdf or any electronic
+signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
+www.docusign.com) or other transmission method and any counterpart so delivered
+shall be deemed to have been duly and validly delivered and be valid and
+effective for all purposes.
+
+ 
+
+19.       Headings. The headings of the paragraphs of this Agreement are
+inserted for convenience only and shall not be deemed to constitute part of this
+Agreement or to affect the construction thereof.
+
+ 
+
+20.       Successors and Assigns. The terms of this Agreement shall be binding
+upon the Company and its successors and assigns and shall inure to the benefit
+of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors,
+administrators and other legal representatives.
+
+ 
+
+21.       Governing Law and Consent to Jurisdiction. This Agreement and the
+legal relations among the parties shall be governed by, and construed and
+enforced in accordance with, the laws of the State of Nevada, without regard to
+its conflict of laws rules. The Company and Indemnitee hereby irrevocably and
+unconditionally (i) agree that any action or proceeding arising out of or in
+connection with this Agreement (other than an arbitration pursuant to Section 7
+hereof) shall be brought only in the Eighth Judicial District Court of Clark
+County (the “Nevada Court”), and not in any other state or federal court in the
+United States of America or any court in any other country, (ii) consent to
+submit to the exclusive jurisdiction of the Nevada Court for purposes of such
+action or proceeding, (iii) waive any objection to the laying of venue of any
+such action or proceeding in the Nevada Court, and (iv) waive, and agree not to
+plead or to make, any claim that any such action or proceeding brought in the
+Nevada Court has been brought in an improper or inconvenient forum.
+
+ 
+
+[Remainder of page intentionally left blank]
+
+ 
+
+
+
+ D-14 
+
+ 
+
+ 
+
+IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
+the day and year first above written.
+
+ 
+
+
+
+  COMPANY       DraftKings Inc.       By:  /s/ R. Stanton Dodge   Name: R.
+Stanton Dodge   Title: Chief Legal Officer              
+
+INDEMNITEE 
+
+      /s/ Paul Liberman   Name: Paul Liberman         Address: Address on file
+with the Company                  
+
+ 
+
+
+
+ D-15 
+
+ 
+
+