false
0000103145
0000103145
2024-08-02
2024-08-02
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES ANDEXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
PURSUANT TO SECTION 13OR 15(d) OF THE
SECURITIES EXCHANGEACT OF 1934
Date of Report (Date of earliest eventreported):
August 2, 2024
VEECO INSTRUMENTS INC.
(Exact name of registrant as specified inits charter)
Delaware 0-16244 11-2989601
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Terminal Drive
,
Plainview
,
New York
11803
(Address of principal executive offices)
(
516
)
677-0200
(Registrant's telephone number,including area code)
Not applicable
(Former name or former address, ifchanged since last report)
Check the appropriate box below if the Form 8-Kfiling is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (seeGeneral Instruction A.2. below):
..
Writtencommunications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
..
Solicitingmaterial pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
..
Pre-commencementcommunications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
..
Pre-commencementcommunications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Securitiesregistered pursuant to Section 12(b) of the Act:
Title of each class Trading Symbol(s) Name of each exchange on which registered
Common Stock, par value $0.01 per share VECO The
NASDAQ
Global Select Market
Indicate by check mark whether the registrant is an emerginggrowth company as
defined in Rule 405 of the Securities Act of 1933 ((s)230.405 of this chapter)
or Rule 12b-2of the Securities Exchange Act of 1934 ((s)240.12b-2 of this
chapter).
Emerging growth company
..
If an emerging growth company, indicate by check mark if theregistrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standardsprovided pursuant to Section 13(a) of
the Exchange Act.
..
Item 1.01 Entry into a Material DefinitiveAgreement
ThirdAmendment to Loan and Security Agreement
On August 2, 2024, the Company entered intoa Third Amendment (the "Third
Amendment") to the Loan and Security Agreement, dated as of December 16, 2021,
among theCompany, as borrower, HSBC Bank USA, National Association, as
administrative agent and collateral agent, and HSBC Bank USA, National
Association,Barclays Bank PLC, Santander Bank, N.A. and Citibank, N.A. as
Joint Lead Arrangers and Joint Bookrunners and the lenders from time totime
party thereto (as amended by that certain First Amendment to Loan and Security
Agreement, dated as of May 19, 2023, and as furtheramended by that certain
Second Amendment to Loan and Security Agreement, dated as of March 22, 2024,
the "Loan and SecurityAgreement"). The Third Amendment provides for, among
other things, (i) an increase to the senior secured revolving credit
facilityby an aggregate principal amount of $75,000,000 to an aggregate
principal amount of $225,000,000 and (ii) the joinder of CitizensBank, N.A. as
lender in the Loan and Security Agreement.
The description of the Third Amendment containedherein is qualified in its
entirety by reference to the text of the Third Amendment filed as Exhibit 10.1
to this Current Reporton Form 8-K, and which is incorporated herein by
reference.
Item 2.03 Creation of a Direct Financial Obligationor an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forthunder Item 1.01 of this Current Report on Form 8-K is
incorporated by reference in this Item 2.03.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
.
EXHIBIT INDEX
Exhibit Description
10.1 Third Amendment to Loan and Security Agreement, dated as of August 2, 2024, by
and among Veeco Instruments Inc., as borrower, the guarantors party thereto,
HSBC Bank USA, National Association, as administrative agent and collateral
agent, Citizens Bank, N.A., and the lenders from time to time party thereto.
104 Cover Page Interactive Data File
(formatted as inline XBRL).
SIGNATURES
Pursuant to the requirements of the SecuritiesExchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
August 2, 2024 VEECO INSTRUMENTS INC.
By: /s/ Kirk Mackey
Name: Kirk Mackey
Title: Vice President, General Counsel and Secretary
Exhibit 10.1
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
This THIRD AMENDMENT TO LOANAND SECURITY AGREEMENT, dated as of August 2, 2024
(this "
Amendment
"), is by and among VEECO INSTRUMENTS INC.,a Delaware corporation ("
Borrower
"), the Guarantors party hereto, HSBC BANK USA, NATIONAL ASSOCIATION, as
administrativeagent and collateral agent for the Lenders referred to below (in
such capacities, "
Agent
"), CITIZENS BANK, N.A. ( "
New Lender
"), and the other financial institutions from time to time party to the Loan
Agreement (as defined below)(collectively, the "
Existing Lenders
", and together with New Lender, the "
Lenders
") signatory hereto.
WHEREAS, Borrower, the Guarantors,the Existing Lenders and Agent have
previously entered into that certain Loan and Security Agreement, dated as of
December 16, 2021(as amended by that certain First Amendment to Loan and
Security Agreement, dated as of May 19, 2023, as further amended by
thatcertain Second Amendment to Loan and Security Agreement, dated as of March
22, 2024, and as further amended, restated, amended andrestated, supplemented
or otherwise modified from time to time prior to the date hereof, the "
Existing Loan Agreement
",and as amended by this Amendment and as the same may be further amended,
restated, amended and restated, supplemented or otherwise modifiedfrom time to
time, the "
Loan Agreement
"), pursuant to which the Existing Lenders have made certain loans and
financialaccommodations available to Borrower;
WHEREAS, the Borrower hasrequested (a) an increase to the Maximum Revolving
Advance Amount in an aggregate principal amount of $75,000,000 pursuant to
Section 2.4
of the Existing Loan Agreement (the "
Third Amendment Incremental Amount
"), on the terms and conditions set forthherein and (b) that the New Lender
join the Loan Agreement and the other Loan Documents as a Lender;
WHEREAS, the Loan Partieshave requested that Agent and the Lenders amend
certain terms and provisions of the Loan Agreement and Agent and the Lenders
are willingto amend such terms and provisions of the Loan Agreement on the
terms and conditions set forth herein in accordance with
Section 15.2
of the Existing Loan Agreement;
WHEREAS, pursuant to
Section 15.2
of the Existing Loan Agreement, the consent of Agent and the Lenders is
required for the effectiveness of the amendments to the ExistingLoan Agreement
set forth in this Amendment, and Agent and the Lenders have agreed to consent
to such amendments to the Existing LoanAgreement; and
WHEREAS, each of Borrowerand the other Loan Parties is entering into this
Amendment with the understanding and agreement that, except as specifically
providedherein, none of Agent's, Issuer's or any Lender's rights or remedies
as set forth in the Loan Agreement and theother Loan Documents are being
waived or modified by the terms of this Amendment.
NOW, THEREFORE, in considerationof the premises and agreements, provisions and
covenants herein contained, the parties hereto hereby agree as follows:
Section 1.//////////
DefinedTerms; References
. Unless otherwise specifically defined herein, each term used herein which is
defined in the Loan Agreement hasthe meaning assigned to such term in the Loan
Agreement. The rules of construction and other interpretive provisions
specified in
Sections 1.1
,
1.3
and
1.4
of the Loan Agreement shall apply to this Amendment, including terms defined
in the preambleand recitals hereto.
Section 2.//////////
Amendmentsto the Loan Agreement
. Subject to the satisfaction in full of the conditions precedent set forth in
Section 3
hereof,effective as of the Third Amendment Effective Date (as defined below):
(a)////////////theExisting Loan Agreement is hereby amended as set forth in
Annex A
attached hereto such that all of the newly inserted double underlinedtext
(indicated textually in the same manner as the following example:
double-underlinedtext
) and any formatting changes attached hereto shall be deemed to be inserted
and all of the stricken text (indicated textuallyin the same manner in the
following example:
stricken text
) shall be deemed to be deletedtherefrom; and
(b)////////////
Schedule1.1
to the Existing Loan Agreement is amended by replacing such Schedule with
Schedule 1.1
attached hereto as
Annex B
.
Section 3.//////////
Effectiveness
.This Amendment shall not be effective until each of the following conditions
precedent have been fulfilled to the satisfaction of (andin form and substance
reasonably satisfactory to) or waived by Agent and the Lenders (such date, the
"
Third Amendment EffectiveDate
"):
(a)////////////
Amendment
.This Amendment shall have been duly executed and delivered by the Loan
Parties, Agent, New Lender, and the other Lenders party hereto,and Agent shall
have received a fully executed copy hereof;
(b)////////////
Notes
.Agent shall have received for the account of each Lender requesting a Note in
writing at least one (1) Business Day prior to theThird Amendment Effective
Date, a Note duly executed and delivered by an Authorized Officer of Borrower;
(c)////////////
Feesand Expenses
. Agent shall have received all fees payable to Agent on or prior to the Third
Amendment Effective Date pursuant to theLoan Agreement and the Third Amendment
Effective Date Fee Letter and all other reasonable and documented
out-of-pocket fees and expensesincurred by Agent on or prior to the Third
Amendment Effective Date;
(d)////////////
ClosingCertificate
. Agent shall have received a closing certificate signed by an Authorized
Officer of Borrower dated as of the date hereof,stating that the condition
precedent set forth in
clause (d)
of
Section 2.4
of the Loan Agreement has been satisfied;
(e)////////////
Searches
.Agent shall also have received customary UCC, U.S. patent, trademark and
copyright, tax, ERISA, litigation, bankruptcy and judgment liensearches (or
the foreign equivalent thereof, if any) with respect to the Loan Parties in
such jurisdictions as Agent shall reasonablyrequire, and the results of such
searches shall be reasonably satisfactory to Agent;
(f)////////////
Proceedingsof the Loan Parties
. Agent shall have received a copy of the resolutions, in form and substance
reasonably satisfactory to Agent,of the Board of Directors (or equivalent
authority) of each Loan Party authorizing the execution, delivery and
performance of this Amendmentand the other Loan Documents, the Notes (for
Borrower only) and any related agreements by each Loan Party, certified by an
AuthorizedOfficer of such Loan Party as not having been amended, modified,
revoked or rescinded as of the date hereof;
(g)////////////
IncumbencyCertificates of Loan Parties
. Agent shall have received a certificate of an Authorized Officer of each
Loan Party, dated as of thedate hereof, as to the incumbency and signature of
the officers of such Loan Party executing this Amendment and any certificate
or otherdocuments to be delivered by it pursuant hereto, together with
evidence of the incumbency of such Authorized Officer;
2
(h)////////////
Certificates
.Agent shall have received a copy of the certificate of incorporation,
certificate of organization or equivalent document of each LoanParty, and all
amendments thereto, certified by the Secretary of State or other appropriate
official of its jurisdiction of organizationtogether with copies of the bylaws
or operating agreement or other constitutive documents, as applicable, of each
Loan Party certifiedby an Authorized Officer of such Loan Party as not having
been amended, modified, revoked or rescinded as of the date hereof;
(i)////////////
GoodStanding Certificates
. Agent shall have received good standing certificates or certificates of
existences (or equivalent thereof,if any) for each Loan Party dated as of a
recent date prior to the date hereof, issued by the Secretary of State or
other appropriateofficial of such Loan Party's jurisdiction of organization or
formation (to the extent applicable in such Loan Party's jurisdictionof
organization or formation);
(j)////////////
Reserved
;
(k)////////////
LegalOpinion
. Agent shall have received a customary, executed legal opinion of Morrison
Foerster LLP in form and substance reasonablysatisfactory to Agent which shall
cover such customary matters incidental to the transactions contemplated by
this Amendment and theother Loan Documents as Agent may reasonably require and
each Loan Party hereby authorizes and directs such counsel to deliver such
opinionsto Agent and Lenders; and
(l)////////////
SolvencyCertificate
. Agent shall have received a solvency certificate executed by the chief
financial officer of Borrower in a form reasonablysatisfactory to Agent.
Section 4.//////////
JoiningLender
. By its execution of this Amendment, New Lender hereby confirms and agrees
that, on and after the Third Amendment EffectiveDate, it shall be and become a
party to the Loan Agreement as a Lender and shall have all of the rights and
be obligated to perform allof the obligations of a Lender thereunder with the
Revolving Commitment applicable to it identified on
Annex B
attached hereto. NewLender further (i) represents and warrants that it is has
full power and authority, and has taken all action necessary, to executeand
deliver this Amendment and to consummate the transactions contemplated hereby
and to become a Lender under the Loan Agreement; (ii) confirmsthat it has
received copies of the Loan Agreement and such other Loan Documents,
documents, and information as it has deemed appropriateto make its own credit
analysis and decision to enter into this Amendment; (iii) agrees that it
shall, independently and withoutreliance upon Agent, any other agent, or any
other Lender and based on such documents and information as it shall deem
appropriate atthe time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents; (iv) appoints and authorizesAgent
to take such action as agent on its behalf and to exercise such powers under
the Loan Agreement and the other Loan Documents asare delegated to Agent by
the terms thereof, together with such powers as are incidental thereto; and
(v) agrees that it will observeand perform all obligations that are required
to be performed by it as a "Lender" under the Loan Documents. For
theavoidance of doubt, Borrower hereby consents to New Lender becoming a
Lender under the Loan Agreement.
Section 5.//////////
RatableCommitments
. Concurrently with the effectiveness of this Amendment, each Lender shall
assign to the other Lenders,and such other Lenders shall purchase from such
Lender, at the principal amount thereof, such interests in the Revolving
Advances andparticipation interests in Letters of Credit on such date as shall
be necessary in order for, after giving effect to all suchassignments and
purchases, such Revolving Advances and participation interests in Letters of
Credit to be held by all Lenders ratablyin accordance with their Revolving
Commitments after giving effect to the provisions of this Amendment.
3
Section 6.//////////
Effectof Amendment; Reaffirmation and Ratification of Obligations; Etc
. Except as expressly set forth herein or in the Loan Agreement,this Amendment
shall not by implication or otherwise limit, impair, constitute a waiver of or
otherwise affect the rights and remediesof the Lenders or Agent under the Loan
Agreement or under any Loan Document and shall not alter, modify, amend or in
any way affect anyof the terms, conditions, obligations, covenants or
agreements contained in the Loan Agreement or any other provision of the Loan
Agreementor any Loan Document, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Each Loan Partyacknowledge
s and agrees that (A) the Loan Agreement (as amended hereby) and each other
Loan Document to which it is a party is herebyconfirmed and ratified and shall
remain in full force and effect according to its respective terms and (B) the
Loan Agreement, andthe other Loan Documents do, and all of the Collateral
does, and in each case shall continue to, secure the payment of all
Obligationson the terms and conditions set forth in the Loan Agreement and the
other Loan Documents, and hereby ratifies the security interestsgranted by it
pursuant to the Loan Agreement and the other Loan Documents. On and as of the
Third Amendment Effective Date, each referencein the Loan Agreement to "this
Agreement", "hereof", "hereunder", "herein" and "hereby"and each other similar
reference, and each reference in any Loan Document to "the Loan Agreement",
"thereof", "thereunder", "therein" or "thereby" or any other similar reference
to the Loan Agreement shall referto the Loan Agreement as amended hereby.
Section 7.//////////
Effectof Third Amendment Incremental Increase
. Each party to this Amendment acknowledges and agrees that, after giving
effect to this Amendmentand the Lenders providing the Third Amendment
Incremental Amount, (i) the Maximum Revolving Advance Amount shall be
$225,000,000,(ii) the Incremental Revolving Commitment shall be reduced to $0
and (iii) the Revolving Commitment of the Lenders shall beas set forth on
Schedule 1.1 attached hereto as Annex B (which replaces Schedule 1.1 to the
Existing Loan Agreement in its entirety).
Section 8.//////////
Representationsand Warranties
. As of the Third Amendment Effective Date, each Loan Party hereby represents
and warrants to Agent and the Lendersthat:
(a)////////////suchLoan Party has full power, authority and legal right to
enter into this Amendment and to perform all its Obligations hereunder and
underthe Loan Agreement, and the execution, delivery and performance of this
Amendment (i) are within such Loan Party's corporateor limited liability
company power, as applicable, have been duly authorized, are not in
contravention of applicable law or the termsof such Loan Party's by-laws,
operating agreement, certificate of incorporation, certificate of formation,
as applicable, or otherapplicable documents relating to such Loan Party's
organization or formation or to the conduct of such Loan Party's businessor of
any agreement or undertaking to which such Loan Party is a party or by which
such Loan Party is bound, and (ii) will neitherconflict with nor result in any
breach in any of the provisions of or constitute a default under or result in
the creation of any Lienexcept Permitted Encumbrances upon any asset of such
Loan Party under the provisions of any agreement, charter document, by-law, or
otherinstrument to which such Loan Party or its property is a party or by
which it may be bound;
(b)////////////thisAmendment and the Loan Agreement constitute the legal,
valid and binding obligation of such Loan Party, enforceable in accordance
withtheir respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similarlaws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability;
(c)////////////aftergiving effect to this Amendment, the representations and
warranties of such Loan Party in the Loan Agreement and in each other Loan
Documentto which it is a party are true and correct in all material respects
(except that such materiality qualifier shall not be applicableto any
representations or warranties that already are qualified or modified as to
"materiality" or "Material AdverseEffect" in the text thereof, which
representations and warranties shall be true and correct in all respects
subject to such qualification)on and as of such date as if made on and as of
such date except to the extent such representations or warranties are limited
by theirterms to a specific date (in which case such representation or
warranty shall be true and correct on and as of such earlier date in
allmaterial respects (except that such materiality qualifier shall not be
applicable to any representations or warranties that already arequalified or
modified as to "materiality" or "Material Adverse Effect" in the text thereof,
which representationsand warranties shall be true and correct in all respects
subject to such qualification)); and
4
(d)////////////aftergiving effect to this Amendment, no Default or Event of
Default has occurred and is continuing on the date hereof or would result
fromthe transactions contemplated by this Amendment.
Section 9.//////////
GoverningLaw
. This Amendment shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflictsof law principals.
Section 10.////////
Counterparts;Telecopied Signatures
. This Amendment may be executed in counterparts (and by different parties
hereto in different counterparts),each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Amendment,and any separate letter agreements with respect to fees payable to
Agent, constitute the entire contract among the parties relating tothe subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subjectmatter hereof. Except as provided in
Section 3
of this Amendment, this Amendment shall become effective when it shall
havebeen executed by Agent and when Agent shall have received counterparts
hereof that, when taken together, bear the signatures of eachof the other
parties hereto. Delivery of an executed counterpart of a signature page of
this Amendment or any certificate deliveredhereunder, by fax transmission or
e-mail transmission (e.g. "pdf" or "tif") shall be effective as delivery ofa
manually executed counterpart of this Amendment. or such certificate. Without
limiting the foregoing, to the extent a manually executedcounterpart is not
specifically required to be delivered under the terms of this Amendment, upon
the request of any party, such fax transmissionor e-mail transmission shall be
promptly followed by such manually executed counterpart.
Section 11.////////
Miscellaneous
.This Amendment constitutes a Loan Document.
[SIGNATURE PAGES FOLLOW]
5
IN WITNESS WHEREOF, the partieshereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
above written.
VEECO INSTRUMENTS INC.
, as Borrower
By: /s/ John P. Kiernan
Name: John P. Kiernan
Title: Senior Vice President & Chief Financial Officer
VEECO PROCESS EQUIPMENT INC.
, as a Guarantor
By: /s/ John P. Kiernan
Name: John P. Kiernan
Title: Vice President & Treasurer
VEECO APAC LLC
, as a Guarantor
By: /s/ John P. Kiernan
Name: John P. Kiernan
Title: Senior Vice President & Chief Financial Officer
[Signature Page toThird Amendment to Loan and Security Agreement]
HSBC BANK USA, NATIONAL ASSOCIATION
,
as Agent
By: /s/ Beth Gallardo
Name: Beth Gallardo
Title: Vice President
[Signature Page toThird Amendment to Loan and Security Agreement]
HSBC BANK USA, NATIONAL ASSOCIATION
,
as a Lender
By: /s/ Will Conlan
Name: Will Conlan
Title: Director
[Signature Page toThird Amendment to Loan and Security Agreement]
CITIZENS BANK, N.A.
,
as New Lender
By: /s/ Dan Zuk
Name: Dan Zuk
Title: Vice President
Address for Notices:
Attn: Jose Won
Senior Vice President
Relationship Manager
Middle Market Corporate Banking
48 South Service Road, Suite 220
Melville, New York 11747
[Signature Page toThird Amendment to Loan and Security Agreement]
Barclays Bank PLC,
as a Lender
By: /s/ Sean Duggan
Name: Sean Duggan
Title: Director
[SignaturePage to Third Amendment to Loan and Security Agreement]
SANTANDER BANK, N.A. as Lender
By: /s/ Matthew Cunningham
Name: Matthew Cunningham
Title: Vice President
[Signature Page to Third Amendment toLoan and Security Agreement]
CITIBANK, N.A.,
as a Lender
By: /s/ Robert Robin
Name: Robert Robin
Title: Vice President
[Signature Page to Third Amendment toLoan and Security Agreement]
FIRST-CITIZENS BANK & TRUST COMPANY,
as a Lender
By: /s/ Frank Groccia
Name: Frank Groccia
Title: Managing Director
[Signature Page to Third Amendment toLoan and Security Agreement]
ANNEX A
[See attached.]
Conformed through second amendment Third Amendment dated 8/2/2024LOAN AND SECURITY
AGREEMENTdated as ofDecember 16, 2021amongVEECO INSTRUMENTS INC.,as Borrower,the Guarantors
that are from time to time parties hereto,the Lenders that are from time to time parties
hereto,HSBC BANK USA, NATIONAL ASSOCIATION,as Administrative Agent and Collateral
AgentandHSBC BANK USA, NATIONAL ASSOCIATION, BARCLAYS BANK PLC, SANTANDERBANK,
N.A. and, CITIBANK, N.A. AND CITIZENS BANK, N.A.as Joint Lead Arrangers and Joint
BookrunnersCertain information has been excluded from this agreement (indicated by "[***]")
because such information (i) is not material and (ii) constitutes personal information
DB1/ 141780467.7149079106.6TABLE OF CONTENTSPage-i-I. DEFINITIONS.
11.1. Accounting Terms. 11.2. General Terms. 11.3. UCC Terms. 421.4.
Certain Matters of Construction. 421.5. Divisions. 43II. ADVANCES,
PAYMENTS. 432.1. Revolving Advances and Swingline Loans. 432.2.
Procedure for Borrowing. 452.3. Disbursement of Advance Proceeds.
462.4. Incremental Loans. 462.5. Maximum Advances and Letters of
Credit. 482.6. Repayment of Advances. 492.7. Repayment of Excess
Revolving Advances. 492.8. Statement of Account. 492.9. Letters
of Credit. 502.10. Issuance of Letters of Credit. 502.11. Requirements
for Issuance of Letters of Credit. 512.12. Additional Payments.
522.13. Manner of Borrowing and Payment. 522.14. Mandatory
Prepayments. 532.15. Use of Proceeds. 542.16. Defaulting Lender.
54III. INTEREST AND FEES. 563.1. Interest. 563.2. Letter of Credit
Fees; Cash Collateral. 563.3. Unused Commitment Fee. 573.4. Fee
Letter. 573.5. Computation of Interest and Fees. 573.6. Maximum
Charges. 573.7. Increased Costs. 573.8. Benchmark Replacement. 58
DB1/ 141780467.7TABLE OF CONTENTS(continued)Page-ii-3.9. Capital Adequacy. 593.10. Taxes. 60IV. COLLATERAL: GENERAL
TERMS. 644.1. Security Interest in the Collateral. 644.2. Perfection of Security Interest. 644.3. [Reserved]. 654.4.
Preservation of Collateral. 654.5. Ownership of Collateral. 654.6. Defense of Agents and Lenders Interests. 664.7. Books
and Records. 664.8. Financial Disclosure. 664.9. Compliance with Laws. 674.10. Inspection of Premises. 674.11. Insurance.
674.12. [Reserved]. 684.13. Payment of Taxes. 684.14. Payment of Leasehold Obligations. 684.15. [Reserved]. 684.16.
[Reserved]. 684.17. [Reserved]. 684.18. Exculpation of Liability. 684.19. [Reserved]. 694.20. Financing Statements.
694.21. [Reserved]. 694.22. Agent as Collateral Agent. 69V. REPRESENTATIONS AND WARRANTIES. 715.1. Authority. 715.2.
Formation and Qualification. 725.3. [Reserved]. 725.4. Tax Returns. 725.5. Financial Statements. 725.6. Entity Name. 73
DB1/ 141780467.7TABLE OF CONTENTS(continued)Page-iii-5.7. O.S.H.A. and
Environmental Compliance. 735.8. Solvency; No Litigation, Violation,
Indebtedness or Default. 735.9. Patents, Trademarks, Copyrights and
Licenses. 745.10. Licenses and Permits. 755.11. No Defaults. 755.12.
No Burdensome Restrictions. 755.13. No Labor Disputes. 755.14. Margin
Regulations. 755.15. Investment Company Act. 765.16. Disclosure.
765.17. Swaps. 765.18. Conflicts. 765.19. [Reserved]. 765.20. Business
and Property of Loan Parties. 765.21. Material Contracts. 775.22.
Sanctions. 775.23. Anti-Corruption and Anti-Bribery Laws. 775.24.
[Reserved]. 775.25. Beneficial Ownership Certification. 77VI. AFFIRMATIVE
COVENANTS. 776.1. Payment of Fees. 786.2. Conduct of Business and
Maintenance of Existence and Assets. 786.3. Violations. 786.4. Use
of Proceeds 786.5. Execution of Supplemental Instruments. 786.6. Payment
of Indebtedness. 786.7. Standards of Financial Statements. 786.8.
Financial Covenants. 796.9. Keepwell 796.10. Designation of Subsidiaries
796.11. Post-Closing Obligations 80VII. NEGATIVE COVENANTS. 80
DB1/ 141780467.7TABLE OF CONTENTS(continued)Page-iv-7.1. Merger,
Consolidation and Sale of Assets. 807.2. Creation of Liens; Negative
Pledges. 817.3. Guarantees. 817.4. Investments. 817.5. Sales and
Lease-Backs 817.6. Restricted Payments. 827.7. Indebtedness. 827.8.
Nature of Business. 827.9. Transactions with Affiliates. 837.10.
[Reserved]. 837.11. Subsidiaries 837.12. Fiscal Year and Accounting
Changes. 837.13. Compliance with ERISA. 837.14. Amendment of
Documents and Material Contracts. 847.15. Prepayment, Amendment of
Indebtedness. 847.16. State of Organization. 857.17. Sanctions;
Anti-Bribery Laws. 85VIII. CONDITIONS PRECEDENT. 858.1. Conditions
to the Closing Date. 858.2. Conditions to Each Advance. 88IX.
INFORMATION AS TO LOAN PARTIES. 889.1. Disclosure of Material Matters.
899.2. [Reserved]. 899.3. [Reserved]. 899.4. Litigation. 899.5. Material
Occurrences. 899.6. [Reserved]. 899.7. Annual Audited Financial
Statements. 899.8. Quarterly Financial Statements. 899.9. [Reserved].
909.10. Other Reports. 909.11. Additional Information. 90
DB1/ 141780467.7TABLE OF CONTENTS(continued)Page-v-9.12. Projected Operating Budget. 909.13. [Reserved]. 919.14. Notice of
Suits, Events. 919.15. ERISA Notices and Requests. 919.16. [Reserved]. 919.17. [Reserved]. 919.18. Beneficial Ownership
Documentation. 919.19. [Reserved]. 919.20. Additional Documents. 91X. EVENTS OF DEFAULT. 91XI. LENDERS RIGHTS AND REMEDIES AFTER
DEFAULT. 9311.1. Rights and Remedies. 9311.2. Application of Proceeds. 9411.3. Agents Discretion. 9411.4. Setoff. 9511.5.
Rights and Remedies Not Exclusive. 95XII. WAIVERS AND JUDICIAL PROCEEDINGS. 9512.1. Waiver of Notice. 9512.2. Delay. 9512.3.
Jury Waiver. 95XIII. EFFECTIVE DATE AND TERMINATION. 9613.1. Term. 9613.2. Termination. 96XIV. REGARDING AGENT. 9614.1.
Appointment. 9614.2. Nature of Duties. 9714.3. Lack of Reliance on Agent and Resignation. 9814.4. Certain Rights of Agent.
9914.5. Reliance. 10014.6. Notice of Default. 10014.7. Indemnification. 10014.8. Agent in its Individual Capacity. 101
DB1/ 141780467.7TABLE OF CONTENTS(continued)Page-vi-14.9. Delivery of Documents.
10114.10. Loan Parties Undertaking to Agent. 10114.11. Bankruptcy Proceedings.
10114.12. No Liability for Clean-Up of Hazardous Materials. 10214.13. Certain
ERISA Matters. 10214.14. Rates. 10314.15. Erroneous Payments. 10314.16.
Joint Lead Arrangers and Joint Bookrunners 106XV. MISCELLANEOUS. 10615.1.
Governing Law. 10615.2. Entire Understanding; Amendments. 10715.3. Successors
and Assigns; Participations; New Lenders. 10815.4. Application of Payments.
11015.5. Indemnity; Funding Losses. 11115.6. Notice. 11115.7. Survival.
11215.8. Severability. 11315.9. Expenses. 11315.10. Injunctive Relief.
11315.11. Consequential Damages. 11315.12. Captions. 11415.13. Counterparts;
Telecopied Signatures. 11415.14. Construction. 11415.15. Confidentiality. 11415.16.
Publicity. 11515.17. Electronic Execution of Assignments and Certain Loan
Documents 11515.18. Confirmation of Flood Policies and Procedures 11515.19.
Patriot Act Notice. 11615.20. Acknowledgement Regarding Any Supported QFCs.
11615.21. Acknowledgement and Consent to Bail-In of Affected Financial
Institutions. 11615.22. Currency Conversion. 11715.23. Lender Representations. 117
DB1/ 141780467.7149079106.6 -i-List of Exhibits and SchedulesExhibitsExhibit
A [Reserved]Exhibit B Form of Compliance CertificateExhibit C Form
of Revolving Credit NoteExhibit D Form of Promissory Note for Swingline
LoansExhibit E Form of Notice of BorrowingExhibit F Form of Notice
of ConversionExhibits H-1 to H-4 Form of U.S. Tax Compliance
CertificatesExhibit I Form of Commitment Transfer SupplementSchedulesSchedule
1.1 CommitmentsSchedule 1.2(a) Commercial Tort ClaimsSchedule 1.2(b)
Subsidiary GuarantorsSchedule 1.3 Unrestricted SubsidiariesSchedule 4.5
LocationsSchedule 5.2(a) Formation and QualificationSchedule 5.2(b)
Subsidiaries and EquityholdersSchedule 5.4 Federal Tax Identification
Nos.Schedule 5.6 Entity NamesSchedule 5.7 EnvironmentalSchedule 5.8(b)
LitigationSchedule 5.8(d) PlansSchedule 5.9 Intellectual PropertySchedule
5.10 Licenses and PermitsSchedule 6.11 Post-Closing ObligationsSchedule
7.2 Existing LiensSchedule 7.3(a) Existing GuaranteesSchedule 7.3(b)
Existing Subsidiary GuaranteesSchedule 7.4 Existing InvestmentsSchedule
7.7 Existing IndebtednessSchedule 7.9 Existing Affiliate Transactions
DB1/ 149079106.6LOAN AND SECURITY AGREEMENTThis Loan and Security Agreement is entered into as of December 16,
2021, by and amongVeeco Instruments Inc., a Delaware corporation (Borrower), the Guarantors (as hereinafter
defined)which are now or which hereafter become a party hereto, HSBC BANK USA, NATIONALASSOCIATION (HSBC)
and the other financial institutions which are now or which hereafter becomea party hereto (each, a Lender
and collectively, the Lenders), HSBC, as administrative agent andcollateral agent for the Lenders (in such
capacities, the Agent), and HSBC, Barclays Bank PLC,Santander Bank, N.A. and, CitiBank, N.A. and Citizens
Bank, N.A. as joint lead arrangers (in suchcapacity, the Joint Lead Arrangers) and joint bookrunners (in
such capacity, the Joint Bookrunners).WHEREAS, Borrower has requested that the Lenders provide a revolving
credit facility of up toan aggregate principal amount of $150,000,000 to pay fees and expenses related to the
Transactions (ashereinafter defined) and for ongoing working capital and general corporate purposes, and
the Lendershave agreed to provide such a revolving credit facility and the Issuer (as hereinafter defined)
hasindicated its willingness to provide a letter of credit facility (as a sub-facility of such revolving
creditfacility), in each case, subject to the terms and conditions of this Agreement; andWHEREAS, the Lenders
have indicated their willingness to lend, and the Issuer has indicated itswillingness to issue Letters
of Credit, on the terms and subject to the conditions set forth herein.IN CONSIDERATION of the mutual
covenants and undertakings herein contained, each LoanParty (as defined below), the Lenders and the Agent
hereby agree as follows:I. DEFINITIONS.1.1. Accounting Terms.As used in this Agreement, the Notes, any Loan
Document, or any certificate, report or otherdocument made or delivered pursuant to this Agreement, accounting
terms not defined in Section 1.2 orelsewhere in this Agreement and accounting terms partly defined in Section
1.2 to the extent not defined,shall have the respective meanings given to them under GAAP; provided,
however, whenever suchaccounting terms are used for the purposes of determining compliance with financial
covenants in thisAgreement, such accounting terms shall be defined in accordance with GAAP as applied in
preparationof the audited financial statements of Borrower for the fiscal year ended December 31,
2021.Notwithstanding the foregoing, for the avoidance of doubt any lease that is treated as an operating leasefor
purposes of GAAP as of December 14, 2018 shall not be treated as Indebtedness or as a capital leaseand shall
continue to be treated as an operating lease (and any future lease, if it were in effect on the datehereof,
that would be treated as an operating lease for purposes of GAAP as of the date hereof shall betreated as
an operating lease), in each case for purposes of this Agreement, notwithstanding any actual orproposed
change in GAAP after the date hereof.1.2. General Terms.For purposes of this Agreement the following terms
shall have the following meanings:2025 Convertible Notes means the 3.50% Convertible Senior Exchange Notes
due 2025,issued by Borrower in the original aggregate principal amount of $132,500,000 pursuant to that
certainIndenture, dated as of November 17, 2020, by and among Borrower and U.S. Bank National Association,
2APPLICABLE MARGIN FORSOFR LOANSas trustee, as the same may be amended, restated, amended
and restated, supplemented, or otherwisemodified from time to time in accordance
with the terms thereof and hereof.2027 Convertible Notes means the 3.75% Convertible
Senior Notes due 2027, issued byBorrower in the original aggregate principal amount
of $125,000,000 pursuant to that certain Indenture,dated as of May 18, 2020, by and among
Borrower and U.S. Bank National Association, as trustee, as thesame may be amended,
restated, amended and restated, supplemented, or otherwise modified from timeto time
in accordance with the terms thereof and hereof.Accountants shall have the meaning
set forth in Section 9.7.Adjusted Term SOFR means, for purposes of any calculation and
subject to the provisions ofSection 3.8, the rate per annum equal to (a) Term SOFR
for such calculation plus (b) the Term SOFRAdjustment.Adjustment Date shall have the
meaning set forth in the definition of Applicable Margin.Advances shall mean and
include the Revolving Advances, Swingline Loans, and Letters ofCredit.Affected
Financial Institution means (a) any EEA Financial Institution or (b) any UK
FinancialInstitution.Affiliate of any Person shall mean (a) any Person which, directly or
indirectly, is in control of,is controlled by, or is under common control with such Person,
or (b) any Person who is a director,officer, manager, managing member or partner (i)
of such Person, (ii) of any Subsidiary of such Person or(iii) of any Person described
in clause (a) above. For purposes of this definition, control of a Person shallmean
the power, direct or indirect, to direct or cause the direction of the management
and policies ofsuch Person whether by ownership of Equity Interests, contract or
otherwise.Agent shall have the meaning set forth in the preamble to this Agreement and
shall include itssuccessors and permitted assigns.Agent Parties shall have the meaning
set forth in Section 15.23.Agreement shall mean this Loan and Security Agreement,
as the same may be amended,restated, amended and restated, modified and/or supplemented
from time to time.Applicable Law shall mean all laws, rules and regulations applicable
to the Person, conduct,transaction, covenant, Loan Document or contract in question,
including all applicable common law andequitable principles; all provisions of
all applicable state, federal and foreign constitutions, statutes,rules, regulations and
orders of any Governmental Body, and all orders, judgments and decrees of allcourts
and arbitrators.Applicable Margin shall mean, as of the Closing Date, the applicable
percentage specifiedbelow:0.50% 1.50%APPLICABLE MARGIN FORDOMESTIC RATE LOANS
3Greater than or equalto 0.75:1.00 but lessthan 1.50:1.00APPLICABLEMARGINS FORSOFR LOANS0.75%
1.75%Greater than or equalto 1.50:1.00 but lessthan 2.25:1.00Less than 0.75:1.001.00%SECURED
NETLEVERAGERATIO2.00%0.50%Greater than or equalto 2.25:1.001.50%1.25%APPLICABLEMARGINS FORDOMESTIC RATELOANS2.25%If
Borrower shall fail to deliver the financial statements, certificates and/or other informationrequired
under Sections 9.7 and 9.8, as applicable, by the dates required pursuant to such sections, eachApplicable
Margin shall be conclusively presumed to equal the highest Applicable Margin specified inthe
pricing table set forth above until the date of delivery of such financial statements, certificates
and/orother information, at which time the rate will be adjusted based upon the Secured Net Leverage
Ratioreflected in such statements.If, as a result of any restatement of, or other adjustment to, the
financial statements of Borroweror for any other reason, Agent determines in its reasonable discretion
after consultation with Borrowerthat (a) the Secured Net Leverage Ratio as previously calculated as
of any applicable date was inaccurate,and (b) a proper calculation of the Secured Net Leverage Ratio
would have resulted in different pricingfor any period, then (i) if the proper calculation of the
Secured Net Leverage Ratio would have resultedin higher pricing for such period, Borrower shall
automatically and retroactively be required to pay to theLender, promptly upon demand by the Lender,
an amount equal to the excess of the amount of interestthat should have been paid for such period over
the amount of interest actually paid for such period; and(ii) if the proper calculation of the
Secured Net Leverage Ratio would have resulted in lower pricing forsuch period, Lender shall have no
obligation to repay interest to Borrower; provided that, if as a result ofany restatement or other event
a proper calculation of the Secured Net Leverage Ratio would haveresulted in higher pricing for one
or more periods and lower pricing for one or more other periods (due tothe shifting of income or
expenses from one period to another period or any similar reason), then theamount payable by Borrower
pursuant to clause (i) above shall be equal to the excess, if any, of theamount of interest that
should have been paid for all applicable periods over the amounts of interestactually paid for such
periods.Thereafter, effective as of the first Business Day following receipt by Agent of the financialstatements
of Borrower and Compliance Certificate for the quarter ending December 31, 2021 requiredunder
Section 9.8, and thereafter upon receipt of the financial statements of Borrower required underSections
9.7 and 9.8, as applicable, for each fiscal quarter or fiscal year ending thereafter (each day
ofsuch delivery, an Adjustment Date), the Applicable Margin shall be adjusted, if necessary, to theapplicable
percent per annum set forth in the pricing table set forth below corresponding to the SecuredNet
Leverage Ratio for the trailing twelve month period ending on the last day of the most recentlycompleted
fiscal quarter prior to the applicable Adjustment Date (each such period, a CalculationPeriod):
Approved Fund shall mean any Fund that is advised or managed by (a) a Lender, (b) anAffiliate of a Lender or (c) an
entity or Affiliate of an entity that administers or manages a Lender.Authority shall have the meaning set forth in
Section 4.19(c).Authorized Officer shall mean with respect to any Loan Party, the chief executive officer,president,
vice president, chief financial officer, senior accountant, treasurer, assistant treasurer,secretary, assistant
secretary, controller, comptroller or any other Person with an equivalent title or roleof such Loan Party or such
other officers as Borrower shall designate in writing to Agent, but in anyevent, with respect to financial matters,
the chief financial officer, senior accountant, treasurer, assistanttreasurer, controller, comptroller or any other
Person with an equivalent title or role of Borrower.Available Amount shall mean Maximum Revolving Advance Amount
minus, in either case,the sum of (1) the outstanding amount of the Revolving Advances and Swingline Loans plus
(2) theLetter of Credit Reserve.Available Tenor means, as of any date of determination and with respect to the
then-currentBenchmark, as applicable, if such Benchmark is a term rate, any tenor for such Benchmark (orcomponent thereof)
that is or may be used for determining the length of an interest period pursuant to thisAgreement as of such date
and not including, for the avoidance of doubt, any tenor for such Benchmarkthat is then-removed from the definition
of Interest Period pursuant to Section 3.8.Bail-In Action means the exercise of any Write-Down and Conversion
Powers by theapplicable EEA 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 Article55 of Directive 2014/59/EU
of the European Parliament and of the Council of the European Union, theimplementing law, regulation rule or
requirement for such EEA Member Country from time to timewhich 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
failingbanks, investment firms or other financial institutions or their affiliates (other than through
liquidation,administration or other insolvency proceedings).Bank Product Obligations shall mean the following services or
facilities extended to any LoanParty by Agent, Lender or any of their respective Affiliates: (a) credit cards, (b)
credit card processingservices, (c) debit cards, (d) purchase cards, (e) ACH transactions, EFT or any other electronic
fundstransfer, (f) cash management, including controlled disbursement accounts or services, and (g) tradefinance
arrangements.Bankruptcy Code shall mean Chapter 1 of Title 11 of the United States Code (11 U.S.C 202,et seq.), as
amended from time to time.Bankruptcy Proceeding shall have the meaning set forth in Section 14.11.Base Rate shall
mean, on any date, a variable rate of interest per annum equal to the highest of(a) the highest of the prime rate,
reference rate, base rate or other similar rate as determined byAgent (or any successor to Agent) announced from
time to time by HSBC (or any successor to HSBC)(with the understanding that any such rate may merely be a reference
rate and may not necessarilyrepresent the lowest or best rate actually charged to any customer by such bank), (b) the
Federal FundsRate plus of 1%, and (c) Adjusted Term SOFR for a one month Interest Period on such day (or if such4
day is not a Business Day, the immediately preceding Business Day) plus one percent (1.00%) perannum; and each
change in any interest rate provided for in this Agreement based upon Base Rate shalltake effect at the time of
such change in the Base Rate.Benchmark means, initially, the Term SOFR Reference Rate; provided that if a
BenchmarkTransition Event has occurred with respect to the Term SOFR Reference Rate or the then-currentBenchmark, then
Benchmark means the applicable Benchmark Replacement to the extent that suchBenchmark Replacement has replaced such
prior benchmark rate pursuant to Section 3.8.Benchmark Replacement means with respect to any Benchmark Transition
Event, the firstalternative set forth in the order below that can be determined by Agent for the applicable
BenchmarkReplacement Date:(a) Daily Simple SOFR plus (b) 0.10%; or(b) the sum of: (i) the alternate benchmark rate
that has been selected by Agent and theBorrower giving due consideration to (A) any selection or recommendation
of a replacement benchmarkrate or the mechanism for determining such a rate by the Relevant Governmental Body or
(B) anyevolving or then-prevailing market convention for determining a benchmark rate as a replacement to
thethen-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the relatedBenchmark Replacement
Adjustment.If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be lessthan the
Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of thisAgreement and the other
Loan DocumentsBenchmark Replacement Adjustment means, with respect to any replacement of thethen-current Benchmark
with an Unadjusted Benchmark Replacement, the spread adjustment, or methodfor calculating or determining such
spread adjustment, (which may be a positive or negative value orzero) that has been selected by Agent and the
Borrower giving due consideration to (a) any selection orrecommendation of a spread adjustment, or method for
calculating or determining such spreadadjustment, for the replacement of such Benchmark with the applicable Unadjusted
BenchmarkReplacement by the Relevant Governmental Body or (b) any evolving or then-prevailing marketconvention
for determining a spread adjustment, or method for calculating or determining such spreadadjustment, for the
replacement of such Benchmark with the applicable Unadjusted BenchmarkReplacement for Dollar-denominated syndicated
credit facilities.Benchmark Replacement Date means the earliest to occur of the following events with respectto
the then-current Benchmark:(a) in the case of clause (a) or (b) of the definition of Benchmark Transition Event,
thelater of (i) the date of the public statement or publication of information referenced therein and (ii) thedate
on which the administrator of such Benchmark (or the published component used in the calculationthereof) permanently
or indefinitely ceases to provide such Benchmark (or such component thereof) or, ifsuch Benchmark is a term rate,
all Available Tenors of such Benchmark (or such component thereof); or(b) in the case of clause (c) of the
definition of Benchmark Transition Event, the first dateon which such Benchmark (or the published component used
in the calculation thereof) has been or, ifsuch Benchmark is a term rate, all Available Tenors of such Benchmark
(or such component thereof)have been determined and announced by or on behalf of the administrator of such Benchmark
(or suchcomponent thereof) or the regulatory supervisor for the administrator of such Benchmark (or such5
component thereof) to be non-representative or non-compliant with
or non-aligned with the InternationalOrganization of Securities
Commissions (IOSCO) Principles for Financial Benchmarks; provided
thatsuch non-representativeness, non-compliance or non-alignment
will be determined by reference to themost recent statement or
publication referenced in such clause (c) and even if such Benchmark
(or suchcomponent thereof) or, if such Benchmark is a term
rate, any Available Tenor of such Benchmark (orsuch component
thereof) continues to be provided on such date.For the avoidance
of doubt, if such Benchmark is a term rate, the Benchmark
Replacement Date will bedeemed to have occurred in the case of clause
(a) or (b) with respect to any Benchmark upon theoccurrence of
the applicable event or events set forth therein with respect to all
then-current AvailableTenors of such Benchmark (or the published
component used in the calculation thereof).Benchmark Transition
Event means the occurrence of one or more of the following
events withrespect to the then-current Benchmark:(a) a public
statement or publication of information by or on behalf of the
administrator ofsuch Benchmark (or the published component used
in the calculation thereof) announcing that suchadministrator has
ceased or will cease to provide such Benchmark (or such component
thereof) or, if suchBenchmark is a term rate, all Available
Tenors of such Benchmark (or such component thereof),permanently
or indefinitely; provided that, at the time of such statement or
publication, there is nosuccessor administrator that will continue
to provide such Benchmark (or such component thereof) or, ifsuch
Benchmark is a term rate, any Available Tenor of such Benchmark
(or such component thereof);(b) a public statement or publication
of information by the regulatory supervisor for theadministrator
of such Benchmark (or the published component used in the
calculation thereof), theFederal Reserve Board, the Federal Reserve
Bank of New York, an insolvency official with jurisdictionover
the administrator for such Benchmark (or such component), a
resolution authority with jurisdictionover the administrator for such
Benchmark (or such component) or a court or an entity with
similarinsolvency or resolution authority over the administrator for
such Benchmark (or such component),which states that the administrator
of such Benchmark (or such component) has ceased or will
cease toprovide such Benchmark (or such component thereof) or,
if such Benchmark is a term rate, all AvailableTenors of such
Benchmark (or such component thereof) permanently or indefinitely;
provided that, at thetime of such statement or publication,
there is no successor administrator that will continue to providesuch
Benchmark (or such component thereof) or, if such Benchmark
is a term rate, any Available Tenorof such Benchmark (or such
component thereof); or(c) a public statement or publication of
information by or on behalf of the administrator ofsuch Benchmark
(or the published component used in the calculation thereof)
or the regulatorysupervisor for the administrator of such Benchmark
(or such component thereof) announcing that suchBenchmark (or
such component thereof) or, if such Benchmark is a term rate, all
Available Tenors ofsuch Benchmark (or such component thereof)
are not, or as of a specified future date will not be,representative
or in compliance with or aligned with the International
Organization of SecuritiesCommissions (IOSCO) Principles for
Financial Benchmarks.For the avoidance of doubt, if such Benchmark
is a term rate, a Benchmark Transition Event will bedeemed to
have occurred with respect to any Benchmark if a public statement
or publication ofinformation set forth above has occurred with
respect to each then-current Available Tenor of suchBenchmark
(or the published component used in the calculation thereof).Benchmark
Unavailability Period means, the period (if any) (a)
beginning at the time that aBenchmark Replacement Date has occurred
if, at such time, no Benchmark Replacement has replaced the6
then-current Benchmark for all purposes hereunder and under any Loan Document in accordance withSection 3.8 and
(b) ending at the time that a Benchmark Replacement has replaced the then-currentBenchmark for all purposes
hereunder and under any Loan Document in accordance with Section 3.8.Beneficial Ownership Certification means a
certification regarding beneficial ownershiprequired by the Beneficial Ownership Regulation.Beneficial Ownership
Regulation means 31 C.F.R. Sec. 1010.230.Benefit Plan means any of (a) an employee benefit plan (as defined in
ERISA) that is subjectto Title I of ERISA, (b) a plan as defined in and subject to Section 4975 of the Code or
(c) any Personwhose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of
ERISAor Section 4975 of the Code) the assets of any such employee benefit plan or plan.BHC Act Affiliate of a
Person means an affiliate (as such term is defined under, andinterpreted in accordance with, 12 U.S.C. 1841(k))
of such Person.Borrower shall have the meaning set forth in the preamble to this Agreement and shall extendto
all of its successors and assigns expressly permitted under this Agreement.Borrowers Account shall have the meaning
set forth in Section 2.8.Business Day shall mean any day other than a day on which commercial banks in New
York,New York are authorized or required by law to close.Calculation Period shall have the meaning set forth in
the definition of Applicable Margin.Capital Lease shall mean any lease of any property (whether real, personal
or mixed) that, inconformity with GAAP, should be accounted for as a capital lease.Capital Lease Obligations shall
have the meaning provided in sub-clause (c) of the definitionof Indebtedness.Cash Equivalents shall mean: (a)
marketable direct obligations issued or unconditionallyguaranteed by the United States Government or issued by
any agency thereof and backed by the full faithand credit of the United States, in each case maturing within
two (2) years from the date of acquisitionthereof; (b) commercial paper maturing no more than one (1) year from
the date issued and, at the time ofacquisition, having a rating of at least A-1 from Standard & Poors Ratings
Service or at least P-1 fromMoodys Investors Service, Inc.; (c) certificates of deposit or bankers acceptances
maturing within one(1) year from the date of issuance thereof issued by, or overnight reverse repurchase agreements
from,any commercial bank organized under the laws of the United States of America or any state thereof or
theDistrict of Columbia having combined capital and surplus of not less than $500,000,000 and whoseshort-term debt
obligations are rated at least P-1 by Moodys Investors Service, Inc. or at least A-1 byStandard & Poors Ratings
Service; (d) up to $100,000 per institution and up to $1,000,000 in theaggregate in (i) short-term debt obligations
issued by any local commercial bank or trust companylocated in those areas where Borrower conducts its business,
whose deposits are insured by the FederalDeposit Insurance Corporation, or (ii) commercial bank-insured
money market funds, or any combinationof investments described in clauses (i) and (ii); (e) overnight investments
with such financial institutionshaving a short term deposit rating of at least P-1 by Moodys Investors Service,
Inc. or at least A-1 byStandard & Poors Ratings Service, (f) money market mutual funds that (i) invest solely
in theinvestments described in clauses (a) through (e) above or (ii) (A) comply with the criteria set forth in7
Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, asamended, (B) are rated at
least Aaa by Moodys Investors Service, Inc. and at least AAA by Standard &Poors Ratings Service and (C) have portfolio
assets of not less than $5,000,000,000, (g) marketablecorporate bonds for which an active trading market exists
and price quotations are available, in each casematuring within one (1) year from the date of acquisition thereof
and issued by Persons that are notAffiliates of Borrower and where such Persons (i) have a long-term credit rating
of at least A+ fromStandard & Poors Ratings Service or A1 from Moodys Investors Service, Inc., (h) marketable
directobligations issued by any state of the United States of America or the District of Columbia or any
publicinstrumentality thereof, in each case maturing within two (2) years from the date of acquisition thereofand, at the
time of acquisition, having a rating of at least A-1 from Standard & Poors Ratings Service orat least P-1 from
Moodys Investors Service, Inc., and (i) deposit accounts maintained with (x) anycommercial bank that satisfies the
criteria described in clause (c) above, or (y) any other commercialbank organized under the laws of the United States
of America or any state thereof so long as the fullamount maintained with any such other bank is insured by the
Federal Deposit Insurance Corporation.Casualty Event means any event that gives rise to the receipt by Borrower or
any RestrictedSubsidiary of any insurance proceeds or condemnation awards arising from any damage to, destructionof,
or other casualty or loss involving, or any seizure, condemnation, confiscation or taking under powerof eminent
domain of, or requisition of title or use of or relating to or in respect of any equipment, fixedassets or Real
Property (including any improvements thereon) of Borrower or any such RestrictedSubsidiary.CERCLA shall mean the
Comprehensive Environmental Response, Compensation andLiability Act of 1980, as amended, 42 U.S.C. 9601 et seq.CFC
shall mean a Subsidiary of Borrower that is a controlled foreign corporation within themeaning of Section 957 of the
Code.Change of Control shall mean any of the following:(a) any person or group of persons (within the meaning of
Section 13(d) or 14(d) of theExchange Act) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgatedby the SEC under the Exchange Act) of forty percent (40%) or more of the voting Equity Interests
ofBorrower (excluding any such Equity Interests acquired by any employee of the Loan Parties or theirAffiliates
pursuant to stock option and other compensation plans and benefit programs or agreementsapproved by Borrowers board of
directors (or equivalent governing body));(b) any person or group of persons shall have acquired, by contract or
otherwise, or shallhave entered into a contract or arrangement that, upon consummation thereof, will result in its
or theiracquisition of the power to exercise, directly or indirectly, control over the Equity Interests of suchpersons
entitled to vote for members of the board of directors of Borrower (on a fully diluted basis andtaking into
account all such Equity Interests that such person or group of persons has the right to acquirepursuant to any
option right) representing forty percent (40%) or more of the combined voting power ofsuch Equity Interests; or(c)
Borrower fails to directly or indirectly own and control one hundred percent (100%) ofeach class of the outstanding
Equity Interests of each other Loan Party, except in connection with atransaction permitted under this Agreement.8
Closing Date shall mean the date on which all of the conditions precedent set forth in
Section8.1 shall have been satisfied or waived by Agent and, as applicable, the Lenders
or the Required Lenders,which date is December 16, 2021.Code shall mean the Internal
Revenue Code of 1986, as the same may be amended orsupplemented from time to time,
and any successor statute of similar import, and the rules andregulations thereunder,
as from time to time in effect.Collateral shall mean and include, with respect to
each Loan Party:(a) all Receivables;(b) all Equipment;(c) all General Intangibles
(including, without limitation, all Intellectual Property);(d) all chattel paper;(e) all
Inventory;(f) all instruments;(g) all goods;(h) all Investment Property, including,
without limitation, all Subsidiary Stock;(i) Equity Interests;(j) all money, cash and
Cash Equivalents;(k) all letters of credit, letter-of-credit rights and supporting
obligations;(l) all deposit accounts and securities accounts with any bank or other
financialinstitution or securities intermediary (including all cash, Cash Equivalents,
financial assets, negotiableinstruments and other evidence of payment, and other funds
on deposit or credited thereto);(m) all commercial tort claims, including those specified
on Schedule 1.2(a); and(n) all of the Proceeds and products, whether tangible or
intangible, of any of theforegoing, including proceeds of insurance or commercial tort
claims covering or relating to any or all ofthe foregoing, and any and all Receivables,
books and records, chattel paper, deposit accounts,Equipment, instruments, goods,
fixtures, General Intangibles, Inventory, Investment Property, IntellectualProperty,
securities accounts, Equity Interests, letters of credit, letter-of-credit rights,
supportingobligations, money, cash, Cash Equivalents or other tangible or intangible property
resulting from thesale, lease, license, exchange, collection, or other disposition of
any of the foregoing, the proceeds of anyaward in condemnation with respect to any
of the foregoing, any rebates or refunds, whether for taxes orotherwise, and all proceeds
of any such proceeds, or any portion thereof or interest therein, and theproceeds
thereof, and all proceeds of any loss of, damage to, or destruction of the above, whether
insuredor not insured, and, to the extent not otherwise included, any indemnity,
warranty, or guaranty payable byreason of loss or damage to, or otherwise with respect
to any of the foregoing (the Proceeds). Withoutlimiting the generality of the foregoing,
the term Proceeds includes whatever is receivable or receivedwhen Investment Property
or proceeds are sold, exchanged, collected, or otherwise disposed of, whether9
10Less than 0.75:1.00 0.25%SECURED NETLEVERAGERATIOGreater than
or equalto 0.75:1.00 but lessCOMMITMENTFEE PERCENTAGE0.30%such
disposition is voluntary or involuntary, and includes proceeds of
any indemnity or guaranty payableto any Loan Party or Agent from
time to time with respect to any of the Investment
Property.Notwithstanding any of the other provisions set forth in this
Agreement, this Agreement shall notconstitute a grant of a security
interest in, and Collateral shall not include: (A) any property
to theextent that such grant of a security interest is prohibited
by any Applicable Law or constitutes a breach ordefault under
or results in the termination of or requires any consent not
obtained under, any contract,lease, permit, license or license
agreement, except to the extent that such Applicable Law or the
term insuch contract, lease, permit, license or license agreement
is ineffective under Section 9-406, 9-407, 9-408or 9-409 of the
UCC (or any successor provision or provisions) of any relevant
jurisdiction or any otherApplicable Law (including the Bankruptcy
Code) or principles of equity; provided, however, that suchsecurity
interest shall attach immediately at such time as such Applicable
Law is not effective orapplicable, or such prohibition,
breach, default or termination is no longer applicable or is waived,
and tothe extent severable, shall attach immediately to any
portion of the Collateral that does not result in suchconsequences;
and provided, further, that the foregoing shall not be deemed
to limit, impair, or otherwiseaffect Agents continuing security
interests in and Liens upon any rights or interest of any Loan
Party inor to (i) monies due or to become due under or in connection
with any described contract, lease, permit,license or license
agreement (including, without limitation, in respect of any
Receivables or proceeds ofInventory), or (ii) any proceeds from the
sale, license, lease or other disposition of any such contract,lease,
permit, license or license agreement; (B) interests in Real
Property; (C) motor vehicles and otherassets subject to certificates
of title, (D) Subsidiary Stock in excess of 65% of the voting
Equity Interestsof any FSHCO or CFC to the extent such action
would, in the good faith judgment of Borrower, result inadverse
Tax consequences to Borrower or any of its direct or indirect
beneficial owners; (E) any assets tothe extent that the costs, tax
consequences or regulatory consequences to any Loan Party (or
any of itsequity holders) of obtaining such a security interest
or the perfection thereof shall exceed the benefit ofthe collateral
security provided to Agent, as reasonably agreed upon by Agent
and Borrower; (F) anyasset subject to capital leases and purchase
money financing to the extent such capital leases andpurchase
money financing are permitted under this Agreement and prohibit
the granting of a Lien; (G)any application for registration of a
trademark filed with the USPTO on an intent-to-use basis until
suchtime (if any) as a statement of use or amendment to allege
use is accepted by the USPTO, at which timesuch trademark shall
automatically become part of the Collateral and subject to the
security interestpledged; (H) Excluded Accounts; (I) Equity Interests
of any Subsidiary that is a direct or indirectSubsidiary of
any FSHCO or CFC; and (J) for the avoidance of doubt, the Equity
Interests of Borrower(clauses (A) through (J) above, collectively,
the Excluded Property); provided that ExcludedProperty shall not
include any Proceeds, products, substitutions or replacements
of Excluded Property(unless such Proceeds, products, substitutions or
replacements would otherwise constitute ExcludedProperty).Collateral
Agent shall mean HSBC, in its capacity as collateral agent
for Agent, the Issuer andthe Lenders, and its successors
and permitted assigns.Commitment Fee Percentage shall mean, as
of the most recent Adjustment Date, the applicablepercent per
annum set forth in the pricing table set forth below corresponding
to the Secured NetLeverage Ratio for the Calculation Period:
11Greater than or equalto 1.50:1.00 but lessthan 2.25:1.000.35%than 1.50:1.00Greater than or
equalto 2.25:1.000.35%provided that for the period from the Closing Date through and including
the first Adjustment Datefollowing the Closing Date, the Commitment Fee Percentage shall be
0.25%.Commitment Percentage of any Lender shall mean each percentage set forth below suchLenders
under the applicable heading on Schedule 1.1 to this Agreement as same may be adjusted
uponany assignment by a Lender pursuant to Section 15.3 or upon the making of an Incremental
RevolvingCommitment pursuant to Section 2.4.Commitment Transfer Supplement shall mean a document
in the form of Exhibit I, properlycompleted and otherwise in form and substance satisfactory to
Agent by which the Purchasing Lenderpurchases and assumes a portion of outstanding Advances and
the obligation of Lenders to makeAdvances under this Agreement.Commitments shall mean, as to
any Lender, its obligation to make Advances (includingparticipating in Letters of Credit) in
an aggregate amount not to exceed at any one time outstanding theamount set forth below such
Lenders name under the applicable heading on Schedule 1.1 to thisAgreement under the heading
Commitment Amount, as same may be adjusted upon any assignment bya Lender pursuant to Section 15.3
or upon the making of an Incremental Revolving Commitmentpursuant to Section 2.4.Commodity
Exchange Act shall mean the Commodity Exchange Act (7 U.S.C. 1 et seq.), asamended from time to
time, and any successor statute.Compliance Certificate shall mean a certificate of an Authorized
Officer of Borrower in theform of Exhibit B hereto.Conforming Changes means, with respect
to either the use or administration of Term SOFR orthe use, administration, adoption or
implementation of any Benchmark Replacement, any technical,administrative or operational changes
(including changes to the definition of Base Rate, the definitionof Business Day, the definition
of U.S. Government Securities Business Day, the definition ofInterest Period or any similar or
analogous definition (or the addition of a concept of interest period),timing and frequency of
determining rates and making payments of interest, timing of borrowing requestsor prepayment,
conversion or continuation notices, the applicability and length of lookback periods, theapplicability
of Section 3.8 and other technical, administrative or operational matters) that Agent
decidesmay be appropriate to reflect the adoption and implementation of any such rate or to permit
the use andadministration thereof by Agent in a manner substantially consistent with market
practice (or, if Agentdecides that adoption of any portion of such market practice is not
administratively feasible or if Agentdetermines that no market practice for the administration of
any such rate exists, in such other manner ofadministration as Agent decides is reasonably
necessary in connection with the administration of thisAgreement and the other Loan Documents).
Connection Income Taxes shall mean Other Connection Taxes that are imposed on ormeasured by net
income (however denominated) or that are franchise Taxes or branch profits Taxes.Consents shall
mean all filings and all governmental or regulatory licenses, permits, consents,approvals,
authorizations, qualifications and orders of Governmental Bodies and other third parties,domestic or
foreign, necessary to carry on any Loan Partys business or necessary (including to avoid aconflict
or breach under any agreement, instrument, other document, license, permit or otherauthorization)
for the execution, delivery or performance of this Agreement, the other Loan Documents,including
any Consents required under all applicable federal, state or other Applicable Law.Consolidated
EBITDA shall mean, for any Person and its Subsidiaries (other than anyUnrestricted Subsidiaries),
for any fiscal period, an amount equal to the sum of:a) Consolidated Net Income for such
period, plusb) solely to the extent deducted in determining Consolidated Net Income for such
period, andwithout duplication,i. Consolidated Interest Expense,ii. provision for Taxes imposed on
Borrower and its Subsidiaries based on income or profitsor capital as determined on a consolidated
basis in accordance with GAAP, including,without limitation, federal, state, local, foreign,
franchise, excise, value added, andsimilar taxes and foreign withholding taxes paid or accrued
during such period includingpenalties and interest related to such taxes or arising from any tax
examinations and anytax distributions related to the foregoing or otherwise permitted under this
Agreement,andiii. depreciation and amortization (including amortization of deferred financing
fees)determined on a consolidated basis in accordance with GAAP, plusc) except with respect to
clauses (iii), (v) and (vi) of this clause (c), to the extent deducted indetermining Consolidated
Net Income for such period (if applicable), and without duplication,i. expenses, losses, charges
or write-downs deemed unusual in nature or infrequent inoccurrence in accordance with GAAP,ii.
non-cash charges, expenses or losses, including, without limitation, any non-cashcompensation,
non-cash translation (gain) loss and non-cash expense relating to thevesting of warrants (except
to the extent such non-cash charge represents an accrual for afuture cash charge),iii. restructuring,
integration, business optimization costs, costs related to undertaking costsaving initiatives,
operating expense reductions, operating improvements and othersynergies, retention, recruiting,
relocation and other types of bonuses and expenses, andseverance costs,iv. any costs, fees
(including, without limitation, reasonably documented board andconsultant fees) and expenses
in connection with (i) the negotiation, execution anddelivery of the Loan Documents, any other
agreements entered into in connectiontherewith and the consummation of the transactions on the
Closing Date and (ii)Permitted Acquisitions, Investments, dispositions (other than ordinary course12
dispositions), issuance, repayment, amendments or modifications, negotiation,forbearance, extension
or waiver of Indebtedness or issuance of Equity Interests, in eachcase whether or not consummated;
provided that the aggregate amount added backpursuant to this clause (iv) in respect of any such
transaction not permitted by thisAgreement shall not exceed 5.0% of Consolidated EBITDA after giving
effect to suchadd-back and all other add-backs contemplated in this definition,v. run rate cost
savings, operating savings, operating expense reductions and costsynergies from transactions permitted
under this Agreement projected by Borrower ingood faith to result from actions taken during such period
to the extent Borrowerreasonably expects to realize such savings, reductions and synergies within
twenty-four(24) months of the date of taking such action (calculated on a pro forma basis as thoughsuch
savings, reductions and synergies have been realized on the first day of such period,net of the
aggregate amount of actual savings, reductions and synergy benefits realized)so long as such savings,
reductions and synergies are reasonably identifiable, factuallysupported and set forth in reasonable
detail in the applicable compliance certificate forsuch period; provided that, with respect to this
clause (v), to the extent that such savings,reductions or synergies are not reasonably expected by
Borrower to be realized withintwenty-four (24) months of the date of taking such action, such savings,
reductions andsynergies shall not be included in this definition of Consolidated EBITDA for anyperiod
thereafter,vi. all adjustment of the type set forth in any quality of earnings report or other
reportconducted by any financial advisor or operational consultant that is nationally orregionally
recognized,vii. (1) proceeds of business interruption insurance that are received and/or (2) charges,losses
or expenses to the extent paid for, indemnified, insured or reimbursed by a thirdparty, in each
case, in cash (to the extent not directed to be paid by Borrower to a thirdparty) or, so long as
Borrower has made a determination that a reasonable basis existsthat applicable insurance, payment,
indemnification and/or reimbursement will occurwithin 365 days from the date of the underlying charge,
loss or expense, and only to theextent that such amount is (A) not denied by the insurer or other
applicable party inwriting within 180 days and (B) in fact paid, indemnified or reimbursed within 365
daysof such determination (with a deduction in the applicable future period for any amount soadded
back to the extent not so paid, indemnified or reimbursed within such 365 days),andviii.fees payable
under Section 3.2, minusd)i) the sum of income and gain items corresponding to those referred to
in clauses (c)(i) and(c)(ii) above,ii) any extraordinary, one-time or non-recurring gains,provided
that, notwithstanding the foregoing, (1) the aggregate amount added back (excluding non-cashamounts)
to the extent supported with reasonable documentation made pursuant to clauses (i), (iii), (iv),(v),
and (vi) shall not in any event exceed 15.0% of Consolidated EBITDA after giving effect to such13
add-backs and all other add-backs contemplated hereby, and (2) no cap
or limitation shall apply withrespect to non-cash amounts added back to
Consolidated Net Income.Notwithstanding anything to the contrary contained
herein, if during any applicable period anyLoan Parties shall have consummated
a Permitted Acquisition, or any sale, transfer or other dispositionof
any Person, business, property or assets, Consolidated EBITDA shall be
calculated on a pro formabasis with respect to such Person, business,
property or assets so acquired or so disposed of.Consolidated Funded Debt
shall mean, as of any date of determination, without duplication,all
Indebtedness of any Person and its Subsidiaries (other than any Unrestricted
Subsidiaries) of the typedescribed in clauses (a), (b), (c), (e), (f)
(only with respect to unreimbursed amounts thereunder), and(h) (except to
the extent relating to Indebtedness of the type described in clause (d)
of the definition ofIndebtedness) of the definition of Indebtedness and
all guarantees by Borrower and its Subsidiaries of theforegoing types of
Indebtedness, in each case, measured on a consolidated basis as of such
date.Consolidated Interest Expense means, for any fiscal period, Interest
Expense of any Person andits Subsidiaries (other than any Unrestricted
Subsidiaries) on a consolidated basis as shown in the profitand loss
statement for that period, determined in accordance with GAAP, including all
commissions,discounts and other fees and charges owed with respect to
letters of credit and net costs under SwapObligations, but excluding,
however, (i) amortization, expensing or write-off of financing costs or
debtdiscount or expense, (ii) the portion of the upfront costs and expenses
for Swap Obligations (to the extentincluded in interest expense) fairly
allocated to such Swap Obligations as expenses for such period, lessinterest
income on Hedging Agreements for that period and Hedging Agreement
payments received, and(iii) any fees and/or expenses paid in connection
with the consummation of the closing hereof and anyagency fees payable to
the Agent in connection with the Loan Documents, any Permitted Acquisition
orother Permitted Investments or in connection with any amendment or
waiver with respect to anyoutstanding Indebtedness or any expenses and
upfront fees (including any original issue discount)incurred in connection
with any Indebtedness the proceeds of which are applied to fund any
PermittedAcquisition or other Permitted Investment.Consolidated Net Income
shall mean, with respect to any Person, for any period, the aggregateof
the net income (or loss) of such Person and its Subsidiaries (other than
any Unrestricted Subsidiaries),on a consolidated basis, for such period,
excluding to the extent included therein any extraordinary,one-time or
non-recurring gains, after deducting all charges which should be deducted
before arriving atthe net income (or loss) for such period including the
Provision for Taxes for such period, all asdetermined in accordance with
GAAP; provided that, (a) the net income of any Person that is not aSubsidiary
or that is accounted for by the equity method of accounting shall
be included only to theextent of the amount of dividends or distributions
paid or payable to such Person or a majority-ownedSubsidiary of such
Person; (b) the effect of any change in accounting principles adopted by
(or applicableto) such Person or its Subsidiaries after the date hereof
(including any cumulative effects resulting fromchanges in purchase
accounting principles) shall be excluded; (c) the net income (if positive) of
anymajority-owned Subsidiary to the extent that the declaration or payment
of dividends or similardistributions by such majority-owned Subsidiary
to such Person or to any other majority-ownedSubsidiary of such Person
is not at the time permitted by operation of the terms of its charter or
anyagreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable tosuch majority-owned Subsidiary shall be
excluded; and (d) the net income (or loss) of any Personaccrued prior to
the earlier of (i) the date such Person becomes a Subsidiary of Borrower
or any of itsconsolidated Subsidiaries or (ii) the date such Person is
merged into or consolidated with Borrower orany of its consolidated
Subsidiaries or (iii) the date such Persons assets are acquired by Borrower
or anyof its consolidated Subsidiaries, in each case pursuant to a Permitted
Acquisition, shall be included as ifsuch Permitted Acquisition occurred
on the first day of such period. For the purpose of this definition,14
net income excludes any gain together with any related Provision for Taxes for such gain realized
uponthe sale or other disposition of any assets other than in the ordinary course of business
or of any EquityInterests of such Person or a Subsidiary of such Person.Consolidated Total
Assets shall mean, as of any date of determination, the amount that would,in accordance with
GAAP, be set forth opposite the caption total assets (or any like caption) on aconsolidated
balance sheet of Borrower and its Restricted Subsidiaries at such date.Contract Rate has the
meaning specified therefor in Section 3.1 of this Agreement.Control means the possession, directly
or indirectly, of the power to direct or cause thedirection of the management or policies
of a Person, whether through the ability to exercise votingpower, by contract or otherwise.
Controlling and Controlled have meanings correlative thereto.Controlled Group shall mean, at any
time, the Loan Parties and all members of a controlledgroup of corporations and all trades or
businesses (whether or not incorporated) under common controland all other entities which,
together with any Loan Party, are treated as a single employer under Section414(b) or Section
414(c) of the Code (or, solely for purposes of Section 412 of the Code, under Section414(m) or
(o) of the Code).Covered Entity means any of the following:(a) a covered entity as that term
is defined in, and interpreted in accordance with, 12C.F.R. 252.82(b);(b) a covered bank as
that term is defined in, and interpreted in accordance with, 12 C.F.R. 47.3(b); or(c) 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 specified therefor in Section 15.20 of this Agreement.Daily Simple SOFR
means, for any day, SOFR, with the conventions for this rate (which willinclude a lookback)
being established by Agent in accordance with the conventions for this rate selectedor recommended
by the Relevant Governmental Body for determining Daily Simple SOFR forsyndicated business
loans; provided that if Agent decides that any such convention is notadministratively feasible
for Agent, then Agent may establish another convention in its reasonablediscretion.Default
shall mean an event, circumstance or condition which, with the giving of notice orpassage of
time or both, would constitute an Event of Default.Default Rate shall have the meaning set forth
in Section 3.1.Default Right has the meaning assigned to that term in, and shall be interpreted
in accordancewith, 12 C.F.R. 252.81, 47.2 or 382.1, as applicable.Defaulting Lender shall
means, subject to Section 2.16(e), any Lender that (a) has failed to (i)fund all or any portion
of any Advance within two (2) Business Days of the date such Advances wererequired to be
funded hereunder unless such Lender notifies Agent and Borrower in writing that suchfailure is
the result of such Lenders determination that one or more conditions precedent to funding15
(each of which conditions precedent, together with any applicable default, shall
be specifically identifiedin such writing) has not been satisfied, or (ii) pay
to Agent, the Issuer, any Swingline Lender or any otherLender any other amount
required to be paid by it hereunder (including in respect of its participation
inLetters of Credit or Swingline Loans) within two (2) Business Days of the
date when due, (b) hasnotified Borrower, Agent or the Issuer or Swingline
Lender in writing that it does not intend to complywith its funding obligations
hereunder, or has made a public statement to that effect, (c) has failed,
withintwo (2) Business Days after written request by Agent or Borrower, to confirm
in writing to Agent andBorrower that it will comply with its prospective funding
obligations hereunder (provided that suchLender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such writtenconfirmation
by Agent and Borrower), or (d) has, or has a direct or indirect parent company
that has, (i)become the subject of a proceeding under the Bankruptcy Code
of the United States of America, or anyother liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium,rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws of the
United Statesor other applicable jurisdictions from time to time in effect, (ii)
become the subject of a Bail-In Action or(iii) had appointed for it a receiver,
custodian, conservator, trustee, administrator, assignee for the benefitof
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 authorityacting in such a capacity; provided
that a Lender shall not be a Defaulting Lender solely by virtue of theownership
or acquisition of any equity interest in that Lender or any direct or indirect
parent companythereof by a Governmental Body so long as such ownership interest
does not result in or provide suchLender with immunity from the jurisdiction
of courts within the United States or from the enforcement ofjudgments or
writs of attachment on its assets or permit such Lender (or such Governmental
Body) toreject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender. Anydetermination 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 bedeemed to be a
Defaulting Lender (subject to Section 2.16(e)) upon delivery of written notice of
suchdetermination to Borrower, the Issuer, each Swingline Lender and each
Lender.Disqualified Equity Interests means any Equity Interest that, by its terms (or
by the terms ofany security or other Equity Interests into which it is convertible
or for which it is exchangeable), orupon the happening of any event or
condition (a) matures or is mandatorily redeemable (other than solelyfor Equity
Interests which do not otherwise constitute Disqualified Equity Interests and
cash in lieu offractional shares), pursuant to a sinking fund obligation or
otherwise (except as a result of a change ofcontrol or asset sale so long as any
rights of the holders thereof upon the occurrence of a change ofcontrol or asset
sale event shall be subject to the prior repayment in full of the Advances
and all otherObligations that are accrued and payable and the termination of the
Revolving Commitments), (b) isredeemable at the option of the holder thereof
(other than solely for Equity Interests which do nototherwise constitute
Disqualified Equity Interests and cash in lieu of fractional shares), in whole
or inpart, (c) provides for the scheduled payments of dividends in cash, or
(d) is or becomes convertible intoor exchangeable for Indebtedness (which is
not permitted under Section 7.7) or any other Equity Intereststhat would
constitute Disqualified Equity Interests, in each case, prior to the date that is
ninety-one (91)days after the Termination Date; provided, however, that only the
portion of such Equity Interests whichso matures or is mandatorily redeemable,
is so convertible or exchangeable or is so redeemable at theoption of the
holder thereof prior to such date shall be deemed to be Disqualified Equity
Interests.Disqualified Institutions shall mean (a) any Person designated by Borrower
in writing to theAgent prior to the Closing Date (and any Affiliate thereof
clearly identifiable as an Affiliate solely on thebasis of the similarity of its
name), (b) any Person that is or becomes a competitor designated byBorrower
in writing at any time (and any Affiliate thereof clearly identifiable as an
Affiliate solely on thebasis of the similarity of its name), (c) additional
competitors designated by Borrower in writing at anytime (and any Affiliate
thereof clearly identifiable as an Affiliate thereof solely on the basis of the16
similarity of its name), and (d) any known Affiliate of a Person described in clauses (a) and (b) aboveidentified
in writing by Borrower to the Agent at any time; provided no designation shall have retroactiveeffect
to any prior assignment to any Lender permitted hereunder or under the Loan Documents (butfurther assignments
and participations shall be prohibited); and provided further that any addition to theDisqualified
Institutions made in accordance with this paragraph shall not be effective until the 3rdBusiness Day
following the Agents receipt of written notice of such addition. For the avoidance ofdoubt, the Agent shall
not be responsible or have any liability for, or have any duty to ascertain, inquireinto, monitor or enforce
compliance with the provisions under the Loan Documents relating toDisqualified Institutions.Dollars
and the sign $ shall mean lawful money of the United States of America.Domestic Rate Loan shall mean any
Advance that bears interest based upon the Base Rate.Domestic Subsidiary of any Person, shall mean any
Subsidiary of such Person that is organizedor incorporated in the United States or any State or territory
thereof.EEA Financial Institution means (a) any credit institution or investment firm established in anyEEA
Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entityestablished
in an EEA Member Country which is a parent of an institution described in clause (a) of thisdefinition,
or (c) any financial institution established in an EEA Member Country which is a subsidiaryof an
institution described in clauses (a) or (b) of this definition and is subject to consolidatedsupervision
with its parent.EEA Member Country shall mean any of the member states of the European Union,
Iceland,Liechtenstein, and Norway.EEA Resolution Authority means any public administrative authority or any person
entrustedwith public administrative authority of any EEA Member Country (including any delegee)
havingresponsibility for the resolution of any EEA Financial Institution.Election Period shall have the meaning
set forth in Section 2.4(c).Eligible Assignee shall have the meaning set forth in Section 15.3 (c).Eligible
Party means an eligible contract participant for purposes of Section 1a(18) of theCommodity Exchange
Act, regulations promulgated thereunder and binding guidance thereunderpromulgated by the Commodity
Futures Trading Commission.Environmental Laws shall mean all federal, state and local environmental, land
use, zoning,health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating to
the protectionof the environment and/or governing the use, storage, treatment, generation, transportation,
processing,handling, production or disposal of Hazardous Substances and the rules, regulations, policies,
guidelines,interpretations, decisions, orders and directives of federal, state and local governmental
agencies andauthorities with respect thereto.Equipment shall mean and include all of each Loan Partys
goods (other than Inventory)whether now owned or hereafter acquired and wherever located including,
without limitation, allequipment, machinery, apparatus, motor vehicles, fittings, furniture, furnishings,
fixtures, parts,accessories and all replacements and substitutions therefor or accessions thereto.17
Equity Interests of any Person shall mean any and all shares, rights to purchase, options,warrants, general,
limited or limited liability partnership interests, member interests, participation orother equivalents of or
interest in (regardless of how designated) equity of such Person, whether voting ornonvoting, including common
stock, preferred stock, convertible securities or any other equity security(as such term is defined in Rule 3a11-1
of the General Rules and Regulations promulgated by the SECunder the Exchange Act).ERISA shall mean the Employee
Retirement Income Security Act of 1974, as amended fromtime to time and the rules and regulations promulgated
thereunder.Erroneous Payment has the meaning assigned to it in Section 14.15(a).Erroneous Payment Deficiency
Assignment has the meaning assigned to it in Section14.15(d)(i).Erroneous Payment Impacted Class has the meaning
assigned to it in Section 14.15(d)(i).Erroneous Payment Return Deficiency has the meaning assigned to it in Section
14.15(d)(i).Erroneous Payment Subrogation Rights has the meaning assigned to it in Section 14.15(e).EU Bail-In
Legislation Schedule means the EU Bail-In Legislation Schedule published by theLoan Market Association (or any
successor person), as in effect from time to time.Event of Default shall mean the occurrence of any of the
events set forth in Article X.Exchange Act shall mean the Securities Exchange Act of 1934, together with all
rules,regulations and interpretations thereunder or related thereto.Excluded Accounts shall mean collectively,
payroll accounts, escrow accounts, foreignaccounts, fiduciary accounts, trust accounts, zero balance accounts and
other accounts held exclusivelyfor the benefit of an unaffiliated third party, including Tax escrow accounts,
and employee benefitsaccounts maintained in the ordinary course of business.Excluded Property has the meaning
assigned to it in the definition of Collateral.Excluded Subsidiary shall mean any Subsidiary that is (a) a Foreign
Subsidiary, (b) anUnrestricted Subsidiary, (c) any Subsidiary acquired by Borrower that, at the time of the
relevantacquisition, is an obligor in respect of assumed Indebtedness that is permitted under Section 7.7 and
wasnot incurred or modified in contemplation of such acquisition to the extent (and solely for so long as)
thedocumentation governing such assumed Indebtedness prohibits such Subsidiary from providing aguarantee hereunder,
(d) prohibited by applicable law, rule, regulation from guaranteeing the facilitiesunder this Agreement, or
which would require governmental (including regulatory) consent, approval,license or authorization to provide
a guarantee in each case, unless, such consent, approval, license orauthorization has been received (but without
obligation to seek the same), (e) prohibited fromguaranteeing the Obligations by any contractual obligation in
existence (x) on the Closing Date or (y) atthe time of the acquisition of such Subsidiary after the Closing Date
(to the extent such prohibition wasnot entered into in contemplation of such acquisition), (f) a not-for-profit
Subsidiary, (g) any SpecialPurpose Subsidiary, (h) an FSHCO, (i) any Domestic Subsidiary that is a direct or
indirect Subsidiary ofan FSHCO or CFC, (j) any Subsidiary regulated as an insurance company or any other captive
insuranceSubsidiary, (k) any Immaterial Subsidiary, and (l) any other Subsidiary with respect to which, in
thereasonable judgment of the Agent and Borrower, the cost or other consequences (including any adverse18
Tax consequences) of guaranteeing the Obligations shall be excessive in view of the benefits to beobtained by the Lenders
therefrom; provided that, notwithstanding the above, if a Subsidiary executes theGuaranty as a Guarantor then it shall
not constitute an Excluded Subsidiary (unless released from itsobligations under the Guaranty as a Guarantor in accordance
with the terms hereof and thereof).Excluded Swap Obligations means, with respect to any Guarantor, any Swap Obligation
if, andto the extent that, all or a portion of the guarantee of such Person of, or the grant by such Person of asecurity
interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal orunenforceable under the
Commodity Exchange Act or any rule, regulation or order of the CommodityFutures Trading Commission (or the application
or official interpretation of any thereof) by virtue ofsuch Persons failure for any reason not to constitute an Eligible
Party.Excluded Taxes shall mean any of the following Taxes imposed on or with respect to aRecipient or required to be
withheld or deducted from a payment to a Recipient, (a) Taxes imposed on ormeasured by net income or net profits (however
denominated), franchise Taxes, and branch profitsTaxes, in each case, (i) imposed as a result of such Recipient being organized
under the laws of, orhaving its principal office or, in the case of any Lender, its applicable lending office located
in, thejurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other ConnectionTaxes, (b)
in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or forthe account of such Lender
with respect to an applicable interest in an Advance or Commitment pursuantto a law in effect on the date on which (i)
such Lender acquires such interest in an Advance orCommitment (other than pursuant to an assignment request by Borrower
hereunder) or (ii) such Lenderchanges its lending office, except in each case to the extent that, pursuant to Section
3.10, amounts withrespect to such Taxes were payable either to such Lenders assignor immediately before such Lenderbecame
a party hereto or to such Lender immediately before it changed its lending office, (c) Taxesattributable to such Recipients
failure to comply with Section 3.10(g) and (d) any withholding Taxesimposed under FATCA.Existing Convertible Notes
shall mean, collectively, the 2025 Convertible Notes and the 2027Convertible Notes.Existing Subsidiary Guarantees means
each of those guaranty obligations listed on Schedule7.3(b).FATCA means Sections 1471 through 1474 of the Code, as of the
date of this Agreement (orany amended or successor version that is substantively comparable and not materially more onerous
tocomply with) any current or future regulations or official interpretations thereof and any agreemententered into
pursuant to Section 1471(b)(1) of the Code (or any amended or successor version describedabove), and any U.S. or non-U.S.
fiscal or regulatory legislation, rules, guidance, notes or practicesadopted pursuant to any intergovernmental agreement,
treaty or convention among Governmental Bodyentered into in connection with the implementation of such sections of the
Code or analogous provisionsof non-U.S. law.FCPA shall have the meaning set forth in Section 5.23.Federal Funds Rate
shall mean, for any period, a fluctuating interest rate per annum equal to,for each day during such period, the weighted
average of the rates on overnight Federal fundstransactions with members of the Federal Reserve System, as published
for such day (or if such day isnot a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, orif such rate is not so published for any day which is a Business Day, the average of quotations for such19
day on such transactions received by Agent from three (3) Federal funds brokers of recognized
standingselected by Agent.Federal Reserve Bank of New Yorks Website means the website of the Federal
Reserve Bankof New York at http://www.newyorkfed.org, or any successor source.Fee Letter shall mean
the Amended and Restated Fee Letter dated as of as of the date hereofbetween Borrower and HSBC.First
Amendment means that certain First Amendment to Loan and Security Agreement, datedas of the First
Amendment Effective Date, by and among the Loan Parties party thereto and the Lendersparty thereto
(which Lenders, shall, for the avoidance of doubt, constitute at least the Required Lenders).First
Amendment Convertible Notes means, collectively, any Existing Convertible Notes, anyRefinanced
Existing Convertible Notes Indebtedness issued as a replacement to all or a portion of theExisting
Convertible Notes, and any Permitted Convertible Indebtedness, in each case, in existence on
orafter the First Amendment Effective Date.First Amendment Effective Date shall have the meaning
set forth in the First Amendment.Floor means the benchmark rate floor, if any, provided in this
Agreement initially (as of theexecution of this Agreement, the modification, amendment or renewal
of this Agreement or otherwise)with respect to Term SOFR.Foreign Lender means a Lender that is not
a U.S. Person within the meaning of Section7701(a)(30) of the Code.Foreign Subsidiary of any Loan
Party, shall mean any Subsidiary of such Loan Party that is nota Domestic Subsidiary.Fronting
Exposure means, at any time there is a Defaulting Lender, (a) with respect to theIssuer, such
Defaulting Lenders Commitment Percentage of the outstanding Letter of Credit exposurewith respect to
Letters of Credit issued by such Issuer other than Letter of Credit exposure as to whichsuch Defaulting
Lenders participation obligation has been reallocated to other Lenders or cashcollateralized
in accordance with the terms hereof and (b) with respect to any Swingline Lender, suchDefaulting
Lenders Commitment Percentage of outstanding Swingline Loans made by such SwinglineLender other
than Swingline Loans as to which such Defaulting Lenders participation obligation hasbeen reallocated
to other Lenders.FSHCO shall mean any Domestic Subsidiary that has no material assets other
than EquityInterests, or Equity Interests and Indebtedness in one or more Foreign Subsidiaries
that are CFCs.Fund means any Person (other than a natural Person) that is (or will be) engaged in
making,purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions
of credit inthe ordinary course of its business.GAAP shall mean generally accepted accounting
principles in the United States of America ineffect from time to time, consistently applied.General
Intangibles shall mean and include, as to each Loan Party, all of such Loan Partysgeneral
intangibles, whether now owned or hereafter acquired including, without limitation, all paymentintangibles,
choses in action, commercial tort claims, causes of action, corporate or other business20
records, inventions, designs, patents, patent applications,
equipment formulations, manufacturingprocedures, quality control
procedures, trademarks, trademark applications, service marks, trade
secrets,goodwill, copyrights, design rights, software, computer
information, source codes, codes, records andupdates, registrations,
licenses, franchises, customer lists, tax refunds, tax refund
claims, computerprograms and computer software, all claims under
guaranties, security interests or other security held byor granted
to such Loan Party to secure payment of any of the Receivables by
a customer, all rights ofindemnification and all other intangible
property of every kind and nature (other than Receivables).Governmental
Body means the government of any nation or any political
subdivision thereof,whether at the national, state, territorial,
provincial, municipal or any other level, and any agency,authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive,legislative, judicial, taxing,
regulatory or administrative powers or functions of, or pertaining
to,government (including any supra-national bodies such as the
European Union or the European CentralBank).Guarantor shall mean
(i) on the Closing Date, the Restricted Subsidiaries of Borrower
listed onSchedule 1.2(b) and (ii) after the Closing Date, (x) each
other Restricted Subsidiary of Borrower that isnot an Excluded
Subsidiary, and (y) any other Person who may hereafter guarantee
payment orperformance of the whole or any part of the Obligations,
and Guarantors means collectively all suchPersons. For the avoidance
of doubt, no Excluded Subsidiary shall be a Guarantor.Guaranty
shall mean any guaranty of the Obligations executed by a Guarantor
in favor ofAgent for its benefit and for the ratable benefit
of Lenders, as the same may be amended, restated,amended and
restated, modified and/or supplemented from time to time.Hazardous
Substance shall mean, without limitation, any flammable explosives,
radon,radioactive materials, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, petroleumand petroleum
products, methane, hazardous materials, hazardous wastes, hazardous
or toxic substancesor related materials as defined in CERCLA, the
Hazardous Materials Transportation Act, as amended (49U.S.C.
Sections 1801, et seq.), the Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et seq.,or any other applicable Environmental
Law and in the regulations adopted pursuant thereto.Hedging
Agreement shall mean any interest rate exchange, collar, cap, swap,
adjustable strikecap, adjustable strike corridor or similar agreement
entered into by Borrower or any of its Subsidiaries inorder
to provide protection to, or minimize the impact upon, Borrower
or any Subsidiary thereof againstfluctuations in interest rates,
currency exchange rates or commodity prices in the ordinary course
ofBorrowers or such Subsidiarys business and not for speculative
purposes.HSBC shall have the meaning set forth in the preamble
to this Agreement and shall include itssuccessors and permitted
assigns.Immaterial Subsidiary shall mean any Restricted Subsidiary
as to which, as of any relevantdate of determination, (a) the
consolidated total assets of such Restricted Subsidiary and its
Subsidiaries(on a consolidated basis and giving effect to intercompany
eliminations) and all other ImmaterialSubsidiaries as of such
date (and their respective Subsidiaries (on a consolidated basis
and giving effectto intercompany eliminations)), do not exceed
an amount equal to 5.0% of the Consolidated Total Assets(giving
effect to intercompany eliminations) of Borrower and its Subsidiaries
as of the last day of themost recently ended fiscal quarter,
(b) the revenues of such Restricted Subsidiary and its Subsidiaries
(ona consolidated basis and giving effect to intercompany
eliminations) for such fiscal quarter and all otherImmaterial
Subsidiaries as of such date (on a consolidated basis and giving
effect to intercompanyeliminations) for such fiscal quarter do not
exceed an amount equal to 5.0% of the consolidated revenues21
(giving effect to intercompany eliminations) of Borrower and its
Restricted Subsidiaries for such quarter,and (c) does not own any
material Intellectual Property at such time; provided, if at any
time after theClosing Date, Immaterial Subsidiaries comprise in the
aggregate more than 12.5% of the consolidatedrevenues or 12.5% of the
Consolidated Total Assets of Borrower and its Restricted Subsidiaries,
thenBorrower shall designate in writing to the Agent that one or
more of such Subsidiaries is no longer anImmaterial Subsidiary
such that the foregoing condition ceases to be true. As of the Closing
Date,Ultratech Intl Inc. is the only Immaterial Subsidiary.Increase
Effective Date shall have the meaning set forth in Section
2.4(d).Incremental Revolving Commitment shall have the meaning
set forth in Section 2.4(b).Indebtedness of a Person at a particular
date shall mean shall mean, without duplication: (a)all obligations
of such Person for borrowed money, (b) all obligations of such
Person evidenced bybonds, debentures, notes or other similar
instruments, (c) all obligations of such Person in respect of thedeferred
purchase price of property or services or in respect of warrants
(other than trade payablesincurred in the ordinary course of business,
but, subject to clause (a) of the last sentence of thisdefinition,
including any obligations in respect of earn-outs and other contingent
acquisitionconsideration), (d) all obligations of such Person
under any conditional sale or other title retentionagreement(s)
relating to property acquired by such Person, (e) that portion
of obligations with respect toCapital Leases that is properly classified
as a liability on a balance sheet in conformity with GAAP(Capital
Lease Obligations) of such Person, (f) all obligations, contingent
or otherwise, of such Personin respect of Letters of Credit,
acceptances or similar extensions of credit, (g) all guarantees of
suchPerson of the type of Indebtedness described in clauses (a)
through (f) above, (h) all Indebtedness of athird party described
in clauses (a) through (f) above secured by any Lien on property
owned by suchPerson, whether or not such Indebtedness has been assumed
by such Person; provided that the amount ofany such Indebtedness
under this clause (h) shall be deemed to be the lesser of (A) the
total amount ofthird party Indebtedness secured by such Lien and
(B) the fair market value of the property subject tosuch Lien, (i)
all obligations of such Person in respect of Disqualified Equity
Interests, and (j) the hedgetermination value owed by of such Person
under any Hedging Agreements. The Indebtedness of anyPerson shall
include the Indebtedness of any partnership or joint venture in
which such Person is ageneral partner or a joint venturer, except
to the extent that the terms of such Indebtedness provide thatsuch
Person is not liable therefor.Notwithstanding the foregoing,
Indebtedness shall not include (a) obligations of such Person inrespect
of earn-outs, other contingent acquisition consideration, and
warrants until such obligationsbecome liabilities on the balance sheet
of such Person in accordance with GAAP (except to the extentsuch
obligations that are liabilities on the balance sheet of such Person
are payable solely in EquityInterests) and (b) Indebtedness pursuant
to earn-outs and other contingent acquisition consideration, ineach
case, that are not past due, and (c) Indebtedness (including
as a result of any lease that would havebeen treated as an operating
lease for purposes of GAAP as in effect on December 14, 2018),
arising as aresult of any changes in GAAP which would classify any
operating leases so characterized in accordancewith GAAP (as GAAP
is in effect as of December 15, 2018) as Capital Lease Obligations (or
theequivalent) required to be reflected on a consolidated balance
sheet of Borrower in accordance withGAAP.Indemnified Taxes shall means
(a) Taxes, other than Excluded Taxes, imposed on or withrespect
to any payment made by or on account of any obligation of any Loan
Party under this Agreementor any other Loan Document and (b) to
the extent not otherwise described in clause (a), Other
Taxes.Indemnitee shall have the meaning set forth in Section 15.5(a).22
Information Certificate shall mean the Information Certificate and the responses theretoprovided by the Loan Parties and
delivered to Agent.Intellectual Property shall mean rights in property constituting under any Applicable Law apatent, patent
application, copyright, trademark, service mark, trade name, mask work, or trade secret.Intellectual Property Agreements shall
mean any intellectual property security agreemententered into between a Loan Party and Agent pursuant to the terms hereof
in form and substancesatisfactory to Agent, together with each other intellectual property security agreement and
supplementthereto.Interest Coverage Ratio means, with respect to the last day of any fiscal period, the ratio ofConsolidated EBITDA
for the four (4) consecutive fiscal quarters ending on or immediately prior to suchfiscal period to Consolidated Interest
Expense for the four (4) consecutive fiscal quarters ending on orimmediately prior to such fiscal period.Interest Expense
shall mean, for any period, as to any Person, as determined in accordancewith GAAP, the total interest expense of such
Person (including the interest component of Capital Leasesfor such period and capitalized interest for such period), whether
paid or accrued during such period butwithout duplication, excluding interest paid in property other than cash.Interest
Payment Date means (a) as to any Domestic Rate Loan, the last Business Day of eachMarch, June, September and December and the
Termination Date and (b) as to any SOFR Loan, the lastday of each Interest Period therefor and, in the case of any Interest
Period of more than three monthsduration, each day prior to the last day of such Interest Period that occurs at three month
intervals afterthe first day of such Interest Period, and the Termination Date.Interest Period means, as to any Advance, the
period commencing on the date of such Advanceand ending on the last day of such period as selected by Borrower pursuant to
the provisions below (ineach case, subject to the availability thereof), as specified in the applicable Notice of Borrowing
orNotice of Conversion; provided that (i) if any Interest Period would end on a day other than a BusinessDay, such Interest
Period shall be extended to the next succeeding Business Day unless such nextsucceeding Business Day would fall in the next
calendar month, in which case such Interest Period shallend on the next preceding Business Day, (ii) any Interest Period
that commences on the last BusinessDay of a calendar month (or on a day for which there is no numerically corresponding day
in the lastcalendar month of such Interest Period) shall end on the last Business Day of the last calendar month ofsuch
Interest Period, (iii) no Interest Period shall extend beyond the Termination Date and (iv) no tenorthat has been removed
from this definition pursuant to Section 3.8 shall be available for specification insuch Notice of Borrowing or Notice of
Conversion. For purposes hereof, the date of an Advance initiallyshall be the date on which such Advance is made and thereafter
shall be the effective date of the mostrecent conversion or continuation of such Advance. The duration of each Interest
Period for any SOFRLoan shall be for a number of months selected by Borrower upon notice as set forth in Section 2.2(b).Inventory
shall mean and include all of each Loan Partys now owned or hereafter acquiredgoods, merchandise and other personal
property, wherever located, to be furnished under anyconsignment arrangement, contract of service or held for sale or lease,
all raw materials, work in process,finished goods and materials and supplies of any kind, nature or description which are
or might be usedor consumed in such Loan Partys business or used in selling or furnishing such goods, merchandise andother
personal property, all other inventory of each Loan Party, and all documents of title or otherdocuments representing them.23
24Greater than or equalto 0.75:1.00 but lessthan 1.50:1.00LETTER OFCREDIT
FEEPERCENTAGE1.75%Investment is any beneficial ownership interest in any Person
(including any Equity Interests),and any loan, advance or capital contribution
to any Person.Investment Property as defined in the UCC and shall include all of
each Loan Partys nowowned or hereafter acquired securities (whether certificated
or uncertificated), securities entitlements,securities accounts, commodities
contracts, commodities accounts, stocks, mutual fund shares, moneymarket shares
and U.S. Government securities.Issuer shall mean any Person who issues a Letter
of Credit and/or accepts a draft pursuant tothe terms thereof (it being agreed
that so long as HSBC shall be Agent or a Lender, then the Issuer shallbe HSBC);
provided, however, that in the event that HSBC is neither Agent nor a Lender,
the Issuerwith respect to all subsequently issued Letters of Credit shall be a
Lender selected by Borrower and thatagrees to be an Issuer hereunder.Joint
Bookrunners shall have the meaning ascribed to such term in the preamble.Joint Lead
Arrangers shall have the meaning ascribed to such term in the preamble.Junior
Lien Indebtedness means any Indebtedness of the Loan Parties that is secured by
a Lienon the Collateral that is contractually junior to the Liens securing the
Obligations to the writtensatisfaction of Agent and the Required Lenders.Lender
and Lenders shall have the meaning ascribed to such term in the preamble to
thisAgreement and shall include each Person which becomes a transferee, successor
or assign of any Lender.Lender-Provided Hedge shall mean a Hedging Agreement or
foreign exchange transactionwhich is provided by any Lender or any direct or
indirect Subsidiary or Affiliate of any Lender (or anyPerson that was a Lender or
a Subsidiary or Affiliate of a Lender at the time of entering into suchHedging
Agreement), which is entered into for hedging (rather than speculative)
purposes.Letter of Credit and Guarantee Fees shall have the meaning set forth in
Section 3.2.Letter of Credit Application shall have the meaning set forth in
Section 2.10.Letter of Credit Fee Percentage shall mean, as of the most recent
Adjustment Date, theapplicable percent per annum set forth in the pricing table set
forth below corresponding to the SecuredNet Leverage Ratio for the Calculation
Period:Greater than or equalto 1.50:1.00 but lessthan 2.25:1.002.00%Less than
0.75:1.00Greater than or equalto 2.25:1.001.50%2.25%SECURED NETLEVERAGERATIO
provided that for the period from the Closing Date through and including the first Adjustment Datefollowing the Closing
Date, the Letter of Credit Fee Percentage shall be 1.50%.Letter of Credit Reserve shall mean the sum of (a) the
Maximum Undrawn Amount of alloutstanding Letters of Credit plus (b) other than for purposes of calculating the Letter
of Credit Reservepursuant to Section 2.1(a)(2), all unpaid interest, fees and expenses related thereto.Letters
of Credit shall have the meaning set forth in Section 2.9.Lien shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, securityinterest, lien (whether statutory or otherwise), charge, claim or encumbrance, or
preference, priority orother security agreement or preferential arrangement held or asserted in respect of any
asset of any kindor nature whatsoever including, without limitation, any conditional sale or other title retention
agreement,any lease having substantially the same economic effect as any of the foregoing, and the filing of,
oragreement to give, any financing statement under the UCC or comparable law of any jurisdiction.Liquidity means, as
of any date of determination, the sum of (a) the aggregate amount ofdomestic unrestricted cash and Cash Equivalents
and of Borrower and (b) the Available Amount.Loan Documents shall mean, collectively, this Agreement, the Notes,
the Guaranty, theInformation Certificate, the Fee Letter, the Third Amendment Effective Date Fee Letter, theIntellectual
Property Agreements, the Stock Pledge Agreement, and any and all other agreements,instruments and documents,
including, without limitation, guaranties, pledges, powers of attorney,consents, and all other writings heretofore,
now or hereafter executed by any Loan Party or any Person(as authorized by a Loan Party) or by any Person
who becomes a Guarantor of the Obligations and/ordelivered to Agent or any Lender in respect of the transactions
contemplated by this Agreement.Loan Party shall mean, individually, Borrower and each Guarantor, and Loan Parties
shallmean, collectively, Borrower and the Guarantors.Material Adverse Effect shall mean a material adverse effect on
(a) the business, assets, orfinancial condition of Borrower or the Restricted Subsidiaries, taken as a whole, (b)
any ability of theLoan Parties to pay the Obligations in accordance with the terms hereof, (c) Agents Lien on
theCollateral or the priority of such Lien, or (d) the practical realization of the benefits of Agents and eachLenders
rights and remedies under this Agreement and the other Loan Documents (other than as theresult of an action or
failure to act on the part of Agent).Material Contract shall mean any contract or other agreement, written or oral,
of any LoanParty involving monetary liability of or to any Person in an amount in excess of $10,000,000 in any
fiscalyear, other than purchase orders issued by any Loan Party in the ordinary course of its business, and anyother
contract or other agreement, whether written or oral, to which any Loan Party is a party as to whichthe breach,
nonperformance, cancellation or failure to renew by any party thereto would have a MaterialAdverse Effect.
Notwithstanding the foregoing, no contract that gives rise to any Indebtedness of anyLoan Party shall constitute a
Material Contract for the purposes of this Agreement.Material Indebtedness means Indebtedness of Borrower or any
Restricted Subsidiary in anoutstanding principal amount of $10,000,000 or more in the aggregate (or the equivalent
thereof in anycurrency other than Dollars). For purposes of determining the amount of Material Indebtedness at any25
time, (a) undrawn committed amounts and (b) all amounts owing to all creditors under any syndicatedcredit
arrangement shall be included.Maximum Revolving Advance Amount shall mean $150,000,000225,000,000, as
such amountmay be changed from time to time pursuant to the terms hereof (including in connection
withassignments permitted hereunder and including pursuant to Section 2.4).Maximum Swingline Loan Amount shall
mean $10,000,000.Maximum Undrawn Amount shall mean with respect to any outstanding Letter of Credit, theamount
of such Letter of Credit that is or may become available to be drawn, including all automaticincreases
provided for in such Letter of Credit, whether or not any such automatic increase has
becomeeffective.Multiemployer Plan shall mean a Plan that is a multiemployer plan as defined in Sections3(37)
and 4001(a)(3) of ERISA.Multiple Employer Plan shall mean a Plan that has two or more contributing
sponsors(including any Loan Party or any member of the Controlled Group) at least two of whom are not
undercommon control, as such a plan is described in Section 4064 of ERISA.Net Cash Proceeds means, with
respect to the sale or disposition of any asset by a Person or aCasualty Event, the sum of cash and Cash
Equivalent received by such Person in connection with suchsale, disposition, or Casualty Event less (i)
the reasonable fees, commissions, and expenses relatedthereto and required to be paid by such Person in
connection with such sale or disposition, less (ii) alltaxes paid or reasonably estimated to be payable
in connection with such sale or disposition to the extent,but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paidor payable to a Person that is not an
Affiliate of any Loan Party or any of its Subsidiaries, and areproperly attributable to such transaction,
less (iii) any reserve for adjustment in respect of (x) the saleprice of the property that is the subject
of such sale or disposition established in accordance with GAAPand (y) any liabilities associated
with such property or asset and retained by such Person after such saleor disposition, to the extent that
in each case the funds described above in this clause (iii) are (x)deposited into escrow with a third
party escrow agent and (y) paid to Agent as a prepayment of theapplicable Obligations in accordance with
Section 2.14 of this Agreement at such time when suchamounts are no longer required to be set aside
as such a reserve, less (iv) any amounts used to repay orreturn any customer deposits required to be
repaid or returned as a result of sale or disposition.Non-Consenting Lender means any Lender that does not
approve any consent, waiver oramendment that (a) requires the approval of all or all affected Lenders in
accordance with the terms ofSection 15.2 and (b) has been approved by the Required Lenders.Non-Defaulting
Lenders shall have the meaning set forth in Section 2.16(b).Non-Guarantor Acquisition shall have the
meaning set forth in the definition of PermittedAcquisition.Note or Notes shall mean, individually or
collectively, the Revolving Credit Note and theSwingline Note.Notice of Borrowing shall mean a notice
of borrowing provided by Borrower to Agent insubstantially the form attached hereto as Exhibit E.26
Notice of Conversion shall mean a notice of conversion provided by Borrower to Agent insubstantially the form
attached hereto as Exhibit F.Obligations shall mean and include any and all of each Loan Partys Indebtedness
and/orliabilities under this Agreement or the other Loan Documents, any Lender-Provided Hedge or withrespect to
any Bank Product Obligation, to Agent, Lenders, the Issuer or any Affiliate of Agent, anyLender or the Issuer, of
every kind, nature and description, direct or indirect, secured or unsecured, joint,several, joint and several,
absolute or contingent, due or to become due, now existing or hereafter arising,contractual or tortious, liquidated
or unliquidated, regardless of how such indebtedness or liabilities ariseor by what agreement or instrument they
may be evidenced or whether evidenced by any agreement orinstrument (including all interest, fees and other
amounts accruing after the commencement of anybankruptcy or similar proceeding whether or not enforceable in such
proceeding) including all interest,expenses, fees, attorneys fees or other amounts chargeable to any Loan Party
pursuant to the terms ofthis Agreement or under any Loan Document and including all obligations of any Loan Party
to Agent,Lenders or the Issuer to perform acts or refrain from taking any action; provided that the Obligations
ofany Guarantor shall not include any Excluded Swap Obligations.Other Connection Taxes means, with respect to any
Recipient, Taxes imposed as a result of apresent or former connection between such Recipient and the jurisdiction
imposing such Tax (other thanconnections arising from such Recipient having executed, delivered, become a
party to, performed itsobligations under, received payments under, received or perfected a security interest
under, engaged inany other transaction pursuant to or enforced this Agreement or any other Loan Document, or sold
orassigned an interest in any Advance or this Agreement or any other Loan Document).Other Taxes shall mean any
and all present or future stamp, court or documentary, intangible,recording, filing, mortgage or mortgage recording
Taxes or any other excise or property Taxes, chargesor similar Taxes arising from any payment made hereunder
or from the execution, delivery orenforcement or registration of, from the receipt or perfection of a security
interest under, or otherwisewith respect to, this Agreement or any other Loan Document, except any such Taxes that
are OtherConnection Taxes imposed with respect to an assignment.Participant shall mean each financial institution
who shall be granted the right by any Lenderto participate in any of the Advances and who shall have entered
into a participation agreement in formand substance satisfactory to such Lender.Participant Register has the
meaning specified in Section 15.3(b).Payment Office shall mean initially 452 Fifth Avenue, New York, New York
10018;thereafter, such other office of Agent, if any, which it may designate by notice to the Loan Parties and toeach
Lender to be the Payment Office.Payment Recipient has the meaning assigned to it in Section 14.11(a).PBGC shall
mean the Pension Benefit Guaranty Corporation or any successor.Periodic Term SOFR Determination Day has the meaning
specified in the definition of TermSOFR.Perfection Exceptions means that no Loan Party shall be required (and
Agent shall not beauthorized) to (i) enter into control agreements with respect to, or otherwise perfect any
Lien bycontrol (or similar arrangements) over any asset (other than certificated securities and instruments),27
including commodities accounts, securities accounts, deposit accounts, futures accounts, other bankaccounts, cash and Cash
Equivalents and accounts related to the clearing, payment processing and similaroperations of Borrower and its Restricted
Subsidiaries, (ii) perfect the security interest in the following(in each case, other than by the filing of a general UCC
financing statement): (1) letter-of-credit rights (asdefined in the UCC), (2) commercial tort claims (as defined in the UCC),
(3) Fixtures (as defined in theUCC), except to the extent that the same are Equipment (as defined in the UCC) or are related
to RealProperty covered or intended by the Loan Documents to be covered by a mortgage and (4) all contractsand agreements
between any Loan Party and one or more additional parties, (iii) send notices to accountdebtors or other contractual
third-parties unless an Event of Default has not been cured or waived and iscontinuing and the Agent has exercised its rights
pursuant to Article XI of this Agreement, (iv) enter intoany security documents to be governed by the law of, or make any
filing in, any jurisdiction other thanthe United States, any state thereof or the District of Columbia, (v) deliver landlord
waivers, estoppels orcollateral access letters or (vi) deliver any stock certificates or stock powers (or equivalent) with
respectto the Equity Interests of any Immaterial Subsidiaries or Unrestricted Subsidiaries.Pension Benefit Plan shall
mean at any time any employee pension benefit plan (including aMultiple Employer Plan, but not a Multiemployer Plan) which
is covered by Title IV of ERISA or issubject to the minimum funding standards under Section 412 of the Code and either (i)
is maintained byany member of the Controlled Group; or (ii) has at any time within the preceding five years beenmaintained
by any entity which was at such time a member of the Controlled Group.Permitted Acquisition shall mean any acquisition
by Borrower or any of its RestrictedSubsidiaries of all or substantially all of the assets of any Person or a business or
division of such Person(whether pursuant to a merger or other transaction) or of all or a majority of the equity of a Person
in oneor a series of transactions that occurs; provided that:(a) before and after giving effect to such acquisition, no
Event of Default hasoccurred and is continuing or would result therefrom;(b) immediately before and after giving effect
to such acquisition, on a pro formabasis, (i) as of the most recently ended test period for which financial statements
shall have beendelivered, (calculated as if such acquisition had been made on the first day of the relevant testing
period)neither of the Total Net Leverage Ratio and Secured Net Leverage Ratio exceed an amount that is0.25:1.00 below the Total
Net Leverage Ratio and Secured Net Leverage Ratio required at such timeunder Section 6.8, and (ii) Liquidity is not less
than $75,000,000;(c) the Person or assets being acquired is in the same type of business conducted byBorrower and its
Restricted Subsidiaries on the Closing Date or any other businesses reasonably related,ancillary or complementary thereto or a
reasonable extension thereof;(d) such acquisition shall not be hostile and shall have been approved by the Boardof Directors
or other governing body of the Person whose equity or assets are proposed to be acquired tothe extent required by the
governing documents of the Person whose equity or assets are proposed to beacquired or by applicable law.(e) Borrower or
the applicable Restricted Subsidiary complies with the requirementsof Section 7.11(a);(f) Borrower and its Restricted
Subsidiaries shall not make Permitted Acquisitionsof Persons that do not become Guarantors or by purchase of assets that are
acquired directly bySubsidiaries that are not Guarantors (each a Non-Guarantor Acquisition) for aggregate consideration,28
together with any Investments made (in each case determined as of the date of making any suchInvestment),
in excess of the greater of (i) $25,000,000 and (ii) 25.0% of Consolidated EBITDA for themost
recent four (4) consecutive fiscal quarters for which financial statements have been delivered in
theaggregate outstanding at any time; and(g) if the total consideration, including the purchase price
and total liabilitiesassumed, of any such acquisition shall equal or exceed $75,000,000, not later
than five (5) Business Daysprior to the anticipated closing date of the proposed acquisition, Borrower
has provided Agent acertificate of an Authorized Officer of Borrower certifying that all of the
requirements set forth in thisdefinition have been satisfied or will be satisfied on or prior to the
consummation of such purchase oracquisition.Permitted Convertible Indebtedness means senior, unsecured
Indebtedness of the Borrowerthat is (x) issued pursuant to and in accordance with that certain
Purchase Agreement, dated as of May16, 2023, by and between the Borrower and Barclays Capital Inc.
evidencing the First AmendmentConvertible Notes issued on or after the First Amendment Effective Date that
are not comprised ofRefinanced Existing Convertible Notes Indebtedness issued as a replacement to all
or a portion of theExisting Convertible Notes, (y) convertible into shares of common stock of the
Borrower (or othersecurities or property following a merger event, reclassification or other change
of the common stock ofthe Borrower), cash or a combination thereof (such amount of cash determined
by reference to the priceof the Borrowers common stock or such other securities or property), and
cash in lieu of fractionalshares of common stock of the Borrower and (z) permitted to be incurred
pursuant to Section 7.7.Permitted Dispositions shall have the meaning set forth in Section 7.1(b).Permitted
Encumbrances shall mean:(a) Liens granted to or in favor of Agent for the benefit of Agent,
Lenders and/or theIssuer, which, in each case, secure Obligations;(b) Liens for Taxes, assessments or
other governmental charges (1) not delinquent or(2) being contested in good faith and by appropriate
proceedings and with respect to which properreserves have been taken by the applicable Loan Party;
provided that no notice of any such Lien has beenfiled or recorded under the Code and the Treasury
Regulations adopted thereunder or any otherApplicable Law;(c) deposits or pledges to secure obligations
under workers compensation, socialsecurity or similar laws, or under unemployment insurance;(d)
deposits or pledges to secure bids, tenders, contracts (other than contracts for thepayment of money),
leases, statutory obligations, surety, appeal bonds, customs bonds and otherobligations of like
nature arising in the ordinary course of such Loan Partys business;(e) judgment Liens that have been
stayed or bonded or otherwise would not result inan Event of Default and mechanics, workers, materialmens
or other like Liens arising in the ordinarycourse of such Loan Partys business with respect to
obligations which are not due or which are beingcontested in good faith by appropriate proceedings;29
(f) Liens for purchase money obligations and Capital Leases, provided that (i) theIndebtedness secured
by any such Lien is permitted under Section 7.7, and (ii) such Lien encumbers onlythe asset so
purchased;(g) leases or subleases of Real Property granted in the ordinary course of any LoanPartys
business (or, if referring to another Person, in the ordinary course of such Persons business), andleases,
subleases, non-exclusive licenses or sublicenses of personal property granted in the ordinarycourse of
any Loan Partys business (or, if referring to another Person, in the ordinary course of suchPersons
business), if the leases, subleases, licenses and sublicenses do not prohibit granting Agent asecurity
interest therein;(h) non-exclusive license of Intellectual Property granted to third parties in
theordinary course of business, and licenses of Intellectual Property that could not result in a legal
transferof title of the licensed property that may be exclusive in respects other than territory and
that may beexclusive as to territory only as to discrete geographical areas outside of the United States;(i)
Liens that are replacements of Permitted Encumbrances to the extent that theoriginal Indebtedness
is the subject of Permitted Indebtedness and so long as the replacement Liens onlyencumber those
assets that secured the original Indebtedness;(j) rights of setoff or bankers liens upon deposits of
funds in favor of banks orother depository institutions, solely to the extent incurred in connection
with the maintenance of depositaccounts in the ordinary course of business;(k) Liens granted in the
ordinary course of business on the unearned portion ofinsurance premiums securing the financing of insurance
premiums to the extent the financing is permittedunder the definition of Permitted Indebtedness;(l)
Liens in favor of customs and revenue authorities arising as a matter of law tosecure payment of
customs duties in connection with the importation of goods;(m) Liens existing on the Closing Date
and disclosed on Schedule 7.2;(n) other Liens securing Permitted Indebtedness as to which the
aggregateoutstanding amount of the obligations secured thereby at any time does not exceed the greater of
(i)$15,000,000 and (ii) 2.5% of Consolidated Total Assets as of the last day of the most recently-ended
testperiod;(o) survey exceptions, encumbrances, ground leases, easements or reservations of, orrights
of others for, governmental or regulatory licenses, rights-of-way, servitudes, sewers, electric
lines,drains, telegraph and telephone and cable television lines, gas and oil pipelines and other
similarpurposes, reservations of rights, or zoning, building codes or other restrictions (including,
withoutlimitation, minor defects or irregularities in title and similar encumbrances) as to the use of
RealProperties or Liens incidental to the conduct of the business of such Person or to the ownership of
itsproperties which do not in the aggregate materially adversely interfere with the ordinary conduct
of thebusiness of such Person;(p) Liens securing Indebtedness or other obligations of Borrower or a
Guarantorowing to Borrower or another Guarantor permitted to be incurred in accordance with Section 7.7;30
(q) Liens arising from, or from Uniform Commercial Code financing statementfilings regarding, operating
leases or consignments entered into by Borrower or Restricted Subsidiary inthe ordinary course of
business;(r) deposits made or other security provided in the ordinary course of business tosecure
liability to insurance carriers or under self-insurance arrangements in respect of such obligations;(s)
Liens (i) of a collection bank arising under Section 4-210 of the UniformCommercial Code, or any
comparable or successor provision, on items in the course of collection; (ii)attaching to pooling,
commodity trading accounts or other commodity brokerage accounts incurred in theordinary course of
business; and (iii) in favor of banking or other financial institutions or entities, orelectronic
payment service providers, arising as a matter of law encumbering deposits (including the rightof
set-off) and which are within the general parameters customary in the banking or finance industry;(t)
Liens that are contractual rights of set-off (i) relating to the establishment ofdepository relations
with banks or other Persons not given in connection with the issuance ofIndebtedness; (ii)
relating to pooled deposit or sweep accounts of Borrower or any Restricted Subsidiaryto permit
satisfaction of overdraft or similar obligations incurred in the ordinary course of business ofBorrower
and the Restricted Subsidiaries; or (iii) relating to purchase orders and other agreementsentered
into with customers of Borrower or any Restricted Subsidiary in the ordinary course of business;(u)
any encumbrance or restriction (including put and call arrangements) withrespect to Equity Interests
of any joint venture or similar arrangement pursuant to any joint venture orsimilar agreement;(v)
Liens on vehicles of Borrower or any Restricted Subsidiary granted in theordinary course of business;(w)
Liens arising solely by virtue of any statutory or common law provision orcustomary business
provision relating to bankers liens, rights of set off or similar rights;(x) Liens on securities
(other than Collateral) that are the subject of repurchaseagreements constituting Cash Equivalents;(y)
Liens encumbering reasonable customary initial deposits and margin depositsand similar Liens attaching
to commodity trading accounts or other brokerage accounts incurred in theordinary course of
business and not for speculative purposes;(z) restrictive covenants affecting the use to which Real
Property may be put;provided that such covenants are complied with;(aa) security given to a public
utility or any municipality or Governmental Bodywhen required by such utility or authority in
connection with the operations of that Person in the ordinarycourse of business;(bb) zoning by-laws and
other activity and land use restrictions, including, withoutlimitation, site plan agreements, development
agreements, contract zoning agreements and limitationsimposed under Environmental Law to secure
remedial obligations; and(cc) Liens securing Indebtedness or other obligations of any Special
PurposeSubsidiary (including any precautionary Uniform Commercial Code financing statements filed in31
connection with any Indebtedness permitted by clause (q) of the definition of Permitted Indebtedness);provided
that any such Liens are non-recourse to Borrower and its Restricted Subsidiaries;provided
that no Real Property having a fair market value equal to or greater than $25,000,000 shall
besubject to any Permitted Encumbrances except those referenced in clauses (b), (e), (f), (g),
(o), (z), (aa)and (bb) above.Permitted Indebtedness shall mean:(a) the Obligations;(b) Indebtedness
existing on the Closing Date and shown on Schedule 7.7;(c) unsecured Indebtedness to trade
creditors incurred in the ordinary course ofbusiness;(d) Indebtedness of (i) any Loan Party to any
other Loan Party, (ii) any RestrictedSubsidiary (which is not a Loan Party) to any other Restricted
Subsidiary (which is not a Loan Party),(iii) any Subsidiary (which is not a Loan Party) to any
Loan Party; and (iv) any Loan Party to anySubsidiary (which is not a Guarantor); provided that (A)
the aggregate principal amount of suchIndebtedness under this clause (iv) does not exceed the
greater of (i) $10,000,000 and (ii) 1.5% ofConsolidated Total Assets as of the last day of the most
recently ended test period, and (B) allIndebtedness under this clause (iv) is subordinated to
the Obligations of such Loan Party under thisAgreement and the other Loan Documents in a manner
reasonably satisfactory to Agent;(e) Indebtedness incurred as a result of endorsing negotiable
instruments received inthe ordinary course of business;(f) Indebtedness secured by purchase money Liens
and Capital Lease Obligations(in each case incurred prior to or within 365 days of the acquisition
or lease or completion ofconstruction, repair or replacement of, or improvement to or installation
of, assets) not exceeding thegreater of (i) $15,000,000 and (ii) 2.5% of Consolidated Total Assets
as of the last day of the mostrecently-ended test period, in the aggregate outstanding at any
time;(g) Indebtedness under the Existing Convertible Notes;(h) solely to the extent they constitute
Indebtedness, bank guarantees or similarinstruments issued or created, or related to obligations
or liabilities incurred, in the ordinary course ofbusiness, to which (i) any Loan Party or its
Subsidiaries and (ii) any Lender or any of its Affiliates are aparty;(i) solely to the extent
they constitute Indebtedness, customer deposits and advancepayments received in the ordinary course
of business from customers for goods or services purchased inthe ordinary course of business;(j)
Indebtedness in respect of appeal, bid, performance or surety or similar bonds,workers compensation
claims, self-insurance obligations and bankers acceptances issued for the accountof Borrower
or any of its Subsidiaries, each incurred in the ordinary course of business, includingguarantees or
obligations of any Borrower or any of its Subsidiaries with respect to letters of creditsupporting
such bid, performance or surety bonds, workers compensation claims, self-insuranceobligations
and bankers acceptances (in each case other than for an obligation for borrowed money);32
(k) Indebtedness incurred by Borrower or any of its Restricted Subsidiariesconstituting reimbursement obligations
with respect to letters of credit or bank guarantees or similarinstruments issued in the ordinary course of
business, including, without limitation, (i) letters of credit orperformance or surety bonds in respect of workers
compensation claims, health, disability or otheremployee benefits (whether current or former) or property,
casualty or liability insurance orself-insurance, or other Indebtedness with respect to reimbursement-type
obligations regarding workerscompensation claims, health, disability or other employee benefits (whether current or
former) orproperty, casualty or liability insurance and (ii) guarantees of Indebtedness incurred by customers
inconnection with the purchase or other acquisition of equipment or supplies in the ordinary course ofbusiness;(l)
unsecured Indebtedness consisting of interest to the extent paid-in-kind (and notin cash or Cash Equivalents) on
intercompany Indebtedness;(m) Indebtedness incurred in the ordinary course of business in respect of creditcards,
credit card processing services, debit cards, stored value cards, commercial cards (including socalled purchase
cards, procurement cards or p cards), or cash management services;(n) guarantees permitted by Section 7.3;(o)
Indebtedness arising from netting services, overdraft protection or the honoringby a bank or other financial
institution of a check, draft or similar instrument drawn against insufficientfunds in the ordinary course of
business(p) Indebtedness of Foreign Subsidiaries of Borrower incurred by any such ForeignSubsidiary to provide for
its working capital needs in an amount not exceeding the greater of (i)$15,000,000 and (ii) 2.5% of Consolidated
Total Assets as of the last day of the most recently ended testperiod, in the aggregate outstanding at any time;(q)
Permitted Receivables Indebtedness;(r) Indebtedness incurred by Borrower or a Restricted Subsidiary as a result
ofleases entered into by Borrower or such Restricted Subsidiary in the ordinary course of business;(s) Indebtedness
of non-Loan Party Subsidiaries (other than Indebtedness owing toany Loan Party) not exceeding the greater
of (i) $15,000,000 and (ii) 2.5% of Consolidated Total Assetsas of the last day of the most recently ended test
period, in the aggregate outstanding at any time;(t) Indebtedness of Borrower or Restricted Subsidiaries not
otherwise permitted bySection 7.7 not exceeding the greater of (i) $40,000,000 and (ii) 5.0% of Consolidated Total
Assets as ofthe last day of the most recently ended test period, in the aggregate outstanding at any time;(u)
any (1) refinancings, refundings, renewals or extensions of any items ofPermitted Indebtedness referenced in
clauses (a) through (f) and clauses (h) through (t) above or clause(v) below, provided that (x) the amount of such
Indebtedness is not increased at the time of suchrefinancing, refunding, renewal or extension except by an amount
equal to all accrued and unpaid interestand premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connectionwith such refinancing and by an amount equal to any existing commitments unutilized
thereunder and thedirect or any contingent obligor with respect thereto is not changed, as a result of or in
connection withsuch refinancing, refunding, renewal or extension and (y) the terms relating to principal
amount,amortization, maturity, collateral (if any) and subordination (if any), and other material terms (other than,33
in the case of Permitted Convertible Indebtedness, the applicable settlement method for
conversion ofsuch Indebtedness) taken as a whole, of any such refinancing, refunding, renewing
or extendingIndebtedness, and of any agreement entered into and of any instrument issued
in connection therewith,are not materially less favorable to the Loan Parties or the
Lenders than the terms of any agreement orinstrument governing the Indebtedness being
refinanced, refunded, renewed or extended or (2)refinancings of Indebtedness under the
Existing Convertible Notes referenced in clause (g) above so longas such refinancing complies
with the terms of Section 7.15; and(v) Permitted Convertible Indebtedness in aggregate
principal amount not exceeding$30,000,000.Permitted Investments shall mean:(a) Investments
(including, without limitation, Subsidiaries) existing on the ClosingDate and shown on
Schedule 7.4;(b) Investments consisting of cash and Cash Equivalents;(c) Investments
consisting of the endorsement of negotiable instruments for depositor collection or similar
transactions in the ordinary course of business;(d) Investments consisting of deposit accounts
in which Agent has a perfectedsecurity interest;(e) Investments accepted in connection
with transfers permitted by Section 7.1(b);(f) [reserved];(g) Investments (i) consisting
of travel advances and employee relocation loans andother employee loans and advances
in the ordinary course of business not to exceed $2,000,000 in theaggregate in any fiscal
year and (ii) loans to employees, officers or directors in an amount not to exceed$2,000,000
in the aggregate at any time outstanding relating to the purchase of Equity Interests
ofBorrower or any of its Restricted Subsidiaries pursuant to stock option and other
compensation plans andbenefit programs or agreements approved by such Persons board of
directors (or equivalent governingbody);(h) Investments (including debt obligations, Equity
Interests or other securities)received in connection with the bankruptcy or reorganization
of customers or suppliers and in settlementof delinquent obligations of, and other
disputes with, customers or suppliers arising in the ordinarycourse of business;(i) Investments
consisting of notes receivable of, or prepaid royalties and othercredit extensions,
to customers and suppliers who are not Affiliates, in the ordinary course of
business;provided that this paragraph (i) shall not apply to Investments of Borrower in any
Subsidiary;(j) Lender-Provided Hedges;(k) Permitted Acquisitions;(l) any Investment in (i)
any Loan Party by any other Loan Party, (ii) any RestrictedSubsidiary (which is not a Loan
Party) by any other Restricted Subsidiary (which is not a Loan Party),(iii) any Subsidiary
(which is not a Loan Party) by any Loan Party; provided that the aggregate amount of34
such Investments under this clause (iii) does not exceed the greater
of (i) $10,000,000 and (ii) 1.5% ofConsolidated Total Assets as of
the last day of the most recently ended test period at any one
timeoutstanding, and (iv) any Loan Party by any Restricted Subsidiary
(which is not a Loan Party);(m) guarantees permitted by Section 7.3;
and(n) other Investments not otherwise permitted by Section 7.4,
so long as (i) no Eventof Default shall exist or would result immediately
before and after giving effect to such Investment, (ii)as of
the most recently ended fiscal quarter for which financial statements
shall have been delivered,calculated on a pro forma basis as if
such Investment had been made on the first day of the relevanttesting
period, neither of the Total Net Leverage Ratio and Secured Net
Leverage Ratio exceed anamount that is 0.25:1.00 below the Total Net
Leverage Ratio and Secured Net Leverage Ratio required atsuch time
under Section 6.8, and (iii) Liquidity is not less than $75,000,000
before and after giving effectto any such Investments.Permitted
Receivables Indebtedness means Indebtedness of Borrower and its
Subsidiariesarising pursuant to (a) that certain Receivables Purchase
Agreement, dated as of December 23, 2020 (asamended, restated, amended
and restated, modified or supplemented and in effect from time
to time), byand between Veeco Process, as the seller, and HSBC, as
the purchaser, and (b) any other receivablesfacility or financing
(including, without limitation, any factoring financing transaction)
that arenon-recourse to Borrower and any Restricted Subsidiary
and otherwise contain customary market terms(as reasonably determined
by Borrower in good faith); provided that the aggregate outstanding
amountof such Indebtedness shall not exceed the greater of (i)
$65,000,000 and (ii) 5.0% of Consolidated TotalAssets as of the last
day of the most recently ended test period at any time.Person shall
mean any individual, sole proprietorship, partnership, corporation,
business trust,joint stock company, trust, unincorporated organization,
association, limited liability company, limitedliability
partnership, institution, public benefit corporation, joint venture,
entity or Governmental Body(whether Federal, state, county, city,
municipal or otherwise, including any instrumentality, division,agency,
body or department thereof).Plan shall mean any employee
benefit plan within the meaning of Section 3(3) of ERISA,maintained
for employees of any Loan Party or any such Plan to which any
Loan Party is required tocontribute on behalf of any of its
employees.Pledged Collateral shall mean the collective reference to the
following: all of such LoanPartys right, title and interest in,
to and under (a)(i) the shares of capital stock and other Equity
Interestsowned by such Loan Party, including those listed opposite the
name of such Loan Party in theInformation Certificate; (ii) any other
Equity Interests obtained in the future by such Loan Party and
(iii)the certificates and other instruments (if any) representing all
such Equity Interests (collectively, thePledged Equity Interests);
provided that the Pledged Equity Interests shall not include any
ExcludedProperty, (b)(i) the debt securities owned by such Loan
Party, including those listed opposite the name ofsuch Loan Party in
the Information Certificate, (ii) any debt securities in the future
issued to or otherwiseacquired by such Loan Party and (iii) the
promissory notes and any other instruments evidencing all suchdebt
securities (collectively, the Pledged Debt Securities); provided
that the Pledged Debt Securitiesshall not include any Excluded
Property; (c) all other property that may be delivered to and held by
theAgent pursuant to the terms of Section 4.2; (d) all payments of
principal or interest, dividends, cash,instruments and other property
from time to time received, receivable or otherwise distributed
in respectof, in exchange for or upon the conversion of, and all
other Proceeds received in respect of, the PledgedEquity Interests
and Pledged Debt Securities; (e) all rights and privileges of such
Loan Party with respectto the securities, instruments and other
property referred to in clauses (a), (b), (c) and (d) above; and (f)35
all Proceeds of any of the foregoing; provided that, in each case, the Pledged Collateral
shall not includeany Excluded Property.Pledged Debt Securities has the meaning specified
in the definition of Pledged Collateral.Pledged Equity Interests has the meaning specified
in the definition of Pledged Collateral.Provision for Taxes shall mean an amount equal
to all Taxes imposed on or measured by netincome, whether federal, state, provincial,
county or local, and whether foreign or domestic, that are paidor payable by any Person in
respect of any period in accordance with GAAP.PTE means a prohibited transaction class
exemption issued by the Department of Labor, as anysuch exemption may be amended from time
to time.Purchasing Lender shall have the meaning set forth in Section 15.3(c).QFC has the
meaning assigned to the term qualified financial contract in, and shall beinterpreted in
accordance with, 12 U.S.C. 5390(c)(8)(D).QFC Credit Support has the meaning specified
therefor in Section 15.20 of this Agreement.Qualified ECP Loan Party means, in respect of
any Swap Obligation, (a) each of Borrower andany Guarantor that has total assets exceeding
$10,000,000 at the time such Swap Obligation is incurred,or (b) such other Person as is
qualified to give a letter of credit or keepwell, support, or otheragreement for purposes
of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.RCRA shall mean the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq., assame may be amended from time
to time.Real Property shall mean all of each Loan Partys right, title and interest in and
to its ownedand leased premises.Receivables shall mean and include as to each Loan Party,
all of such Loan Partys accounts(including, without limitation, all health-care insurance
receivables), contract rights, instruments(including promissory notes and other instruments
evidencing Indebtedness owed to such Loan Party bytheir Affiliates), documents, chattel
paper (whether tangible or electronic), general intangibles relating toaccounts, drafts
and acceptances, and all other forms of obligations owing to such Loan Party arising
outof or in connection with the sale, lease or other disposition of Inventory or the
rendition of services, allguarantees and other security therefor, whether secured or
unsecured, now existing or hereafter created,and whether or not specifically sold or
assigned to Agent hereunder.Recipient means (a) Agent, (b) any Lender and (c) the Issuer, as
applicable.Refinanced Existing Convertible Notes Indebtedness shall have the meaning set forth
inSection 7.15.Register has the meaning specified in Section 15.3(d).Reinvestment shall
mean the acquisition of assets or other investment in the relevant Personsbusiness with
an amount equal to the Net Cash Proceeds of any sale or other disposition of any other36
assets (other than Inventory in the ordinary course of business) or Casualty Event. Reinvest andReinvested
shall have correlative meanings.Reinvestment Deferred Amount shall mean with respect to any
Reinvestment Event, an amountequal to the aggregate Net Cash Proceeds received by any Loan Party in
connection therewith that are notapplied to prepay the Advances or other amounts pursuant to Section 2.14(a)
as a result of the delivery ofa Reinvestment Notice.Reinvestment Event shall mean any sale or other
disposition of assets (other than Inventory inthe ordinary course of business) in respect of which
Borrower has delivered a Reinvestment Notice toAgent.Reinvestment Notice shall mean a written notice
executed by an Authorized Officer ofBorrower stating that no Default or Event of Default has occurred and
is continuing and that the LoanParties (directly or indirectly through a Subsidiary) reasonably intend
and expect to Reinvest all or aspecified portion of an amount equal to the Net Cash Proceeds of a
sale or other disposition of assets(other than Inventory in the ordinary course of business), in each
case, within 365 days of such sale ordisposition (or, if within such 365-day period, the Loan Parties
enter into a binding commitment to soReinvest, and does so Reinvest, such Net Cash Proceeds, within 180 days
following such 365-day periodduring which Borrower so committed to such plan of Reinvestment).Reinvestment
Prepayment Amount shall mean, with respect to any Reinvestment Event, theReinvestment Deferred
Amount relating thereto less any amount actually Reinvested prior to the relevantReinvestment
Prepayment Date.Reinvestment Prepayment Date shall mean with respect to any Reinvestment Event, the
earlierof (a) 365 days after such sale or disposition (or, if within such 365-day period, the Loan Parties
enterinto a binding commitment to so Reinvest, and does so Reinvest, such Net Cash Proceeds, within
180days following such 365-day period during which Borrower so committed to such plan of Reinvestment)and
(b) the date on which Borrower shall have determined not to, or shall have otherwise ceased to,
makeReinvestments with all or any portion of the relevant Reinvestment Deferred Amount.Related Parties
means, with respect to any Person, such Persons Affiliates and the partners,directors, officers,
employees, agents, trustees, administrators, managers, advisors and representatives ofsuch Person and of
such Persons Affiliates.Relevant Governmental Body means the Federal Reserve Board or the Federal
Reserve Bankof New York, or a committee officially endorsed or convened by the Federal Reserve Board or
theFederal Reserve Bank of New York, or any successor thereto.Report shall have the meaning set forth
in Section 9.7.Reportable Event shall mean a reportable event described in Section 4043(c) of ERISA or
theregulations promulgated thereunder, other than events for which the thirty (30) day notice period hasbeen
waived.Required Lenders shall mean Lenders holding a majority of the Commitment Percentages;provided
however, if there are fewer than three (3) Lenders, Required Lenders shall mean all Lenders.Resignation
Effective Date shall mean, collectively, the promissory notes referred to in Section14.3(c).37
Resolution Authority means an EEA Resolution Authority or, with respect to any UKFinancial Institution,
a UK Resolution Authority.Restricted Payment shall mean (i) to declare, pay or make any dividend or
distribution on anyshares of the common stock, preferred stock or other Equity Interests of any Loan Party
(other thandividends or distributions payable in its stock or other Equity Interests or split-ups or
reclassifications ofits stock or other equity interests) or for any Loan Party to apply any of its funds,
property or assets to thepurchase, redemption or other retirement of any common or preferred stock or
other Equity Interests, orof any options to purchase or acquire any such shares of common or preferred
stock or other EquityInterests of any Loan Party, (ii) to repay or prepay any Junior Lien Indebtedness or
SubordinatedIndebtedness, or repurchase, redeem or retire Junior Lien Indebtedness or Subordinated
Indebtedness ofany Loan Party, or (iii) any payment by any Loan Party of any management, consulting or similar
fees toor any Affiliate, whether pursuant to a management agreement or otherwise; provided that payments(whether
in cash or in kind) or deliveries in respect of the First Amendment Convertible Notes(including,
without limitation, interest payments and payments and/or deliveries due upon conversion,settlement or
redemption thereof) shall not constitute Restricted Payments.Restricted Subsidiary shall mean each Subsidiary
of Borrower other than any UnrestrictedSubsidiaries.Revolving Advances shall mean Advances made other
than Swingline Loans and Letters ofCredit, and including, for the avoidance of doubt, any Revolving
Advances made pursuant to Section 2.4.Revolving Commitment shall mean, as to any Lender, its obligation to
make RevolvingAdvances in an aggregate amount not to exceed its Revolving Commitment Percentage.Revolving
Commitment Percentage of any Lender shall mean the percentage set forth belowsuch Lenders under the
applicable heading on Schedule 1.1 to this Agreement under the headingRevolving Commitment Percentage as
same may be adjusted upon any assignment by a Lenderpursuant to Section 15.3.Revolving Credit Note shall
mean, collectively, the promissory notes referred to in Section2.1(a).Revolving Interest Rate shall mean
an interest rate per annum equal to (a) the sum of the BaseRate plus the Applicable Margin, with respect
to Domestic Rate Loans, and (b) the sum of AdjustedTerm SOFR plus the Applicable Margin, with respect
to SOFR Loans.Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related
list ofdesignated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of
theTreasury, the U.S. Department of State or by the United Nations Security Council, the European Unionor
any European Union member state, HerHis Majestys Treasury of the United Kingdom or otherrelevant sanctions
authority, (b) any Person operating, organized or resident in a jurisdiction subject toSanctions, (c) any
Person owned or controlled by any such Person or Persons described in the foregoingclauses (a) or (b),
or (d) any Person that is otherwise the subject of any Sanctions.Sanctions shall have the meaning set forth
in Section 5.23.SEC shall mean the U.S. Securities and Exchange Commission or any successor thereto.38
Secured Net Leverage Ratio means, with respect to the last day of any fiscal period, the ratioof (a)
Consolidated Funded Debt as of such date, minus (i) up to $85,000,000 of unrestricted domesticcash and
Cash Equivalents of the Loan Parties as of such date and (ii) the principal amount of unsecuredIndebtedness
of Borrower and its Restricted Subsidiaries as of such date to (b) Consolidated EBITDA forthe four
(4) consecutive fiscal quarters ending on or immediately prior to such fiscal period.Settlement Date
shall mean the Closing Date and thereafter Tuesday of each week, unless suchday is not a Business Day
in which case it shall be the next succeeding Business Day, and every otherBusiness Day designated by
Agent as a Settlement Date by notice from Agent to each Lender. Agentshall be obligated to designate
a Settlement Date in the event that Borrower requests RevolvingAdvances in excess of the Maximum Swingline
Loan Amount.SOFR means a rate equal to the secured overnight financing rate as administered by the
SOFRAdministrator.SOFR Administrator means the Federal Reserve Bank of New York (or a successoradministrator
of the secured overnight financing rate).SOFR Borrowing means, as to any borrowing of Revolving
Advances, the SOFR Loanscomprising such borrowing of Revolving Advances.SOFR Loan means a Revolving
Advance that bears interest at a rate based on Adjusted TermSOFR, other than pursuant to clause (c) of
the definition of Base Rate.Special Purpose Subsidiary shall mean (i) a direct or indirect Subsidiary
of Borrowerestablished in connection with the incurrence of Permitted Receivables Indebtedness (but
excluding, forthe avoidance of doubt, Veeco Process) and which is organized in a manner (as determined
by Borrowerin good faith) intended to reduce the likelihood that it would be substantively consolidated
with any ofBorrower or any of the Subsidiaries (other than Special Purpose Subsidiaries) in the event
Borrower orany such Subsidiary becomes subject to a proceeding under the Title 11 of the Bankruptcy
Code (or otherinsolvency law) and (ii) any subsidiary of a Special Purpose Subsidiary.Standby Letters of
Credit shall mean all Letters of Credit issued in connection with thisAgreement as a credit enhancement
for certain Indebtedness (other than Indebtedness for borrowedmoney) of Borrower.Stock Pledge Agreement
shall mean a Stock Pledge Agreement, dated as of the Closing Date,pursuant to which each Loan Party
pledges to Agent as Collateral for the Obligations the issued andoutstanding shares of Subsidiary
Stock.Subordinated Indebtedness means (a) with respect to Borrower, any Indebtedness of Borrowerwhich is
by its terms expressly subordinated in right of payment to the Obligations, and (b) with respectto any
Guarantor, any Indebtedness of such Guarantor which is by its terms expressly subordinated inright of
payment to its guarantee of the Obligations, in each case to the written satisfaction of Agent andthe
Required Lenders.Subsidiary shall mean, with respect to any Person, a corporation or other entity of
whoseEquity Interests having ordinary voting power (other than Equity Interests having such power only
byreason of the happening of a contingency) to elect a majority of the directors or managers of such39
corporation or other entity, or other Persons performing similar functions for such entity, are owned,directly
or indirectly, by such Person.Subsidiary Stock shall mean all of the issued and outstanding Equity
Interests of anySubsidiary owned by any Loan Party.Supported QFC has the meaning specified therefor in
Section 15.20 of this Agreement.Swap Obligation means, with respect to any of Borrower or any Guarantor, any
obligation topay or perform under any agreement, contract or transaction that constitutes a swap within the
meaningof Section 1a(47) of the Commodity Exchange Act.Swingline Lender means HSBC, or if HSBC shall resign
as Swingline Lender, another Lenderselected by Agent or the successor Agent and reasonably acceptable to
Required Lenders and Borrower.Swingline Loan means each Advance made by Swingline Lender pursuant to Section
2.1(c).Swingline Note shall mean the promissory note referred to in Section 2.1(c).Taxes means any and all
present or future taxes, levies, imposts, duties, deductions,withholdings (including backup withholding),
assessments, fees or other charges imposed by anyGovernmental Body, including any interest, additions to
tax or penalties applicable thereto.Term shall mean the period commencing on the Closing Date and ending
on the TerminationDate.Term SOFR means:(a) for any calculation with respect to a SOFR Loan, the Term SOFR
Reference Rate for atenor comparable to the applicable Interest Period on the day (such day, the Periodic
Term SOFRDetermination Day) that is two (2) U.S. Government Securities Business Days prior to the first
day ofsuch Interest Period, as such rate is published by the Term SOFR Administrator; provided, however,
thatif as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFRReference
Rate for the applicable tenor has not been published by the Term SOFR Administrator and aBenchmark
Replacement Date with respect to the Term SOFR Reference Rate has not occurred, thenTerm SOFR will be the Term
SOFR Reference Rate for such tenor as published by the Term SOFRAdministrator on the first preceding U.S.
Government Securities Business Day for which such TermSOFR Reference Rate for such tenor was published by
the Term SOFR Administrator so long as suchfirst preceding U.S. Government Securities Business Day is not
more than three (3) U.S. GovernmentSecurities Business Days prior to such Periodic Term SOFR Determination
Day, and(b) for any calculation with respect to a Domestic Rate Loan on any day, the Term SOFRReference
Rate for a tenor of one month on the day (such day, the Base Rate Term SOFR DeterminationDay) that is two
(2) U.S. Government Securities Business Days prior to such day, as such rate ispublished by the Term SOFR
Administrator; provided, however, that if as of 5:00 p.m. (New York Citytime) on any Base Rate Term SOFR
Determination Day the Term SOFR Reference Rate for theapplicable tenor has not been published by the Term
SOFR Administrator and a Benchmark ReplacementDate with respect to the Term SOFR Reference Rate has not
occurred, then Term SOFR will be the TermSOFR Reference Rate for such tenor as published by the Term SOFR
Administrator on the firstpreceding U.S. Government Securities Business Day for which such Term SOFR Reference
Rate forsuch tenor was published by the Term SOFR Administrator so long as such first preceding U.S.40
410.10%Interest PeriodThree monthsPercentage0.15%Government Securities Business Day is
not more than three (3) U.S. Government Securities BusinessDays prior to such Base Rate
Term SOFR Determination Day;provided, further, that if Term SOFR determined as provided
above (including pursuant to the provisounder clause (a) or (b) above) shall ever be less
than the Floor, then Term SOFR shall be deemed to bethe Floor. As of the Closing Date,
the Floor shall be deemed to be zero for purposes of this Agreement.Term SOFR Adjustment
means, for any calculation with respect to a SOFR Loan, a percentageper annum as set forth
below for the applicable Interest Period therefor:Six months 0.25%One monthTerm SOFR
Administrator means CME Group Benchmark Administration Limited (CBA) (ora successor administrator
of the Term SOFR Reference Rate selected by Agent in its reasonablediscretion).Term
SOFR Reference Rate means the forward-looking term rate based on SOFR.Termination Date
means the date that is the earliest of (a) December 16, 2026, (b) theacceleration of all
Obligations pursuant to the terms of this Agreement, and (c) the date on which thisAgreement
shall be terminated in accordance with the provisions hereof or by operation of
law.Termination Event shall mean (i) a Reportable Event with respect to any Plan orMultiemployer
Plan; (ii) the withdrawal of any Loan Party or any member of the Controlled Group froma
Pension Benefit Plan or Multiemployer Plan during a plan year in which such entity was a
substantialemployer as defined in Section 4001(a)(2) of ERISA; (iii) the providing of
notice of intent to terminatea Pension Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) theinstitution by the PBGC of proceedings to terminate a
Pension Benefit Plan or Multiemployer Plan; (v)any event or condition (a) which might
reasonably be expected to constitute grounds under Section 4042of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Benefit Planor Multiemployer
Plan, or (b) that may reasonably be expected to result in termination of aMultiemployer
Plan pursuant to Section 4041A of ERISA; or (vi) the partial or complete withdrawalwithin
the meaning of Sections 4203 and 4205 of ERISA, of any Loan Party or any member of
theControlled Group from a Multiemployer Plan.Third Amendment means that certain Third
Amendment to Loan and SecurityAgreement, dated as of the Third Amendment Effective Date, by
and among the Loan Partiesparty thereto, Agent and the Lenders party thereto.Third Amendment
Effective Date shall have the meaning set forth in the ThirdAmendment.Third Amendment
Effective Date Fee Letter shall mean the Fee Letter dated as of as ofthe Third Amendment
Effective Date between Borrower and HSBC (in its capacities as Agent anda Lender).
Total Net Leverage Ratio means, with respect to the last day of any fiscal period,
the ratio of(a) Consolidated Funded Debt as of such date, minus up to $85,000,000 of
unrestricted domestic cash,Cash Equivalents of the Loan Parties as of such date, to (b)
Consolidated EBITDA for the four (4)consecutive fiscal quarters ending on or immediately
prior to such fiscal period.Transactions means the transactions contemplated by this
Agreement.U.S. Government Securities Business Day means any day except for (a) a Saturday,
(b) aSunday or (c) a day on which the Securities Industry and Financial Markets
Association recommends thatthe fixed income departments of its members be closed for the
entire day for purposes of trading inUnited States government securities.U.S. Person
means any Person that is a United States Person as defined in Section7701(a)(30) of the
Code.U.S. Special Resolution Regimes has the meaning specified therefor in Section 15.20
of thisAgreement.UCC shall have the meaning set forth in Section 1.3.UK Bribery Act
shall have the meaning set forth in Section 5.23.UK Financial Institution means any BRRD
Undertaking (as such term is defined under thePRA Rulebook (as amended from time to
time) promulgated by the United Kingdom PrudentialRegulation Authority) or any person
falling within IFPRU 11.6 of the FCA Handbook (as amended fromtime to time) promulgated by
the United Kingdom Financial Conduct Authority, which includes certaincredit
institutions and investment firms, and certain affiliates of such credit institutions or
investmentfirms.UK Resolution Authority means the Bank of England or any other public
administrativeauthority having responsibility for the resolution of any UK Financial
Institution.Unadjusted Benchmark Replacement means the applicable Benchmark Replacement
excludingthe related Benchmark Replacement Adjustment.United States or U.S. means the
United States of America.Unrestricted Subsidiary shall mean (i) on the Closing Date, each
Subsidiary of Borrower listedon Schedule 1.3 and (ii) any other Subsidiary of Borrower
designated by the board of directors ofBorrower as an Unrestricted Subsidiary pursuant
to Section 6.10 subsequent to the Closing Date, in eachcase, except to the extent
redesignated as a Restricted Subsidiary in accordance with such Section 6.10.USA PATRIOT Act
shall mean the Uniting and Strengthening America by ProvidingAppropriate Tools Required
To Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as thesame has been,
or shall hereafter be renewed, extended, amended or replaced from time to time.USCO
shall mean the U.S. Copyright Office.USPTO shall mean the U.S. Patent and Trademark
Office.Veeco Process shall mean Veeco Process Equipment Inc., a Delaware corporation.42
Weighted Average Life to Maturity means, when applied to any
Indebtedness at any date, thenumber of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the
amountof each then remaining installment, sinking fund, serial
maturity or other required payments of principal,including payment
at final maturity, in respect thereof, by (ii) the number
of years (calculated to thenearest one-twelfth) that will elapse
between such date and the making of such payment; by (b) the
thenoutstanding principal amount of such Indebtedness.Withholding
Agent means any Loan Party and Agent.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 theBail-In Legislation for the
applicable EEA Member Country, which write-down and conversion
powersare described in the EU Bail-In Legislation Schedule, and (b)
with respect to the United Kingdom, anypowers of the applicable
Resolution Authority under the Bail-In Legislation to cancel,
reduce, modify orchange the form of a liability of any UK Financial
Institution or any contract or instrument under whichthat
liability arises, to convert all or part of that liability into
shares, securities or obligations of thatperson or any other
person, to provide that any such contract or instrument is to
have effect as if a righthad been exercised under it or to suspend
any obligation in respect of that liability or any of the
powersunder that Bail-In Legislation that are related to or
ancillary to any of those powers.1.3. UCC Terms.All terms used
herein and defined in the Uniform Commercial Code as adopted in
the State ofNew York from time to time (the UCC) shall have the
meaning given therein unless otherwise definedherein. Without
limiting the foregoing, the terms accounts, chattel paper,
commercial tort claims,instruments, general intangibles, goods,
payment intangibles, supporting obligations,securities, documents,
deposit accounts, securities accounts, proceeds, software, letter
ofcredit, letter-of-credit rights, inventory, equipment and
fixtures, as and when used in thedescription of Collateral shall
have the meanings given to such terms in Articles 8 or 9 of the
UCC. Tothe extent the definition of any category or type of
collateral is expanded by any amendment,modification or revision
to the UCC, such expanded definition will apply automatically
as of the date ofsuch amendment, modification or revision.1.4.
Certain Matters of Construction.The terms herein, hereof and
hereunder and other words of similar import refer to thisAgreement
as a whole and not to any particular section, paragraph or
subdivision. Each reference to aSection, an Exhibit or a Schedule
shall be deemed to refer to a Section, an Exhibit or a Schedule,
asapplicable, of this Agreement, as modified or supplemented
with the consent of Agent in its solediscretion unless otherwise
specified. Any pronoun used shall be deemed to cover all
genders.Wherever appropriate in the context, terms used herein in
the singular also include the plural and viceversa. All references
to statutes (including the UCC) and related regulations shall
include anyamendments of same and any successor statutes and
regulations. Unless otherwise provided, allreferences to any
instruments or agreements to which Agent is a party, including,
without limitation,references to any of the Loan Documents, shall
include any and all modifications or amendments theretoand any
and all extensions or renewals thereof. For purposes of Sections
3.1, 3.5, 3.6, 3.7, 3.8, 3.10(a),and Articles V, VIII, XI,
XII, XIII, XIV, and XV, the term Lender shall include each Lender
andSwingline Lender. All references herein to the time of day
shall mean the time in New York, New York.A Default or Event of
Default shall be deemed to exist at all times during the period
commencing on thedate that such Default or Event of Default
occurs to the date on which such Default or Event of Default is43
waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period ofcure expressly
provided for in this Agreement; and an Event of Default shall continue or becontinuing until such Event of Default has
been waived in writing by the Required Lenders. Any Lienreferred to in this Agreement or any of the Loan Documents as
having been created in favor of Agent,any agreement entered into by Agent pursuant to this Agreement or any of the
Loan Documents, anypayment made by or to or funds received by Agent pursuant to or as contemplated by this Agreement orany
of the Loan Documents, or any act taken or omitted to be taken by Agent, shall, unless otherwiseexpressly provided,
be created, entered into, made or received, or taken or omitted, for the benefit oraccount of Agent and Lenders.
Wherever the phrase to the best of any Loan Partys knowledge orwords of similar import relating to the knowledge or the
awareness of any Loan Party are used in thisAgreement or Loan Documents, such phrase shall mean and refer to (i) the
actual knowledge of a seniorofficer of such Loan Party or (ii) the knowledge that a senior officer would have obtained
if he hadengaged in good faith and diligent performance of his duties, including the making of such reasonablyspecific
inquiries as may be necessary of the employees or agents of such Loan Party and a good faithattempt to ascertain the
existence or accuracy of the matter to which such phrase relates. All covenantshereunder shall be given independent
effect so that if a particular action or condition is not permitted byany of such covenants, the fact that it would be
permitted by an exception to, or otherwise within thelimitations of, another covenant shall not avoid the occurrence
of a Default if such action is taken orcondition exists. In addition, all representations and warranties hereunder
shall be given independenteffect so that if a particular representation or warranty proves to be incorrect or is
breached, the fact thatanother representation or warranty concerning the same or similar subject matter is correct or is
notbreached will not affect the incorrectness of a breach of a representation or warranty hereunder.1.5. Divisions.For
all purposes under this Agreement and the other Loan Documents, in connection with anydivision or plan of division under
Delaware law (or any comparable event under a different jurisdictionslaws): (a) if any asset, right, obligation or
liability of any Person becomes the asset, right, obligation orliability of a different Person, then it shall be deemed
to have been transferred from the original Person tothe subsequent Person, and (b) if any new Person comes into
existence, such new Person shall be deemedto have been organized on the first date of its existence by the holders of its
Equity Interests at such time.II. ADVANCES, PAYMENTS.2.1. Revolving Advances and Swingline Loans.(a) Revolving Advances.
Subject to the terms and conditions set forth in thisAgreement (including, without limitation, Section 2.1(b) and
Article VIII), each Lender, severally andnot jointly, will make Revolving Advances to Borrower during the Term in
aggregate amountsoutstanding at any time not to exceed such Lenders Commitment Percentage of the Maximum RevolvingAdvance
Amount minus, in either case, the sum of (1) the outstanding amount of the RevolvingAdvances and Swingline Loans plus
(2) the Letter of Credit Reserve.The Revolving Advances may be evidenced by one or more secured promissory notes (each,
aRevolving Credit Note) executed by Borrower in favor of each Lender in the amount of such LendersCommitment Percentage
of the Revolving Advances and shall be in substantially in the form attachedhereto as Exhibit C.(b) [Reserved].44
(c) Swingline Loans. (i) Subject to the requirements of this clause
(c), so long asthe aggregate amount of outstanding Swingline Loans plus
the amount of the requested Swingline Loandoes not exceed the Maximum
Swingline Loan Amount, Borrower may request that Swingline Lendermake
available to Borrower by transfer of immediately available funds a
Swingline Loan. The SwinglineLoans shall be advanced by Agent (subject
to the requirements of Section 8.2 hereof) as Domestic RateLoans and
shall not exceed in the aggregate at any time outstanding the Maximum
Swingline LoanAmount. In the event that on any Business Day, Borrower
desires that all or any portion of theoutstanding Swingline Loans should
be reduced in whole or in part, Borrower shall promptly notifyAgent
to that effect and indicate the portion of the Swingline Loans to be
reduced. Borrower herebyagrees that it shall notify Agent to reduce the
outstanding Swingline Loans to $0 at least once every weekand, in any
event, at any time that the aggregate outstanding principal amount of
Swingline Loan equalsthe Maximum Swingline Loan Amount. Swingline Lender
shall notify Agent to reduce the outstandingSwingline Loans to $0 by
conversion of such Swingline Loans to Revolving Advances as described
insub-clause (ii) of this Section 2.1(c), at least once each week if
Borrower fails to do so. Agent agrees topromptly transmit to Lenders the
information contained in each notice received by Agent from Borroweror
Swingline Lender and shall concurrently notify Lenders of each Lenders
Commitment Percentage ofthe obligation to make a Revolving Advance to
repay the Swingline Loan (or portion thereof). In noevent shall the
aggregate outstanding Advances exceed the Maximum Revolving Advance
Amount.(ii) Each of the Lenders hereby unconditionally and irrevocably
agrees tofund to Agent for the benefit of Swingline Lender, in lawful
money of the United States and in same dayfunds, not later than 1:00 p.m.
(New York time) on the Settlement Date, such Lenders CommitmentPercentage
of a Revolving Advance (which Revolving Advance shall be a Domestic
Rate Loan and shallbe deemed to be requested by Borrower) in the
principal amount of such portion of the Swingline Loanswhich is required
to be paid to Swingline Lender under this Section 2.1(c) (regardless of
whether theconditions precedent thereto set forth in Article VIII are
then satisfied and whether or not Borrower hasprovided a Notice of
Borrowing under Section 2.2 and whether or not any Default or Event of
Defaultexists or all or any of the Advances have been accelerated, but
subject to the other provisions of thisSection 2.1(c)). The proceeds
of any such Revolving Advance shall be immediately paid over to Agentfor
the benefit of Swingline Lender for application to the Swingline
Loan.(iii) In the event that an Event of Default shall occur and either
(i) such Eventof Default is of the type described in Section 10.7 or
10.8 or (ii) no further Revolving Advances are beingmade under this
Agreement, so long as any such Event of Default is continuing, then, each
of the Lenders(other than Swingline Lender) shall be deemed to have
irrevocably, unconditionally and immediatelypurchased a participation
from Swingline Lender of such Lenders Commitment Percentage of theSwingline
Loan outstanding as of the date of the occurrence of such Event
of Default. Each Lender shalleffect such purchase by making available an
amount equal to its Commitment Percentage of theoutstanding Swingline
Loan on the date of such purchase in Dollars in immediately available
funds toAgent for the benefit of Swingline Lender. In the event any
Lender fails to make available to SwinglineLender when due the amount
of such Lenders participation in the Swingline Loan (as calculated
above),Swingline Lender shall be entitled to recover such amount on
demand from such Lender together withinterest at the Federal Funds Rate.
Each such purchase by a Lender shall be made without recourse toSwingline
Lender, without representation or warranty of any kind, and shall
be effected and evidencedpursuant to documents reasonably acceptable
to Swingline Lender. The Swingline Loans shall beevidenced by one or
more promissory notes substantially in the form of Exhibit D. The
obligations of theLenders under this Section 2.1(c) shall be absolute,
irrevocable and unconditional, shall be made underall circumstances and
shall not be affected, reduced or impaired for any reason whatsoever.45
2.2. Procedure for Borrowing.(a) Borrower may notify by delivery of
a Notice of Borrowing to Agent prior to11:00 a.m. (New York time)
on a Business Day of Borrowers request to incur, on that day, or
in thealternative, on the immediately succeeding Business Day
thereafter (as specified in the Notice ofBorrowing), a Revolving Advance
hereunder. Any amount required to be paid as interest hereunder,
oras fees or other charges under this Agreement or any other
agreement with Agent, any Lender and/or theIssuer, or with respect
to any other Obligation, which shall become due, if not otherwise
paid when due,shall be deemed a request for a Revolving Advance to
be maintained as a Domestic Rate Loan as of thedate such payment
is due, in the amount required to pay in full such interest, fee,
charge or Obligationunder this Agreement, or any other agreement
with Agent, any Lender and/or the Issuer and such requestshall be
irrevocable.(b) Notwithstanding the provisions of subsection (a)
above, in the event Borrowerdesires to obtain a SOFR Loan, Borrower
shall deliver a Notice of Borrowing to Agent by no later than11:00
a.m. (New York time) on the day which is three (3) U.S. Government
Securities Business Daysprior to the date such SOFR Loan is to be
borrowed, specifying (i) the date of the proposed borrowing(which
shall be a Business Day), (ii) the type of borrowing and the
amount on the date of such RevolvingAdvance to be borrowed, which
amount shall be in a minimum amount of $5,000,000 and in integralmultiples
of $500,000 in excess thereof, and (iii) the duration of
the first Interest Period therefor. InterestPeriods for SOFR Loans
consisting of Revolving Advances shall be for one, three or six
months. NoSOFR Loan shall be made available to Borrower during
the continuance of a Default or an Event ofDefault. After giving
effect to each such borrowing, there shall not be outstanding more
than six (6)SOFR Loans consisting of Revolving Advances, in the
aggregate at any time. Agent shall provideBorrower with a quote of
the actual interest rate available for the SOFR Loan requested by
Borrower,which quote shall be given on the day after such SOFR Loan
is requested and such quote shall beeffective from the day provided
by Agent until two (2) Business Days thereafter.(c) Subject to the
definition of Interest Period, each Interest Period of a SOFRLoan
shall commence on the date such SOFR Loan is made and shall end on
such date as Borrower mayelect as set forth in subsection (b)(iii)
above.(d) Borrower shall elect the initial Interest Period
applicable to a SOFR Loan by itsNotice of Borrowing given to Agent
pursuant to Section 2.2(b) or by its Notice of Conversion given
toAgent pursuant to Section 2.2(e) as the case may be. Borrower
shall elect the duration of eachsucceeding Interest Period by giving
irrevocable written notice to Agent of such duration not less
thanthree (3) U.S. Government Securities Business Days prior to the
last day of the then current InterestPeriod applicable to such
SOFR Loan. If Agent does not receive timely notice of the Interest
Periodelected by Borrower, Borrower shall be deemed to have elected
to convert to a Domestic Rate Loansubject to Section 2.2(e).(e)
Provided that no Event of Default shall have occurred and be
continuing,Borrower may, on the last Business Day of the then current
Interest Period applicable to any outstandingSOFR Loan, or on any
Business Day with respect to Domestic Rate Loans, convert any such
loan into aloan of another type in the same aggregate principal
amount; provided that any conversion of a SOFRLoan shall be made
only on the last Business Day of the then current Interest Period
applicable to suchSOFR Loan. If Borrower desires to convert a loan,
Borrower shall give Agent a Notice of Conversion byno later than
11:00 a.m. (New York time) (i) on the day which is three (3) U.S.
Government SecuritiesBusiness Days prior to the date on which such
conversion is to occur with respect to a conversion from aDomestic
Rate Loan to a SOFR Loan, or (ii) on the day which is one (1)
U.S. Government SecuritiesBusiness Day prior to the date on which
such conversion is to occur with respect to a conversion from a46
SOFR Loan to a Domestic Rate Loan, specifying, in each case, the date of such conversion, the loans tobe converted and if the
conversion is from a Domestic Rate Loan to any other type of loan, the durationof the first Interest Period therefor. After
giving effect to each request for a SOFR Loan, there shall notbe outstanding more than six (6) SOFR Loans consisting of Revolving
Advances, in the aggregate.(f) At its option and upon written notice given prior to 11:00 a.m. (New York time)three (3) U.S.
Government Securities Business Days prior to the date of such prepayment, Borrower mayprepay the SOFR Loans in whole at any time
or in part from time to time, without premium or penalty(except amounts which may be owed pursuant to Section 15.5(b)), but
with accrued interest on theprincipal being prepaid to the date of such repayment. Borrower shall specify the date of prepayment
ofRevolving Advances which are SOFR Loans and the amount of such prepayment. In the event that anyprepayment of a SOFR Loan is
required or permitted on a date other than the last Business Day of thethen current Interest Period with respect thereto, Borrower
shall pay any amounts which may be owedpursuant to Section 15.5(b).(g) Notwithstanding any other provision hereof, if any
Applicable Law, treaty,regulation or directive, or any change therein or in the interpretation or application thereof, shall make
itunlawful for any Lender (for purposes of this Section 2.2(g), the term Lender shall include any Lenderand the office or branch
where any Lender or any corporation or bank controlling such Lender makes ormaintains any SOFR Loans) to make or maintain its SOFR
Loans, the obligation of Lenders to makeSOFR Loans hereunder shall forthwith be cancelled and Borrower shall, if any affected
SOFR Loans arethen outstanding, promptly upon request from Agent, either pay all such affected SOFR Loans or convertsuch
affected SOFR Loans into Domestic Rate Loans. In the event that (i) any payment of a SOFR Loanis required, made or permitted on
a date other than the last day of the then current Interest Periodapplicable thereto (including upon demand by Agent or Lenders
), (ii) the conversion of any SOFR Loanother than on the last day of the Interest Period applicable thereto, or (iii) the failure
to convert, continue,borrow or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, then, inany
such event, Borrower shall compensate the Lenders for the loss, cost and expense attributable to suchevent, including any
loss, cost or expense arising from the liquidation or redeployment of funds. Acertificate of the Lenders delivered to Borrower
and setting forth any amount or amounts that the Lendersare entitled to receive pursuant to this paragraph shall be conclusive
absent manifest error. Borrowershall pay the Lenders the amount shown as due on any such certificate upon demand.2.3. Disbursement
of Advance Proceeds.All Advances shall be disbursed from whichever office or other place Agent may designate fromtime to time
and, together with any and all other Obligations of Borrower to Agent or Lenders, shall becharged to Borrowers Account on Agents
books. During the Term, Borrower may use the RevolvingAdvances by borrowing, prepaying and reborrowing, all in accordance with
the terms and conditionshereof. The proceeds of each Revolving Advance requested by Borrower or deemed to have beenrequested
by Borrower under Section 2.2(a) shall, with respect to requested Revolving Advances to theextent Lenders make such Revolving
Advances, be made available to Borrower by the close of businesson the day so requested by Borrower by way of credit to Borrowers
operating account maintained withAgent or such other bank as Borrower may designate following notification to Agent, in
immediatelyavailable federal funds or other immediately available funds or, with respect to Revolving Advancesdeemed to have been
requested by Borrower, be disbursed to Agent to be applied to the outstandingObligations giving rise to such deemed request.47
2.4. Incremental Loans.(a) Revolving Loans. At any time during the Term, provided no Event of Defaulthas occurred and
is continuing or would exist therefrom, and subject to the conditions set forth in clause(d) below, upon notice to the
Agent, Borrower may, from time to time, request one or more increases (butnot more than five (5) increases in the aggregate)
to the Commitments (the Incremental RevolvingCommitment); provided that, in no event shall the aggregate amount of
Incremental RevolvingCommitment exceed (i) prior to the Third Amendment Effective Date, $75,000,000 and (ii) on andafter
the Third Amendment Effective Date, $0. Any Incremental Revolving Commitment shall be inthe amount of at least $5,000,000
(or such lower amount that represents all remaining availabilitypursuant to this Section 2.4(a)) and integral multiples
of $5,000,000 in excess thereof (or such loweramount that represents all remaining availability pursuant to this
Section 2.4(a)).(b) Lender Election to Increase; Prospective Lenders. At the time of sending suchrequest, Borrower (in
consultation with the Agent) shall specify the time period (such period, theElection Period) within which each Lender
is requested to respond (which Election Period shall in noevent be less than ten (10) days from the date of delivery of
such request to the Lenders), and the Agentshall promptly thereafter notify each Lender of Borrowers request for such
Incremental RevolvingCommitment and the Election Period during which each Lender is requested to respond to such
Borrowerrequest; provided that, if such notice indicates that it is conditioned upon the occurrence of a specifiedevent, such
request may be revoked if such event does not occur prior to the requested funding date. NoLender shall be obligated to
participate in any Incremental Revolving Commitment, and each suchLenders determination to participate shall be in such
Lenders sole and absolute discretion. Any Lendernot responding by the end of such Election Period shall be deemed to have
declined to increase itsCommitment. To the extent Lenders (or their Affiliates) do not agree to provide an IncrementalRevolving
Commitment, as applicable, on terms acceptable to Borrower, Borrower may invite anyprospective lender that satisfies
the criteria of being an Eligible Assignee and is reasonably satisfactoryto the Agent to become a Lender pursuant
to a joinder agreement in form and substance satisfactory tothe Agent in connection with the proposed Incremental Revolving
Commitment, as applicable (providedthat the joinder of any such Lender for the purpose of providing all or any portion
of any suchIncremental Revolving Commitment, as applicable, shall not require the consent of any other Lender(including
any other Lender that is joining this Agreement to provide all or part of such IncrementalRevolving Commitment)).(c)
Effective Date and Allocations. If the Commitments are increased in accordancewith this Section 2.4, the Agent and
Borrower shall determine the effective date (the Increase EffectiveDate) and the final allocation of such Incremental
Revolving Commitment. The Agent shall promptlynotify Borrower and the Lenders of the final allocation of such Incremental
Revolving Commitment andthe Increase Effective Date.(d) Each of the following shall be the only conditions precedent
to the making of anIncremental Revolving Commitment:(i) Borrower shall deliver to the Agent a certificate of each Loan
Partydated as of the Increase Effective Date (in sufficient copies for each Lender) signed by an AuthorizedOfficer of
each such Loan Party certifying and attaching the resolutions adopted by such Loan Partyapproving or consenting to such
Incremental Revolving Commitment;(ii) Each of the conditions precedent set forth in Section 8.2 shall besatisfied;48
(iii) The then applicable financial covenants set forth in Section 6.8 hereofshall have been met, immediately after
giving effect to the making of the Incremental RevolvingCommitment on a pro forma basis (treating any Incremental
Revolving Commitment as fully funded);(iv) Borrower shall have delivered to the Agent a certificate certifying as
tocompliance with the requirements of clauses (ii) and (iii) above, together with all reasonably detailedcalculations
evidencing compliance with clause (iii) above;(v) Borrower shall (x) deliver to any Lender providing an increase
in theCommitments hereunder (or any new Lender providing such Commitment) any Notes requested by suchLender in
connection with the making of such increased or new Commitment, and (y) have executed anyamendments to this Agreement
and the other Loan Documents as may be required by the Agent toeffectuate the provisions of this Section 2.4,
including, if applicable, any amendment that may benecessary to ensure and demonstrate that the Liens and
security interests granted by the Loan Documentsare perfected under the UCC or other applicable law to secure the
Obligations in respect of theIncremental Revolving Commitment;(vi) Borrower shall prepay any Revolving Advances
outstanding on theIncrease Effective Date (and pay any additional amounts required pursuant to Section 2.2(f)) to the
extentnecessary to keep the outstanding Revolving Advances ratable with any revised CommitmentPercentages resulting
from any non-ratable increase in the Commitments undertaken pursuant to thisSection 2.4.(e) Distribution of Revised
Commitments Schedule. The Agent shall promptlydistribute to the parties an amended Schedule 1.1 (which shall be deemed
incorporated into thisAgreement), to reflect any such changes in the Commitments of the existing Lenders, or the
addition ofany new Lenders and their Commitment amounts, and the respective Commitment Percentages resultingtherefrom.(f)
Conflicting Provisions. This Section shall supersede any provisions inSections 2.13 or 15.2 to the contrary.(g)
Treatment. The Incremental Revolving Commitments and any additionalRevolving Advances made available pursuant to
any such Incremental Revolving Commitment shall betreated on the same terms (including with respect to pricing
and maturity date, but excluding anycommitment, arrangement, upfront or similar fees, which shall be determined by
Borrower and theLenders providing such Incremental Revolving Commitments) as, and made pursuant to the samedocumentation
as is applicable to, the original Revolving Commitment and the original revolving facility,and shall be entitled
to all the benefits afforded by, this Agreement and the other Loan Documents, andshall, without limiting
the foregoing, benefit equally and ratably from any guarantees and the securityinterests created by the Loan Documents
and will be secured on a pari passu basis by the same Collateral.Borrower and the other Loan Parties shall take
any actions reasonably required by the Agent to ensureand demonstrate that the Liens and security interests granted
by the Loan Documents continue to beperfected under the UCC or otherwise after giving effect to the establishment
of any such newIncremental Revolving Commitment and additional Revolving Advances.(h) Effect of Increase. Upon
the increase in the Maximum Revolving AdvanceAmount under this Section 2.4, all references in this Agreement and
in any other Loan Document (i) tothe Maximum Revolving Advance Amount of any Lender shall be deemed to include any
increase insuch Lenders Revolving Commitment pursuant to this Section 2.4, and (ii) to the Maximum Revolving49
Advance Amount shall be deemed to include the increase in the Maximum Revolving Advance Amountmade pursuant
to this Section 2.4.2.5. Maximum Advances and Letters of Credit.The aggregate balance of Revolving
Advances outstanding plus the Letter of Credit Reserve plusthe aggregate principal amount of Swingline
Loans outstanding at any time shall not exceed theMaximum Revolving Advance Amount.2.6. Repayment of
Advances.(a) The Revolving Advances shall be due and payable in full in cash on theTermination Date subject
to earlier prepayment as herein provided. The Swingline Loans shall be dueand payable in accordance
with Section 2.1(c), subject to earlier prepayment as herein provided.(b) [Reserved].(c) Borrower recognizes
that the amounts evidenced by checks, notes, drafts or anyother items of payment relating to and/or
proceeds of Collateral may not be collectible by Agent on thedate received. In consideration of Agents
agreement to conditionally credit Borrowers Account as ofthe Business Day on which Agent receives those items
of payment in immediately available funds, Agentagrees that, in computing the charges under this Agreement,
all items of payment shall be deemed appliedby Agent on account of the Obligations on the Business
Day (i) Agent receives such payments via wiretransfer or electronic depository check or (ii) in the case
of payments received by Agent in any otherform, such payment constitutes good funds in Agents account.
Agent is not, however, required to creditBorrowers Account for the amount of any item of payment which
is unsatisfactory to Agent and Agentmay charge Borrowers Account for the amount of any item of payment
which is returned to Lenderunpaid. All repayments of Revolving Advances shall be applied first, to any
outstanding SwinglineLoans, second, to any Revolving Advances maintained as Domestic Rate Loans, and
third, to any SOFRLoans (subject to Section 2.2(f) hereof).(d) All payments of principal, interest and
other amounts payable hereunder, orunder any of the Loan Documents shall be made to Agent at the Payment
Office not later than 1:00 p.m.(New York time) on the due date therefor in lawful money of the United
States of America in federalfunds or other funds immediately available to Agent. Agent shall have the
right to effectuate payment onany and all Obligations due and owing hereunder by charging Borrowers Account
or by makingRevolving Advances maintained as a Domestic Rate Loan as provided in Section 2.2 in the
amount of allsuch Obligations due and owing. In the event Agent charges Borrowers Account or makes any
suchRevolving Advances, the statement of account required to be delivered to Borrower under Section 2.8shall
reflect all such charges or Revolving Advances which occurred in the prior month.(e) Borrower shall pay
principal, interest, and all other amounts payable hereunder,or under any related agreement, without
any deduction whatsoever, including, but not limited to, anydeduction for any setoff or counterclaim.2.7.
Repayment of Excess Revolving Advances.The aggregate balance of Revolving Advances outstanding at any
time in excess of themaximum amount of Revolving Advances permitted hereunder shall be immediately due
andpayable without the necessity of any demand, at the Payment Office, whether or not a Default or50
Event of Default has occurred, together with any amounts which may be due under Section15.5(b) if a SOFR Loan is required to
be prepaid as a consequence of this section.2.8. Statement of Account.Agent shall maintain, in accordance with its customary
procedures, a loan account (theBorrowers Account) in the name of Borrower in which shall be recorded the date and amount of
eachAdvance made by Lenders and the date and amount of each payment in respect thereof; provided,however, the failure by Agent
to record the date and amount of any Advance shall not adversely affectAgent or any Lender. Each month, Agent shall send to
Borrower a statement showing the accounting forthe Advances made, payments made or credited in respect thereof, and other
transactions betweenLenders and Borrower during such month. The monthly statements shall be deemed correct and bindingupon
Borrower in the absence of manifest error and shall constitute an account stated between Lendersand Borrower unless Agent receives
a written statement of Borrowers specific exceptions thereto withinthirty (30) days after such statement is received by Borrower.
The records of Agent with respect toBorrowers Account shall be conclusive evidence absent manifest error of the amounts
of Advances andother charges thereto and of payments applicable thereto.2.9. Letters of Credit.Subject to the terms and conditions
hereof, Agent shall issue or cause the issuance of StandbyLetters of Credit (collectively, Letters of Credit) by Issuer
on behalf of Borrower (or, subject toSection 2.11(e), on behalf of a Guarantor) provided, however, that Agent will not be
required to issue orcause to be issued any Letters of Credit to the extent that the Maximum Undrawn Amount of such Lettersof
Credit would then cause the sum of (i) the outstanding Revolving Advances and Swingline Loans plus(ii) the Letter of Credit
Reserve (after giving effect to such issuance or creation) to exceed the MaximumRevolving Advance Amount; and provided further,
that, notwithstanding anything in this Agreement tothe contrary, Issuer shall have the right not to issue a Letter of Credit if
the issuance of such Letter ofCredit would violate one or more policies of Issuer applicable to letters of credit generally.
TheMaximum Undrawn Amount of outstanding Letters of Credit shall not exceed $15,000,000 in theaggregate at any time. All
disbursements or payments related to Letters of Credit shall be deemed to beDomestic Rate Loans consisting of Revolving Advances
and shall bear interest at the Revolving InterestRate for Domestic Rate Loans; Letters of Credit that have not been drawn upon
shall not bear interest.2.10. Issuance of Letters of Credit.(a) Borrower may request Agent to issue or cause the issuance
of a Letter of Creditby delivering to Agent at the Payment Office, Issuers standard form of letter of credit and securityagreement
and standard form of letter of credit application (collectively, the Letter of CreditApplication) and any draft if
applicable, completed to the satisfaction of Agent; and such othercertificates, documents and other papers and information as
Agent or Issuer may reasonably request.Agent shall use its best efforts to cause all Letters of Credit requested by Borrower
and approved byAgent in accordance with the terms of this Agreement to be issued no later than three (3) Business Daysafter
the day so requested by Borrower.(b) Each Letter of Credit shall, among other things, (i) provide for the payment ofsight
drafts or acceptances of issuance drafts when presented for honor thereunder in accordance with theterms thereof and when
accompanied by the documents described therein and (ii) have an expiry date notlater than twelve (12) months after such Letter of
Credits date of issuance. With respect to clause (ii)above, in no event shall any Letters of Credit issued hereunder have an
expiry date later than theTermination Date unless Borrower provides cash collateral equal to not less than one hundred five51
percent (105%) of the face amount thereof to be held by Agent pursuant
to a cash collateral agreement inform and substance satisfactory to
Agent. All Letters of Credit shall be subject to the laws or rulesdesignated
in such Letter of Credit, or if no laws or rules are designated,
the International StandbyPractices (ISP98 International Chamber of
Commerce Publication Number 590) (the ISP98 Rules)and, as to matters
not governed by the ISP98 Rules, the laws of the State of New York and
applicableUnited States Federal law. If, at Borrowers request, the
Letter of Credit expressly chooses a letter ofcredit governing rule
that is not the ISP98 Rules or a state or country law other than New
York state lawand United States Federal law or is silent with respect
to the choice of the ISP98 Rules or a governinglaw, neither Agent nor
Issuer shall be liable for any payment, cost, expense or loss resulting
from anyaction or inaction taken by Agent or Issuer if such action or
inaction is or would be justified under theISP98 Rules, New York law,
applicable United States Federal law or the law governing the Letter
ofCredit. Borrower agrees that for matters not addressed by the ISP98
Rules, the Letter of Credit shall besubject to and governed by the
laws of the State of New York and applicable United States Federal
laws.If, at Borrowers request, the Letter of Credit expressly chooses a
state or country law other than NewYork state law and United States
Federal law or is silent with respect to the choice of the ISP98 Rules
ora governing law, Issuer shall not be liable for any payment, cost,
expense or loss resulting from anyaction or inaction taken by Issuer if
such action or inaction is or would be justified under the ISP98Rules,
New York law, applicable United States Federal law or the law
governing the Letter of Credit.(c) Agent shall use its reasonable efforts
to notify Lenders of the request byBorrower for a Letter of Credit
hereunder.2.11. Requirements for Issuance of Letters of Credit.(a)
In connection with the issuance of any Letter of Credit, Borrower
shallindemnify, save and hold Agent, each Lender and the Issuer harmless
from any loss, cost, expense orliability, including, without limitation,
payments made by Agent, any Lender or the Issuer and expensesand, subject
to Section 15.5(c), reasonable attorneys fees incurred by Agent,
any Lender or the Issuerarising out of, or in connection with, any
Letter of Credit to be issued or created for Borrower. Borrowershall be
bound by Agents or Issuers regulations and good faith interpretations
of any Letter of Creditissued or created for Borrowers Account,
although this interpretation may be different from its own;and, neither
Agent, nor any Lender, nor the Issuer nor any of their correspondents
shall be liable for anyerror, negligence, or mistakes, whether of omission
or commission, in following Borrowers instructionsor those contained
in any Letter of Credit or of any modifications, amendments or
supplements thereto orin issuing or paying any Letter of Credit except
for Agents, any Lenders, the Issuers or suchcorrespondents willful
misconduct or gross negligence (as determined by a court of
competentjurisdiction in a final and non-appealable judgment).(b) Borrower
shall authorize and direct the Issuer of a Letter of Credit to deliver
toAgent all related payment/acceptance advices, to deliver to Agent all
instruments, documents, and otherwritings and property received by
Issuer pursuant to the Letter of Credit and to accept and rely uponAgents
instructions and agreements with respect to all matters arising
in connection with the Letter ofCredit or the application therefor.
With respect to documents presented which appear on their face to bein
substantial compliance with the terms of a Letter of Credit, Issuer
may, in its sole discretion, eitheraccept and make payment upon such
documents without responsibility for further investigation,regardless
of any notice or information to the contrary, or refuse to accept and
make payment upon suchdocuments if such documents are not in strict
compliance with the terms of such Letter of Credit.(c) In connection
with all Letters of Credit issued or caused to be issued by Agentunder
this Agreement, Borrower hereby appoints Agent, or its designee, as
its attorney, with full powerand authority: (i) to sign and/or endorse
Borrowers name upon any warehouse or other receipts, letter of52
credit applications and acceptances; (ii) to sign Borrowers name on
bills of lading; and (iii) to completein Borrowers name or Agents, or
in the name of Agents designee, any order, sale or transaction,
obtainthe necessary documents in connection therewith, and collect the
proceeds thereof. None of Agent,Issuer nor any of their respective
attorneys will be liable for any acts or omissions nor for any error
ofjudgment or mistakes of fact or law, except for Agents, Issuers
or their respective attorneys willfulmisconduct or gross negligence
(as determined by a court of competent jurisdiction in a final
andnon-appealable judgment). This power, being coupled with an interest,
is irrevocable as long as anyLetters of Credit remain outstanding.(d)
Each Lender shall to the extent of the amount equal to the product
of suchLenders Commitment Percentage times the aggregate amount of
all unreimbursed reimbursementobligations arising from disbursements
made or obligations incurred with respect to the Letters of Creditbe
deemed to have irrevocably purchased an undivided participation
in (i) each such unreimbursedreimbursement obligation, and (ii) each
Revolving Advance made as a consequence of the issuance of aLetter
of Credit and all disbursements thereunder, in each case in an amount
equal to such Lendersapplicable Commitment Percentage times the
outstanding amount of the Letters of Credit anddisbursements thereunder.
In the event that at the time a disbursement is made the unpaid
balance ofRevolving Advances exceeds or would exceed, with the making
of such disbursement, the amountpermitted under Section 2.1(a), and
such disbursement is not reimbursed by Borrower within one (1)Business
Day, Agent shall promptly notify each Lender and upon Agents demand
each Lender shall payto Agent such Lenders proportionate share of such
unreimbursed disbursement together with suchLenders proportionate
share of Agents unreimbursed costs and expenses relating to such
unreimburseddisbursement. Upon receipt by Agent of a repayment from
Borrower of any amount disbursed by Agentfor which Agent had already
been reimbursed by Lenders, Agent shall deliver to each Lender
thatLenders pro rata share of such repayment. Each Lenders participation
commitment shall continue untilthe last to occur of any of the
following events: (A) Issuer ceases to be obligated to issue or cause
to beissued Letters of Credit hereunder; (B) no Letters of Credit
issued hereunder remain outstanding anduncancelled or (C) all Persons
(other than any Loan Party) have been fully reimbursed for all
paymentsmade under or relating to Letters of Credit.(e) Notwithstanding
that a Letter of Credit issued or outstanding hereunder is insupport
of any obligations of, or is for the account of, a Guarantor, or
states that a Guarantor is theaccount party, applicant, customer,
instructing party or the like of or for such Letter of Credit,and
without derogating from any rights of the Issuer (whether arising by
contract, at law, in equity orotherwise) against such Guarantor in
respect of such Letter of Credit, Borrower shall be obligated as
aprimary obligor to reimburse the Issuer hereunder for any and all
drawings under such Letter of Creditand irrevocably waives any defenses
that might otherwise be available to it as a guarantor or surety
ofobligations of such Guarantor. Borrower hereby acknowledges that the
issuance of Letters of Credit forthe account of Guarantors inures to the
benefit of Borrower, and that Borrowers business derivessubstantial
benefits from the businesses of such Guarantors. To the extent that
any Letter of Credit isissued for the account of any Guarantor,
Borrower agrees that (i) Borrower shall be responsible for theobligations
in respect of such Letter of Credit under this Agreement and
any application orreimbursement agreement and (ii) Borrower shall
have sole right to give instructions and makeagreements with respect
to this Agreement and the Letter of Credit, and the disposition of
documentsrelated thereto.2.12. Additional Payments.Any sums expended
by Agent or any Lender due to any Loan Partys failure to perform
orcomply with its obligations under this Agreement or any other Loan
Document including, withoutlimitation, any Loan Partys obligations
under Sections 4.2, 4.4, 4.12, 4.13, 4.14 and 6.1, may be charged53
to Borrowers Account as a Revolving Advance maintained as a Domestic Rate Loan and added to theObligations.2.13. Manner
of Borrowing and Payment.(a) Each borrowing of Revolving Advances shall be advanced according to theapplicable Revolving
Commitment Percentages of Lenders.(b) Each payment (including each prepayment) by Borrower on account of theprincipal
of the Revolving Advances, shall be applied to the Revolving Advances pro rata according tothe applicable Revolving
Commitment Percentages of Lenders. Except as expressly provided herein, allpayments (including prepayments) to be made
by Borrower on account of principal, interest and feesshall be made without set-off or counterclaim and shall be made
to Agent on behalf of the Lenders to thePayment Office, in each case on or prior to 1:00 p.m. (New York time), in Dollars
and in immediatelyavailable funds.(c) (i) Notwithstanding anything to the contrary contained in Sections 2.13(a)and
2.13(b), commencing with the first Business Day following the Closing Date, each borrowing ofRevolving Advances shall be
advanced by Agent and each payment by Borrower on account ofRevolving Advances shall be applied first to those Revolving
Advances advanced by Agent. On orbefore 1:00 p.m. (New York time) on each Settlement Date commencing with the first
Settlement Datefollowing the Closing Date, Agent and Lenders shall make certain payments as follows: (I) if theaggregate
amount of new Revolving Advances made by Agent during the preceding week (if any)exceeds the aggregate amount of repayments
applied to outstanding Revolving Advances during suchpreceding week, then each Lender shall provide Agent with funds
in an amount equal to its applicableCommitment Percentage of the difference between (w) such Revolving Advances and (x)
suchrepayments and (II) if the aggregate amount of repayments applied to outstanding Revolving Advancesduring such
week exceeds the aggregate amount of new Revolving Advances made during such week,then Agent shall provide each Lender
with funds in an amount equal to its applicable CommitmentPercentage of the difference between (y) such repayments and
(z) such Revolving Advances.(ii) Each Lender shall be entitled to earn interest at the applicable ContractRate on
outstanding Advances which it has funded.(iii) Promptly following each Settlement Date, Agent shall submit to eachLender a
certificate with respect to payments received and Revolving Advances made during the weekimmediately preceding such Settlement
Date. Such certificate of Agent shall be conclusive in theabsence of manifest error.(d) If any Lender or Participant
(a benefited Lender) shall at any time receive anypayment of all or part of its Advances, or interest thereon, or
receive any Collateral in respect thereof(whether voluntarily or involuntarily or by set-off) in a greater proportion
than any such payment to andCollateral received by any other Lender, if any, in respect of such other Lenders Advances,
or interestthereon, and such greater proportionate payment or receipt of Collateral is not expressly permittedhereunder,
such benefited Lender shall purchase for cash from the other Lenders a participation in suchportion of each such other
Lenders Advances, or shall provide such other Lender with the benefits ofany such Collateral, or the proceeds thereof,
as shall be necessary to cause such benefited Lender to sharethe excess payment or benefits of such Collateral or
proceeds ratably with each of Lenders; provided,however, that if all or any portion of such excess payment or benefits is
thereafter recovered from suchbenefited Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to theextent of such recovery, but without interest. Each Lender so purchasing a portion of another Lenders54
Advances may exercise all rights of payment (including, without limitation, rights of set-off) with respectto such
portion as fully as if such Lender were the direct holder of such portion.(e) Unless Agent shall have been notified by
telephone, confirmed in writing, by anyLender that such Lender will not make the amount which would constitute its applicable
CommitmentPercentage of the Advances available to Agent, Agent may (but shall not be obligated to) assume thatsuch
Lender shall make such amount available to Agent on the next Settlement Date and, in relianceupon such assumption, make
available to Borrower a corresponding amount. Agent will promptly notifyBorrower of its receipt of any such notice from
a Lender. If such amount is made available to Agent on adate after such next Settlement Date, such Lender shall pay to
Agent on demand an amount equal to theproduct of (i) the daily average Federal Funds Rate (computed on the basis of a
year of 360 days) duringsuch period as quoted by Agent, times (ii) such amount, times (iii) the number of days from
andincluding such Settlement Date to the date on which such amount becomes immediately available toAgent. A certificate of
Agent submitted to any Lender with respect to any amounts owing under thisparagraph (e) shall be conclusive, in the
absence of manifest error. If such amount is not in fact madeavailable to Agent by such Lender within three (3) Business
Days after such Settlement Date, Agent shallbe entitled to recover such an amount, with interest thereon at the rate
per annum then applicable to suchRevolving Advances hereunder, on demand from Borrower; provided, however, that Agents
right tosuch recovery shall not prejudice or otherwise adversely affect Borrowers rights (if any) against suchLender.2.14.
Mandatory Prepayments.(a) When Borrower or any Restricted Subsidiary sells or otherwise disposes of anyCollateral,
other than Inventory in the ordinary course of business, or a Casualty Event has occurred,then, unless a Reinvestment
Notice shall be delivered in respect thereof within ten (10) days ofBorrowers or such Loan Partys receipt of proceeds
(including insurance proceeds, awards, orcompensation) of such sale or other disposition or Casualty Event, Borrower shall
repay the Advancesmade to Borrower in an amount equal to the Net Cash Proceeds, such repayments to be made promptlybut
in no event more than one (1) Business Day following receipt of such Net Cash Proceeds, and untilthe date of payment,
such proceeds shall be held in trust for Agent; provided that notwithstanding theforegoing, on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment PrepaymentAmount with respect to the relevant Reinvestment Event shall
be applied toward the prepayment of theAdvances and other amounts as set forth in this Section 2.14(a); and provided
further, that so long as noDefault or Event of Default shall exist or would result therefrom, and such Net Cash Proceeds
of such asale, disposition, or Casualty Event do not exceed $25,000,000 in any single transaction or series ofrelated
sales or dispositions, then no such prepayment shall be required. The foregoing shall not bedeemed to be implied consent
to any such sale otherwise prohibited by the terms and conditions hereof.Such repayments shall be applied to the
Advances in such order as Agent may determine, subject toBorrowers ability to reborrow Revolving Advances in accordance
with the terms hereof.(b) Subject to the provisions of Section 4.11, Agent shall apply the proceeds of anyinsurance
settlements from casualty losses which are received by Agent to the Advances in such order asAgent may determine, subject
to Borrowers ability to reborrow Revolving Advances in accordance withthe terms hereof.(c) [Reserved].(d) [Reserved].55
(e) If any Loan Party receives any proceeds from the issuance or incurrence of anyIndebtedness (other than Permitted
Indebtedness), Borrower shall repay the Advances made to Borrowerin an amount equal to the net proceeds of such issuance or
incurrence (i.e., gross proceeds less thereasonable costs of such issuance or incurrence), such repayments to be made promptly
but in no eventmore than one (1) Business Day following receipt of such net proceeds, and until the date of payment,such
proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consentto any such sale or
issuance otherwise prohibited by the terms and conditions hereof. Such repaymentsshall be applied to the other Advances
in such order as Agent may determine, subject to Borrowersability to reborrow Revolving Advances in accordance with the
terms hereof.2.15. Use of Proceeds.Borrower shall apply the proceeds of Advances to (i) pay fees and expenses relating
to theTransactions, (ii) provide for its working capital needs and reimburse drawings under Letters of Creditand (iii) for
other general corporate purposes.2.16. Defaulting Lender.(a) Notwithstanding anything to the contrary contained herein,
in the event anyLender is a Defaulting Lender, all rights and obligations hereunder of such Lender and of the otherparties
hereto shall be modified to the extent of the express provisions of this Section 2.16 while suchLender is a Defaulting
Lender.(b) Advances shall be incurred pro rata from Lenders (the Non-DefaultingLenders) which are not Defaulting Lenders
based on their respective Commitment Percentages, and noCommitment Percentage of any Lender or any pro rata share of any
Advances required to be advanced byany Lender shall be increased as a result of such Lender being a Defaulting Lender.
Amounts received inrespect of principal of any type of Advances shall be applied to reduce the applicable Advances of
eachLender (other than any Defaulting Lender) pro rata based on the aggregate of the outstanding Advancesof that type of
all Lenders at the time of such application; provided that Agent shall not be obligated totransfer to a Defaulting Lender
any payments received by Agent for the Defaulting Lenders benefit, norshall a Defaulting Lender be entitled to the sharing
of any payments hereunder (including any principal,interest or fees). Amounts payable to a Defaulting Lender shall
instead be paid to or retained by Agent.Agent may hold and, in its discretion, re-lend to Borrower the amount of such
payments received orretained by it for the account of such Defaulting Lender.(c) A Defaulting Lender shall not be entitled to
give instructions to Agent or toapprove, disapprove, consent to or vote on any matters relating to this Agreement and the
other LoanDocuments other than (i) any such amendment, waiver or consent to the extent that it relates to anymatter that
disproportionately affects any Defaulting Lender and (ii) any of the matters governed bySection 15.2(a)(i) through (iii)
that affect such Lender. All amendments, waivers and other modificationsof this Agreement and the other Loan Documents
may be made without regard to a Defaulting Lenderand, for purposes of the definition of Required Lenders, a Defaulting
Lender shall be deemed not to bea Lender and not to have either Advances outstanding or a Commitment Percentage.(d) Other
than as expressly set forth in this Section 2.16, the rights and obligationsof a Defaulting Lender (including the obligation
to indemnify Agent) and the other parties hereto shallremain unchanged. Nothing in this Section 2.16 shall be deemed
to release any Defaulting Lender fromits obligations under this Agreement and the other Loan Documents, shall alter such
obligations, shalloperate as a waiver of any default by such Defaulting Lender hereunder, or shall prejudice any rights56
which Borrower, Agent or any Lender may have against any Defaulting Lender as a result of any defaultby such Defaulting Lender
hereunder.(e) If Borrower, Agent, the Swingline Lender and the Issuer agree in writing that aLender is no longer a Defaulting
Lender, Agent will so notify the parties hereto, whereupon as of theeffective date specified in such notice and subject to any
conditions set forth therein (which may includearrangements with respect to any cash collateral), that Lender will, to the
extent applicable, purchase atpar that portion of outstanding Advances of the other Lenders or take such other actions as Agent
maydetermine to be necessary to cause the Advances and funded and unfunded participations in Letters ofCredit and Swingline
Loans to be held pro rata by the Lenders in accordance with the Commitmentsunder the applicable facility, whereupon such Lender
will cease to be a Defaulting Lender; provided thatno adjustment will be made retroactively with respect to fees accrued
or payments made by or on behalfof Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the
extentotherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender toLender will constitute
a waiver or release of any claim of any party hereunder arising from that Lendershaving been a Defaulting Lender.(f) So long
as any Lender is a Defaulting Lender, (i) the Swingline Lender shall notbe required to fund any Swingline Loans unless it
is satisfied that it will have no Fronting Exposure aftergiving effect to such Swingline Loan and (ii) no Issuer shall be required
to issue, extend, renew orincrease any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after
givingeffect thereto.2.17. Bank Product Obligations and Lender-Provided Hedges. Each Lender or Affiliatethereof providing
Bank Product Obligations for, or having Lender-Provided Hedges with, any Loan Partyshall deliver to the Agent, promptly after
entering into such Bank Product Obligations orLender-Provided Hedges, written notice setting forth the aggregate amount of all
Bank ProductObligations and Lender-Provided Hedges of such Loan Party to such Lender or Affiliate (whethermatured or unmatured,
absolute or contingent). In addition, each such Lender or Affiliate thereof shalldeliver to the Agent, from time to time after
a significant change therein or upon a request therefor, asummary of the amounts due or to become due in respect of such
Bank Product Obligations andLender-Provided Hedges. The most recent information provided to the Agent shall be used indetermining
the amounts to be applied in respect of such Bank Product Obligations and/orLender-Provided Hedges pursuant to Section
11.2 and which tier of the waterfall contained in Section11.2 such Bank Product Obligations and/or Lender-Provided Hedges will
be placed. For the avoidanceof doubt, so long as HSBC or its Affiliate is the Agent, neither HSBC nor any of its Affiliates
providingBank Product Obligations for, or having Lender-Provided Hedges with, any Loan Party or any Subsidiaryor Affiliate of a
Loan Party shall be required to provide any notice described in this Section 2.17 inrespect of such Bank Product Obligations
or Lender-Provided HedgesIII. INTEREST AND FEES.3.1. Interest.Interest on Advances shall be payable to Agent for the benefit of
Lenders in arrears on theapplicable Interest Payment Date. Interest charges shall be computed on the actual principal amount
ofAdvances outstanding during the calendar month at a rate per annum equal to (i) with respect toRevolving Advances, the
applicable Revolving Interest Rate and (ii) with respect to Swingline Loans, theRevolving Interest Rate applicable to Revolving
Advances maintained as Domestic Rate Loans (eachsuch rate, as applicable, the Contract Rate). Whenever, subsequent to the date
of this Agreement, theBase Rate is increased or decreased, the applicable Contract Rate for Domestic Rate Loans shall be57
similarly changed without notice or demand of any kind by an amount
equal to the amount of suchchange in the Base Rate during the time such
change or changes remain in effect. Upon and after theoccurrence and
during the continuance of any (x) Default or Event of Default under
Sections 10.1, 10.7,or 10.8, all overdue Obligations shall bear interest
at the applicable Contract Rate plus two percent(2.0%) per annum
(the Default Rate), and (y) any other Default or Event of Default,
upon the electionof the Agent or the Required Lenders, all Obligations
shall bear interest at the Default Rate.3.2. Letter of Credit Fees;
Cash Collateral.(a) Borrower shall pay (w) to Agent, for the ratable
benefit of Lenders, fees for eachLetter of Credit for the period
from and excluding the date of issuance of same to and including the
dateof expiration or termination, equal to the average daily face
amount of each outstanding Letter of Creditmultiplied by the Letter of
Credit Fee Percentage, the fees under this Section 3.2(a)(w) to be
calculatedon the basis of a 360-day year for the actual number of days
elapsed and to be payable quarterly inarrears on the first day of each
quarter and on the last day of the Term, to Agent for the benefit
of Issuer,(x) any and all customary fees and expenses in connection
with any Letter of Credit, including, withoutlimitation, in connection
with the issuance, amendment or renewal of any such Letter of Credit,
and (y) afee equal to the greater of (i) one-eighth of one percent
(0.125%) of the amount of each draft negotiatedwith respect to any
Letter of Credit upon the payment thereof and (ii) $100 (all of the
foregoing fees, theLetter of Credit and Guarantee Fees). All such
charges shall be deemed earned in full on the datewhen the same are due
and payable hereunder and shall not be subject to rebate or pro-ration
upon thetermination of this Agreement for any reason. Any such
charge in effect at the time of a particulartransaction shall be the
charge for that transaction, notwithstanding any subsequent change in
Issuersprevailing charges for that type of transaction. Upon and after
the occurrence of an Event of Default, andduring the continuation
thereof, Agent may, and at the direction of the Required Lenders
shall, increasethe Letter of Credit and Guarantee Fees by two percent
(2.0%) per annum. All Letter of Credit andGuarantee Fees payable hereunder
shall be deemed earned in full on the date when the same are due
andpayable hereunder and shall not be subject to rebate or pro-ration
upon the termination of this Agreementfor any reason.(b) On demand
from Agent or the Required Lenders at any time following (x) theoccurrence
of an Event of Default (whether or not such Event of Default
is continuing) or (y) anytermination of the Lenders commitment to
make Revolving Advances, Borrower will cause cash to bedeposited and
maintained in an account with Agent, as cash collateral for the
Obligations, in an amountequal to one hundred and five percent (105%) of
the Letter of Credit Reserve, and Borrower herebyirrevocably authorizes
Agent, in its discretion, on Borrowers behalf and in Borrowers
name, to opensuch an account and to make and maintain deposits therein,
or in an account opened by Borrower, in theamounts required to be
made by Borrower, out of the proceeds of Receivables or other Collateral
or outof any other funds of Borrower coming into any Lenders possession
at any time. Agent will invest suchcash collateral (less applicable
reserves) in such short-term money-market items as to which Agent
andBorrower mutually agree and the net return on such investments shall
be credited to such account andconstitute additional cash collateral.
Borrower may not withdraw amounts credited to any such accountexcept
upon payment and performance in full in cash of all Obligations
(other than (A) contingentindemnification obligations as to which
no claim has been asserted and (B) obligations and liabilitiesunder
Lender-Provided Hedges and Bank Product Obligations) and termination
of this Agreement.3.3. Unused Commitment Fee.Borrower shall pay to
Agent, for the ratable benefit of the Lenders, a fee in an amount
equal to(x) the Maximum Revolving Advance Amount minus the sum of (1)
the average daily balance of theRevolving Advances during the immediately
preceding quarter, plus,(2) the average daily face amount of58
the Letter of Credit Reserve during the immediately preceding quarter, multiplied by the applicableCommitment Fee
Percentage. Such fee to be calculated on the basis of a three hundred sixty (360) dayyear for the actual number
of days elapsed and to be payable quarterly in arrears on the first day of eachquarter following the Closing
Date. For the avoidance of doubt, outstanding Swingline Loans shall notbe counted towards or considered usage
of Revolving Advances for purposes of determining the unusedcommitment fee.3.4. Fee LetterLetters. Borrower
shall pay the amounts required to be paid in the Fee Letterand the Third Amendment Effective Date Fee Letter in
the manner and at the times required by theFee Letter and the Third Amendment Effective Date Fee Letter, as
applicable.3.5. Computation of Interest and Fees.Interest and fees hereunder shall be computed on the basis of a
year of 360 days and for theactual number of days elapsed except that, with respect to Advances the rate of
interest on which iscalculated on the basis of the Base Rate, the interest thereon shall be calculated on the basis
of a 365- (or366-, as the case may be) day year for the actual days elapsed. If any payment to be made
hereunderbecomes due and payable on a day other than a Business Day, the due date thereof shall be extended tothe
next succeeding Business Day and interest thereon shall be payable at the applicable Contract Rateduring such
extension; provided that with respect to SOFR Loans, if extending such payment wouldcause the last day of the
applicable Interest Period to be extended into the next calendar month, then thedue date for such payment shall
be the immediately preceding Business Day.3.6. Maximum Charges.In no event whatsoever shall interest and other
charges charged hereunder exceed the highest ratepermissible under any Applicable Law. In the event interest
and other charges as computed hereunderwould otherwise exceed the highest rate permitted under Applicable Law,
such excess amount shall befirst applied to any unpaid principal balance owed by Borrower, and if the then
remaining excess amountis greater than the previously unpaid principal balance, Lenders shall promptly refund such
excessamount to Borrower and the provisions hereof shall be deemed amended to provide for such permissiblerate.3.7.
Increased Costs.In the event that any Applicable Law, treaty or governmental regulation coming into effect
afterthe Closing Date, or any change therein or any change in the interpretation or application thereof after
theClosing Date, or compliance by any Lender (for purposes of this Section 3.7, the term Lender shallinclude
Agent or any Lender and any corporation or bank controlling Agent or any Lender) and the officeor branch where
Agent or any Lender (as so defined) makes or maintains any SOFR Loans with anyrequest or directive (whether
or not having the force of law) from any central bank or otherGovernmental Body arising after the Closing Date,
shall:(a) subject Agent or any Lender to any Tax (other than (i) Indemnified Taxes, (ii)Taxes described in
clauses (b) through (d) of the definition of Excluded Taxes and (iii) ConnectionIncome Taxes) on its loans, loan
principal, letters of credit, commitments, or other obligations, or itsdeposits, reserves, other liabilities
or capital attributable thereto;(b) impose, modify or hold applicable any reserve, special deposit, assessment
orsimilar requirement against assets held by, or deposits in or for the account of, advances or loans by, or59
other credit extended by, any office of Agent or any Lender, including (without limitation) pursuant toRegulation D
of the Board of Governors of the Federal Reserve System; or(c) impose on Agent or any Lender any other condition
with respect to thisAgreement or any other Loan Document;and the result of any of the foregoing is to increase
the cost to Agent or any Lender of making, renewingor maintaining its Advances hereunder by an amount that Agent
or such Lender reasonably deems to bematerial or to reduce the amount of any payment (whether of principal, interest
or otherwise) in respectof any of the Advances by an amount that Agent or such Lender reasonably deems to be
material, then, inany case Borrower shall promptly pay Agent or such Lender, upon its demand, such additional amount
aswill compensate Agent or such Lender for such additional cost or such reduction, as the case may be,provided
that the foregoing shall not apply to increased costs which are reflected in Adjusted TermSOFR. Agent or such Lender
shall certify the amount of such additional cost or reduced amount toBorrower, and such certification shall be
conclusive absent manifest error.3.8. Benchmark Replacement.(a) Benchmark Replacement.(i) Notwithstanding anything
to the contrary herein or in any other LoanDocument, if a Benchmark Transition Event and its related Benchmark
Replacement Date have occurredprior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement
is determined inaccordance with clause (a) of the definition of Benchmark Replacement for such BenchmarkReplacement
Date, such Benchmark Replacement will replace such Benchmark for all purposeshereunder and under any Loan Document
in respect of such Benchmark setting and subsequentBenchmark settings without any amendment to, or further
action or consent of any other party to, thisAgreement or any other Loan Document and the definition of Adjusted Term
SOFR shall be deemedmodified to delete the addition of the Term SOFR Adjustment to Term SOFR for any calculation
and (y)if a Benchmark Replacement is determined in accordance with clause (b) of the definition ofBenchmark Replacement
for such Benchmark Replacement Date, such Benchmark Replacement willreplace such Benchmark for all purposes
hereunder and under any Loan Document in respect of anyBenchmark setting at or after 5:00 p.m. (New York City time)
on the fifth (5th) Business Day after thedate notice of such Benchmark Replacement is provided to the Lenders
without any amendment to, orfurther action or consent of any other party to, this Agreement or any other Loan
Document so long asAgent has not received, by such time, written notice of objection to such Benchmark Replacement
fromLenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, allinterest payments
will be payable on a monthly basis.(ii) No Hedging Agreement shall be deemed to be a Loan Document forpurposes
of this Section 3.8).(b) Benchmark Replacement Conforming Changes. In connection with the use,administration,
adoption or implementation of a Benchmark Replacement, Agent will have the right tomake Conforming Changes from
time to time and, notwithstanding anything to the contrary herein or inany other Loan Document, any amendments
implementing such Conforming Changes will becomeeffective without any further action or consent of any other party
to this Agreement or any other LoanDocument.(c) Notices; Standards for Decisions and Determinations. Agent will
promptlynotify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii)60
the effectiveness of any Conforming Changes in connection with the use,
administration, adoption orimplementation of a Benchmark Replacement.
Agent will promptly notify the Borrower of the removalor reinstatement
of any tenor of a Benchmark pursuant to Section 3.8(d). Any
determination, decision orelection that may be made by Agent or, if
applicable, any Lender (or group of Lenders) pursuant to thisSection 3.8,
including any determination with respect to a tenor, rate or adjustment
or of the occurrenceor non-occurrence of an event, circumstance or date
and any decision to take or refrain from taking anyaction or any
selection, will be conclusive and binding absent manifest error and may be
made in its ortheir sole discretion and without consent from any other
party to this Agreement or any other LoanDocument, except, in each
case, as expressly required pursuant to this Section 3.8.(d) Unavailability
of Tenor of Benchmark. Notwithstanding anything to thecontrary
herein or in any other Loan Document, at any time (including in
connection with theimplementation of a Benchmark Replacement), (i) if the
then-current Benchmark is a term rate (includingthe Term SOFR Reference
Rate) and either (A) any tenor for such Benchmark is not displayed
on ascreen or other information service that publishes such rate from
time to time as selected by Agent in itsreasonable discretion or (B)
the administrator of such Benchmark or the regulatory supervisor for
theadministrator of such Benchmark has provided a public statement or
publication of informationannouncing that any tenor for such Benchmark
is not or will not be representative or in compliance withor aligned
with the International Organization of Securities Commissions (IOSCO)
Principles forFinancial Benchmarks, then Agent may modify the
definition of Interest Period (or any similar oranalogous definition)
for any Benchmark settings at or after such time to remove such
unavailable,non-representative, non-compliant or non-aligned tenor and
(ii) if a tenor that was removed pursuant toclause (i) above either (A)
is subsequently displayed on a screen or information service for a
Benchmark(including a Benchmark Replacement) or (B) is not, or is no longer,
subject to an announcement that it isnot or will not be representative
or in compliance with or aligned with the International Organization
ofSecurities Commissions (IOSCO) Principles for Financial Benchmarks
for a Benchmark (including aBenchmark Replacement), then Agent may
modify the definition of Interest Period (or any similar oranalogous
definition) for all Benchmark settings at or after such time to reinstate
such previouslyremoved tenor.(e) Benchmark Unavailability Period. Upon
the Borrowers receipt of notice of thecommencement of a Benchmark
Unavailability Period, the Borrower may revoke any pending request
fora SOFR Borrowing of, conversion to or continuation of SOFR Loans to
be made, converted or continuedduring any Benchmark Unavailability
Period and, failing that, the Borrower will be deemed to haveconverted
any such request into a request for an Advance or conversion to Domestic
Rate Loans. Duringa Benchmark Unavailability Period or at any time
that a tenor for the then-current Benchmark is not anAvailable Tenor,
the component of Base Rate based upon the then-current Benchmark or
such tenor forsuch Benchmark, as applicable, will not be used in any
determination of Base Rate.3.9. Capital Adequacy.(a) In the event that
Agent or any Lender shall have determined that any ApplicableLaw, rule,
regulation or guideline regarding capital adequacy or liquidity, or
any change therein, or anychange in the interpretation, application
or administration thereof by any Governmental Body, centralbank or
comparable agency charged with the interpretation or administration
thereof, or compliance byAgent or any Lender (for purposes of this Section
3.9, the term Lender shall include Agent or anyLender and any corporation
or bank controlling Agent or any Lender) and the office or branch
whereAgent or any Lender (as so defined) makes or maintains any SOFR
Loans with any request or directiveregarding capital adequacy or
liquidity (whether or not having the force of law) of any such
authority,central bank or comparable agency, has or would have the effect of
reducing the rate of return on Agentor any Lenders capital as a consequence
of its obligations hereunder to a level below that which Agent61
or such Lender would have achieved but for such adoption, change or compliance (taking intoconsideration Agents and each Lenders
policies with respect to capital adequacy or liquidity) by anamount reasonably deemed by Agent or any Lender to be material,
then, from time to time, Borrowershall pay upon demand to Agent or such Lender such additional amount or amounts as will
compensateAgent or such Lender for such reduction. In determining such amount or amounts, Agent or such Lendermay use any
reasonable averaging or attribution methods. The protections of this Section 3.9 shall beavailable to Agent and each Lender
regardless of any possible contention of invalidity or inapplicabilitywith respect to the Applicable Law, regulation or condition.
Notwithstanding anything herein to thecontrary, for all purposes under this Agreement, (x) the Dodd-Frank Wall Street Reform
and ConsumerProtection Act and all requests, rules, regulations, guidelines or directives thereunder or issued inconnection
therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank forInternational Settlements, the Basel
Committee on Banking Supervision (or any successor or similarauthority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III, shall,in either case, be deemed to have gone into effect after the Closing Date, regardless
of the date enacted,adopted or issued.(b) A certificate of Agent or such Lender setting forth such amount or amounts
asshall be necessary to compensate Agent or such Lender with respect to Section 3.9(a) when delivered toBorrower shall be
conclusive absent manifest error.3.10. Taxes.(a) For purposes of this Section 3.10, the term Lender includes the Issuer and
theterm Applicable Law includes FATCA.(b) Any and all payments by or on account of any obligation of any Loan Partyunder
this Agreement or any other Loan Document shall be made without deduction or withholding forany Taxes, except as required by
Applicable Law. If any Applicable Law (as determined in the goodfaith discretion of an applicable Withholding Agent) requires
the deduction or withholding of any Taxfrom any such payment by a Withholding Agent, then the applicable Withholding Agent
shall be entitledto make such deduction or withholding and shall timely pay the full amount deducted or withheld to therelevant
Governmental Body in accordance with Applicable Law and, if such Tax is an Indemnified Tax,then the sum payable by the
applicable Loan Party shall be increased as necessary so that after suchdeduction or withholding has been made (including such
deductions and withholdings applicable toadditional sums payable under this Section) the applicable Recipient receives an
amount equal to the sumit would have received had no such deduction or withholding been made.(c) The Loan Parties shall timely
pay to the relevant Governmental Body inaccordance with Applicable Law, or at the option of Agent timely reimburse it for the
payment of, anyOther Taxes.(d) The Loan Parties shall jointly and severally indemnify each Recipient, within 10days after demand
therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxesimposed or asserted on or attributable
to amounts payable under this Section) payable or paid by suchRecipient or required to be withheld or deducted from a payment
to such Recipient and any penalties,interest and reasonable expenses arising therefrom or with respect thereto, whether
or not suchIndemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Body.Promptly upon
having knowledge that any such Indemnified Taxes have been levied, imposed orassessed, and promptly upon notice by the Agent
or any Lender, the Loan Parties shall pay suchIndemnified Taxes directly to the relevant Governmental Body; provided that
neither Agent nor anyLender shall be under any obligation to provide any such notice to the Loan Parties. A certificate as to62
the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Agent), or byAgent on its own behalf
or on behalf of a Lender, shall be conclusive absent manifest error. The LoanParties hereby indemnify Agent, and shall make
payment in respect thereof within ten days after demandtherefor, for any amount which a Lender for any reason fails to pay to
Agent as required by theAgreement.(e) Each Lender shall severally indemnify Agent, within 10 days after demandtherefor, for
(i) any Indemnified Taxes attributable to such Lender (but only to the extent that any LoanParty has not already indemnified
Agent for such Indemnified Taxes and without limiting the obligationof the Loan Parties to do so), (ii) any Taxes attributable
to such Lenders failure to comply with theprovisions of Section 15.3 relating to the maintenance of the Participant Register
and (iii) any ExcludedTaxes attributable to such Lender, in each case, that are payable or paid by Agent in connection with
thisAgreement or any other Loan Document, and any reasonable expenses arising therefrom or with respectthereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevantGovernmental Body. A certificate as to the amount
of such payment or liability delivered to any Lenderby Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes Agent to set off andapply any and all amounts at any time owing to such Lender under this Agreement or any other
LoanDocument or otherwise payable by Agent to the Lender from any other source against any amount due toAgent under this paragraph
(e).(f) As soon as practicable after any payment of Taxes by any Loan Party to aGovernmental Body pursuant to this Section
3.10, such Loan Party shall deliver to Agent the original or acertified copy of a receipt issued by such Governmental Body
evidencing such payment, a copy of thereturn reporting such payment or other evidence of such payment reasonably satisfactory to
Agent.(g) (i) Any Lender that is entitled to an exemption from or reduction ofwithholding Tax with respect to payments made under
this Agreement or any other Loan Document shalldeliver to Borrower and Agent, at the time or times reasonably requested by
Borrower or Agent, suchproperly completed and executed documentation reasonably requested by Borrower or Agent as willpermit such
payments to be made without withholding or at a reduced rate of withholding. In addition,any Lender, if reasonably requested
by Borrower or Agent, shall deliver such other documentationprescribed by Applicable Law or reasonably requested by Borrower or
Agent as will enable Borrower orAgent to determine whether or not such Lender is subject to backup withholding or information
reportingrequirements. 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 Section3.10(g)(ii)(A), (ii)(B) and (ii)(D)
below) shall not be required if in the Lenders reasonable judgmentsuch completion, execution or submission would subject such
Lender to any material unreimbursed costor expense or would materially prejudice the legal or commercial position of such
Lender.(ii) Without limiting the generality of the foregoing, in the event thatBorrower is a Borrower that is a U.S. Person,(A)
any Lender that is a U.S. Person shall deliver to Borrower andAgent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and fromtime to time thereafter upon the reasonable request of Borrower or Agent), executed copies
of IRS FormW-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;(B) any Foreign Lender shall,
to the extent it is legally entitled to doso, deliver to Borrower and Agent (in such number of copies as shall be requested
by the recipient) on orprior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time63
to time thereafter upon the reasonable request of Borrower or Agent), whichever of the following isapplicable:(1)
in the case of a Foreign Lender claiming the benefits ofan income tax treaty to which the United States is a
party (x) with respect to payments ofinterest under this Agreement or any other Loan Document, properly completed
and dulyexecuted copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing anexemption from, or reduction
of, U.S. federal withholding Tax pursuant to the interestarticle of such tax treaty and (y) with respect to
any other applicable payments under thisAgreement or any other Loan Document, IRS Form W--8BEN or IRS Form
W-8BEN-Eestablishing an exemption from, or reduction of, U.S. federal withholding Tax pursuantto the business
profits or other income article of such tax treaty;(2) properly completed and duly executed copies of IRSForm
W-8ECI;(3) in the case of a Foreign Lender claiming the benefits ofthe exemption for portfolio interest under
Section 881(c) of the Code, (x) a certificatesubstantially in the form of Exhibit H-1 to the effect that such
Foreign Lender is not abank within the meaning of Section 881(c)(3)(A) of the Code, a 10 percentshareholder of
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or acontrolled foreign corporation described
in Section 881(c)(3)(C) of the Code (a U.S.Tax Compliance Certificate) and (y) properly completed and duly
executed copies ofIRS Form W-8BEN or IRS Form W-8BEN-E; or(4) to the extent a Foreign Lender is not the
beneficialowner, properly completed and duly executed copies of IRS Form W-8IMY,accompanied by IRS Form W-8ECI,
IRS Form W-8BEN, or IRS Form W-8BEN-E aU.S. Tax Compliance Certificate substantially in the form of Exhibit H-2
or Exhibit H-3,IRS Form W-9, and/or other certification documents from each beneficial owner, asapplicable;
provided that if the Foreign Lender is a partnership and one or more direct orindirect partners of such Foreign
Lender are claiming the portfolio interest exemption,such Foreign Lender may provide a U.S. Tax Compliance
Certificate substantially in theform of Exhibit H-4 on behalf of each such direct and indirect partner;(C) any
Foreign Lender shall, to the extent it is legally entitled to doso, deliver to Borrower and Agent (in such number
of copies as shall be requested by the recipient) on orprior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from timeto time thereafter upon the reasonable request of Borrower or
Agent), executed copies of any other formprescribed by Applicable Law as a basis for claiming exemption from
or a reduction in U.S. federalwithholding Tax, duly completed, together with such supplementary documentation
as may be prescribedby Applicable Law to permit Borrower or Agent to determine the withholding or deduction
required to bemade; and(D) if a payment made to a Lender under this Agreement or anyother Loan Document would
be subject to U.S. federal withholding Tax imposed by FATCA if suchLender were to fail to comply with the
applicable reporting requirements of FATCA (including thosecontained in Section 1471(b) or 1472(b) of the Code,
as applicable), such Lender shall deliver toBorrower and Agent at the time or times prescribed by law and at
such time or times reasonablyrequested by Borrower or Agent such documentation prescribed by Applicable Law
(including asprescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably64
requested by Borrower or Agent as may be necessary for Borrower and
Agent to comply with theirobligations under FATCA and to determine
that such Lender has complied with such Lendersobligations under
FATCA or to determine the amount to deduct and withhold from
such payment. Solelyfor purposes of this clause (D), FATCA shall
include any amendments made to FATCA after the dateof this
Agreement.(iii) On or before the date the Agent (or any successor
Agent) becomes theAgent hereunder, it shall deliver to Borrower two (2)
duly executed copies of either (A) IRS Form W-9(or any successor
forms) certifying that it is exempt from U.S. federal backup
withholding Tax or (B) aU.S. branch withholding certificate on IRS
Form W-8IMY (or any successor forms) evidencing itsagreement with
Borrower to be treated as a U.S. Person (with respect to amounts
received on account ofany Lender party to this Agreement) and IRS
Form W-8ECI (or any successor forms) (with respect toamounts
received on its own account), with the effect that, in either case,
Borrower will be entitled tomake payments hereunder to the Agent
without withholding or deduction on account of U.S. federalwithholding
Tax. The Agent agrees that if any form or certification it previously
delivered becomesexpires or becomes obsolete or inaccurate
in any respect, it shall update such form or certification.Each Lender
agrees that if any form or certification it previously delivered
expires or becomesobsolete or inaccurate in any respect, it shall
update such form or certification or promptly notifyBorrower
and Agent in writing of its legal inability to do so.(h) If any
party determines, in its sole discretion exercised in good faith,
that it hasreceived a refund of any Taxes as to which it has been
indemnified pursuant to this Section 3.10(including by the payment
of additional amounts pursuant to this Section 3.10), it shall
pay to theindemnifying party an amount equal to such refund (but
only to the extent of indemnity payments madeunder 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 therelevant
Governmental Body with respect to such refund). Such indemnifying
party, upon the request ofsuch indemnified party, shall repay
to such indemnified party the amount paid over pursuant to thisparagraph
(h) (plus any penalties, interest or other charges imposed
by the relevant Governmental Body)in the event that such indemnified
party is required to repay such refund to such Governmental
Body.Notwithstanding anything to the contrary in this paragraph (h),
in no event will the indemnified party berequired to pay any amount
to an indemnifying party pursuant to this paragraph (h) the payment
of whichwould place the indemnified party in a less favorable
net after-Tax position than the indemnified partywould have been
in if the Tax subject to indemnification and giving rise to such
refund had not beendeducted, withheld or otherwise imposed and
the indemnification payments or additional amounts withrespect
to such Tax had never been paid. This paragraph shall not be
construed to require anyindemnified party to make available its Tax
returns (or any other information relating to its Taxes that itdeems
confidential) to the indemnifying party or any other Person.(i)
Notwithstanding anything to the contrary in this Section 3.10,
Agent shall beentitled to withhold United States federal income
taxes at the full 30% withholding rate if in itsreasonable judgment
it is required to do so under the due diligence requirements
imposed upon awithholding agent under Treasury Regulations
Section 1.1441-7(b). Further, Agent is indemnified underTreasury
Regulations Section 1.1461-1(e) against any claims and demands of
any Lender or Participantfor the amount of any tax it deducts and
withholds in accordance with regulations under Section 1441 ofthe
Code.(j) Each partys obligations under this Section 3.10 shall
survive the resignation orreplacement of Agent or any assignment of
rights by, or the replacement of, a Lender, the termination of65
the Commitments and the repayment, satisfaction or discharge of all obligations under this Agreement orany other Loan
Document.IV. COLLATERAL: GENERAL TERMS.4.1. Security Interest in the Collateral.To secure the prompt payment and performance
to Agent, the Issuer and each Lender of theObligations, each Loan Party hereby assigns, pledges and grants to the Collateral
Agent for the ratablebenefit of Agent, the Issuer and each Lender a continuing security interest in and to all of the
Collateral,whether now owned or existing or hereafter acquired or arising and wheresoever located.4.2. Perfection of
Security Interest.(a) Each Loan Party shall take all action that may be necessary or desirable thatAgent may reasonably
request, so as at all times to maintain the validity, perfection, enforceability andpriority of Agents security interest
in the Collateral or to enable Agent to protect, exercise or enforce itsrights hereunder and in the Collateral, including,
but not limited to, (i) promptly discharging all Liensother than Permitted Encumbrances, (ii) delivering to Agent, endorsed
or accompanied by suchinstruments of assignment as Agent may reasonably specify, any and all chattel paper, instruments,
lettersof credits and advices thereof and documents evidencing or forming a part of the Collateral, in each case,to the
extent such Collateral comprises part of the Pledged Collateral required to be delivered to theCollateral Agent under
Section 4.2, and (iii) executing and/or delivering financing statements or otherinstruments of pledge, notices and assignments,
in each case in form and substance satisfactory to Agent,relating to the creation, validity, perfection, maintenance
or continuation of Agents security interestunder the UCC or other Applicable Law.(b) Agent may at any time and from time
to time file, without the signature of anyLoan Party in accordance with Section 9-509 of the UCC, financing statements,
continuation statementsand amendments thereto that describe the Collateral as all assets (or equivalent language) of such
LoanParty and which contain any other information required by the UCC for the sufficiency or filing officeacceptance of
any financing statements, continuation statements or amendments. Each Loan Party agreesto furnish any such information
to Agent promptly upon request.(c) Each Loan Party shall, subject to the Perfection Exceptions, at any time and fromtime
to time, take such steps as Agent may reasonably request to insure the continued perfection andpriority of Agents security
interest in any of the Collateral for the benefit of the Lenders and of its rightstherein. If any Loan Party shall at
any time, acquire a commercial tort claim with a value in excess of$5,000,000 individually (as such term is defined in
the UCC), such Loan Party shall promptly notifyAgent thereof in writing, therein providing a reasonable description and
summary thereof, and upondelivery thereof to Agent, such Loan Party shall be deemed to thereby grant to Agent for the
benefit ofthe Lenders (and each Loan Party hereby grants to Agent, for the benefit of each Lender) a securityinterest and
lien in and to such commercial tort claim and all proceeds thereof, all upon the terms of andgoverned by this Agreement.(d)
Each Loan Party agrees to deliver or cause to be delivered to the Agent any andall (i) Pledged Equity Interests of
Borrower and the Guarantors on the date hereof (subject to Section6.11), (ii) Pledged Debt Securities in a principal amount
in excess of $10,000,000 on the date hereof(subject to Section 6.11) and (iii) all other Pledged Equity Interests or
Pledged Debt Securities requiredto be delivered pursuant to the terms of this Agreement, as promptly as practicable after
the Closing Date(subject to Section 6.11), in each case, in the case of any such Pledged Equity Interests or Pledged Debt66
Securities owned by such Loan Party on the date hereof, and within
30 days of receipt by such LoanParty (or such later date as the
Agent may agree in its sole discretion), in each case, in the case
of anysuch Pledged Equity Interests or Pledged Debt Securities s
acquired by such Loan Party after the datehereof. Each Loan Party
acknowledges and agrees that (i) to the extent any interest in any
limitedliability company or limited partnership controlled now or
in the future by such Loan Party (or by suchLoan Party and one or
more other Loan Parties) and pledged hereunder is a security within
themeaning of Article 8 of the UCC and is governed by Article 8 of
the UCC, such interest shall becertificated or subject to a control
agreement for such uncertificated interest; and such certificate
shall bedelivered to the Agent in accordance with this Section 4.2(d)
and (ii) each such interest shall at all timeshereafter continue
to be such a security and represented by such certificate or subject
to a controlagreement. Each Loan Party further acknowledges
and agrees that with respect to any interest in anylimited liability
company or limited partnership controlled now or in the future
by such Loan Party (or bysuch Loan Party and one or more other Loan
Parties) and pledged hereunder that is not a securitywithin the
meaning of Article 8 of the UCC, the terms of such interest shall at
no time provide that suchinterest is a security within the meaning
of Article 8 of the UCC, nor shall such interest be representedby
a certificate, unless such Loan Party provides prior written
notification to the Agent that the terms ofsuch interest so provide
that such interest is a security within the meaning of Article 8
of the UCC andsuch interest is thereafter represented by a certificate
or subject to a control agreement; and suchcertificate shall
be delivered to the Agent in accordance with this Section 4.2(d).(e)
All charges, expenses and fees Agent may incur in doing any of
the foregoingshall be paid by the Loan Parties in accordance with
Section 15.9 of this Agreement.4.3. [Reserved].4.4. Preservation
of Collateral.In addition to the rights and remedies set forth in
Section 11.1, Agent may following theoccurrence and during the
continuation of an Event of Default: (a) at any time take such
steps as Agentdeems necessary in its reasonable credit judgment to
protect Agents interest in and to preserve theCollateral, including
the hiring of such security guards or the placing of other security
protectionmeasures as Agent may deem appropriate; (b) employ and
maintain at any Loan Partys premises acustodian who shall have
full authority to do all acts necessary to protect Agents interests
in theCollateral; (c) lease warehouse facilities to which Agent
may move all or part of the Collateral; and (d)use any Loan Partys
owned or leased lifts, hoists, trucks and other facilities or
equipment for handling orremoving the Collateral. In addition, following
the occurrence and during the continuation of an Event ofDefault
or in connection with any inspections or field examinations
performed by or on behalf of Agent,Agent shall have, and is hereby
granted, a right of ingress and egress to the places where the
Collateral islocated, and may proceed over and through any Loan Partys
owned or leased property. Each Loan Partyshall cooperate fully with
all of Agents efforts to preserve the Collateral and will take
such actions topreserve the Collateral as Agent may direct. All of
Agents expenses of preserving the Collateral,including any expenses
relating to the bonding of a custodian, shall be paid by the Loan
Parties inaccordance with Section 15.9 of this Agreement.4.5.
Ownership of Collateral.(a) With respect to the Collateral, at the
time the Collateral becomes subject toAgents security interest:
(a) each Loan Party shall be the sole owner of and fully authorized
and able tosell, transfer, pledge and/or grant a first priority
security interest in each and every item of its respectiveCollateral
to Agent; and, except for Permitted Encumbrances the Collateral
shall be free and clear of allLiens and encumbrances whatsoever;
(b) each document and agreement with respect to the Collateral67
executed by any Loan Party or delivered to Agent or any Lender in connection with this Agreement shallbe
true and correct in all material respects; and (c) all signatures and endorsements of each Loan Partythat
appear on such documents and agreements shall be genuine and each Loan Party shall have fullcapacity to
execute same.4.6. Defense of Agents and Lenders Interests.Until (a) payment and performance in full in cash
of all of the Obligations (other than (A)contingent indemnification obligations as to which no claim has
been asserted and (B) obligations andliabilities under Lender-Provided Hedges and Bank Product Obligations)
and (b) termination of thisAgreement, Agents security interests in the Collateral shall continue in full
force and effect. Duringsuch period no Loan Party shall, without Agents prior written consent, pledge,
sell (except PermittedDispositions), assign, transfer, create or suffer to exist a Lien upon or encumber or
allow or suffer to beencumbered in any way except for Permitted Encumbrances, any part of the Collateral.
Each Loan Partyshall defend Agents interests in the Collateral against any and all Persons whatsoever.
Subsequent tothe occurrence and during the continuation of an Event of Default, Agent shall have the right
to takepossession of the indicia of the Collateral and the Collateral in whatever physical form contained,including
without limitation, labels, stationery, documents, instruments and advertising materials. IfAgent
exercises this right to take possession of the Collateral, each Loan Party shall, upon demand,assemble
and make it available to Agent at one of such Loan Partys locations set forth in Schedule 4.5hereto. In
addition, with respect to all Collateral, Agent and Lenders shall be entitled to all of the rightsand
remedies set forth herein and further provided by the UCC or other Applicable Law. Upon theoccurrence and
during the continuation of an Event of Default, each Loan Party shall, and Agent may, atits option, instruct
all suppliers, carriers, forwarders, warehouses or others receiving or holding cash,checks, Inventory,
documents or instruments in which Agent holds a security interest to deliver same toAgent and/or subject to
Agents order and if they shall come into any Loan Partys possession, they shallbe held by such Loan Party
in trust as Agents trustee, and such Loan Party will immediately deliverthem to Agent in their original
form together with any necessary endorsement.4.7. Books and Records.Each Loan Party shall, in all material
respects, (a) keep proper books of record and account inwhich full, true and correct entries will be made of
all dealings or transactions of or in relation to itsbusiness and affairs; (b) set up on its books accruals
with respect to all taxes, assessments, charges, leviesand claims; and (c) on a reasonably current basis
set up on its books, from its earnings, allowancesagainst doubtful Receivables, advances and investments
and all other proper accruals (including withoutlimitation by reason of enumeration, accruals for premiums,
if any, due on required payments andaccruals for depreciation, obsolescence, or amortization of properties),
which should be set aside fromsuch earnings in connection with its business. All determinations pursuant
to this Section 4.7 shall bemade in accordance with, or as required by, GAAP consistently applied.68
4.8. Financial Disclosure.Each Loan Party hereby irrevocably authorizes and directs the Accountants and auditorsemployed
by such Loan Party at any time during the Term to exhibit and deliver to Agent andeach Lender copies of any of such Loan
Partys financial statements, trial balances or otheraccounting records of any sort in the Accountants or auditors possession,
and to disclose toAgent and each Lender any information such Accountants may have concerning such LoanPartys financial
status and business operations. Each Loan Party hereby authorizes all federal,state and municipal authorities to furnish
to Agent and each Lender copies of reports orexaminations relating to such Loan Party, whether made by such Loan Party
or otherwise;however, Agent will attempt to obtain such information or materials directly from the applicableLoan Party
prior to obtaining such information or materials from such authorities.4.9. Compliance with Laws.Each Loan Party shall
comply with all acts, rules, regulations and orders of any GovernmentalBody applicable to the Collateral or any part thereof
or to the operation of such Loan Partys business thenon-compliance with which would reasonably be expected to have a
Material Adverse Effect. TheCollateral at all times shall be maintained in all material respects in accordance with the
requirements ofall insurance carriers which provide insurance with respect to the Collateral so that such insurance shallremain
in full force and effect.4.10. Inspection of Premises.At (x) reasonable times during normal business hours (to be not more
than once per fiscal year)with reasonable prior notice to Borrower (it being understood that at least two (2) Business
Days noticewill be considered reasonable prior notice) or (y) at any time following the occurrence and during thecontinuance
of an Event of Default (provided that no prior notice shall be required following theoccurrence and during the
continuance of an Event of Default), Agent shall have full access to and theright to audit, check, inspect and make abstracts
and copies from each Loan Partys books, records,audits, correspondence and all other papers, in each case, relating
to the Collateral and the operation ofsuch Loan Partys business. At (x) reasonable times during business hours (to be
not more than once perfiscal year) with reasonable prior notice to Borrower (it being understood that at least two (2)
BusinessDays notice will be considered reasonable prior notice) or (y) at any time following the occurrence andduring the
continuance of an Event of Default (provided that no prior notice shall be required followingthe occurrence and during the
continuance of an Event of Default), Agent and its agents may enter uponany of any Loan Partys premises for the sole purpose
of inspecting the Collateral and any and all recordspertaining thereto and the operation of such Loan Partys business;
provided that, that neither Agent andits agents may exercise the rights of visitation and in-person inspection hereunder
with respect to anyproperty of any Loan Party until such Loan Party has reopened such property from COVID-19 safetyclosures,
and thereafter, such Agent and its agents shall only conduct such visits or inspections inaccordance with (i) Applicable
Law, including, for the avoidance of doubt, any guidelines published bythe Centers of Disease Control and Prevention
and (ii) the reasonable safety and health policies and/orprocedures maintained at such time by such Loan Party, to the
extent that such health policies and/orprocedures are not maintained by such Loan Party in order to circumvent the
requirements of this Section4.10.4.11. Insurance.Each Loan Party shall bear the full risk of any loss of any nature whatsoever
with respect to theCollateral. At each Loan Parties own cost and expense in amounts and with carriers acceptable to69
Agent, Loan Parties shall: (a) keep all its insurable properties and
properties in which any Loan Party hasan interest insured against
the hazards of fire, flood, sprinkler leakage, those hazards
covered byextended coverage insurance and such other hazards, and
for such amounts, as is customary in the case ofcompanies engaged
in businesses similar to the Loan Parties including, without
limitation, businessinterruption insurance; (b) maintain a bond in
such amount as is customary in the case of companies inthe same
industry and of comparable size as the Loan Parties against
larceny, embezzlement or othercriminal misappropriation of insureds
officers and employees who may either singly or jointly withothers
at any time have access to the assets or funds of the Loan Parties
either directly or throughauthority to draw upon such funds or to
direct generally the disposition of such assets; (c) [reserved];
(d)maintain public and product liability insurance against claims for
personal injury, death or propertydamage suffered by others; (e)
maintain all such workers compensation or similar insurance as may
berequired under the laws of any state or jurisdiction in which
the Loan Parties are engaged in business; (f)[reserved]; (g)
[reserved]; and (h) furnish Agent with (i) copies of all policies and
evidence of themaintenance of such policies by the renewal thereof
at least thirty (30) days before any expiration date,and (ii)
appropriate endorsements in form and substance reasonably satisfactory
to Agent, naming Agentas a co-insured and lenders loss payable as
its interests may appear with respect to all insurancecoverage referred
to in clauses (a), (c), (d), (e) and (f) above, as applicable,
and providing (A) that allproceeds thereunder shall be payable to
Agent (excluding insurance coverage referred to in clauses (d)and
(e) above), (B) no such insurance shall be affected by any act or
neglect of the insured or owner ofthe property described in such
policy other than nonpayment of premiums, and (C) that such policy
andlenders loss payable clauses may not be cancelled, amended
or terminated unless at least thirty (30)days prior written notice
is given to Agent. In the event of any loss thereunder (excluding
insurancecoverage referred to in clauses (d) and (e) above), the
carriers named therein hereby are directed byAgent and the Loan
Parties to make payment for such loss to Agent and not to the
applicable Loan Partyand Agent jointly. If any insurance losses are
paid by check, draft or other instrument payable to a LoanParty and
Agent jointly, Agent may endorse such Loan Partys name thereon
and do such other things asAgent may deem advisable to reduce the
same to cash. Following the occurrence and during thecontinuation
of an Event of Default, Agent is hereby authorized to adjust and
compromise claims underinsurance coverage referred to clause (a)
above. All loss recoveries received by Agent upon any suchinsurance
may be applied to the Obligations, in such order as Agent in its
sole discretion shall determine.Any surplus shall be paid by Agent
to Borrower within five (5) Business Days of receipt thereof
orapplied as may be otherwise required by law. Any deficiency
thereon shall be paid by the Loan Parties toAgent, on demand.4.12.
[Reserved].4.13. Payment of Taxes.Each Loan Party will pay, before
delinquency or before the expiration of any extension period,all
Taxes, assessments and other charges lawfully levied or assessed
upon such Loan Party or any of theCollateral by any Governmental
Body, except (i) where such Taxes, assessments, fees or other
chargesare being contested in good faith by appropriate proceedings
diligently conducted and which properreserves have been taken by such
Loan Party or (ii) where the failure to make such payments would
not,in the aggregate, reasonably be expected to have a Material
Adverse Effect.4.14. Payment of Leasehold Obligations.Each Loan
Party shall at all times pay, when and as due, its rental obligations
under all leasesunder which it is a tenant except where the
failure to make such payments would not, individually or inthe
aggregate, reasonably be expected to have a Material Adverse Effect.70
4.15. [Reserved].4.16. [Reserved].4.17. [Reserved].4.18. Exculpation of Liability.Nothing herein
contained shall be construed to constitute Agent or any Lender as Loan Partiesagent for any purpose
whatsoever, nor shall Agent or any Lender be responsible or liable for anyshortage, discrepancy, damage,
loss or destruction of any part of the Collateral wherever the same may belocated and regardless
of the cause thereof. Neither Agent nor any Lender, whether by anything hereinor in any assignment
or otherwise, assume any of any Loan Partys obligations under any contract oragreement assigned to
Agent or such Lender, and neither Agent nor any Lender shall be responsible inany way for the performance
by any Loan Party of any of the terms and conditions thereof.4.19. [Reserved].4.20. Financing
Statements.Other than the financing statements filed by Agent with respect to the transactions
contemplatedunder this Agreement and the financing statements evidencing Permitted Encumbrances, including
(butnot limited to) those described on Schedule 7.2, no Loan Party has authorized the filing of any
financingstatement covering any of the Collateral.4.21. [Reserved].4.22. Agent as Collateral Agent.(a)
Each Lender hereby authorizes Agent to (i) execute, deliver and perform as acollateral agent under
this Agreement and each other Loan Document to which Agent is or is intended tobe a party, (ii)
exercise and enforce any and all rights, powers and remedies provided to Agent or anyLender by this
Agreement and each other Loan Document to which Agent is or is intended to be a party,any Applicable
Law, or any other document, instrument, or agreement, and (iii) take any other actionunder this
Agreement and each other Loan Document to which Agent is or is intended to be a partywhich Agent in its
sole discretion shall deem advisable and in the best interests of the Lenders.Notwithstanding the
foregoing, Agent shall not commence an enforcement action except at the directionof the Required Lenders;
provided that if Agent is prohibited by any court order or applicable law fromcommencing any enforcement
action, Agent shall not be obligated to commence such enforcement actionuntil such authority is
obtained. All decisions with respect to the type of enforcement action which is tobe commenced shall
be made by, and all actions with respect to prosecution and settlement of suchenforcement action
shall require the direction of the Required Lenders, and Agent shall not be required totake any enforcement
action in the absence of any such direction. Agent will use its commerciallyreasonable efforts
to pursue diligently the prosecution of any enforcement action, which Agent is soauthorized or
directed to initiate pursuant to this Agreement. Agent shall make available to the Lenderscopies of
all notices it receives in connection with the Collateral or any enforcement action promptlyupon
receipt.(b) Agent may, but shall not be obligated, to take such action as it deems necessaryto perfect
or continue the perfection of the Liens on the Collateral held for the benefit of the Lenders.Agent
shall not release any of the Collateral held for the benefit of the Lenders, or any Liens on the71
Collateral held for the benefit of the Lenders, except (i) upon the written direction of the RequiredLenders (or of all Lenders if
required under Section 15.2(b)), (ii) upon payment in full in cash of theObligations (other than (A) contingent indemnification
obligations as to which no claim has beenasserted and (B) obligations and liabilities under Lender-Provided Hedges and Bank
ProductObligations), the termination of all Commitments under this Agreement and the cash collateralization ofall Letters
of Credit in accordance with this Agreement (or as otherwise acceptable to the Issuer in itssole discretion), (iii) for
Collateral consisting of a debt instrument if the indebtedness evidenced therebyhas been paid in full, (iv) where such release
is expressly permitted under the Loan Documents to whichit is a party or (v) with respect to any Receivable that is sold or
pledged in connection with any PermittedReceivables Indebtedness.(c) Subject to the terms of this Agreement, Agent agrees to
administer and enforcethis Agreement and the other Loan Documents to which it is a party and to foreclose upon, collect anddispose
of the Collateral and to apply the proceeds therefrom, for the benefit of Agent, the Issuer andeach Lender, as provided
in this Agreement, and otherwise to perform its duties and obligations as thecollateral agent hereunder in accordance with the
terms hereof; provided, however, that Agent shall haveno duties or responsibilities except those expressly set forth in the
Loan Documents to which it is a partyas Collateral Agent, and no implied covenants or obligations shall be read into any such
Loan Documentsagainst Agent. Agent will use its commercially reasonable efforts to pursue diligently the enforcement ofthis
Agreement and the other Loan Documents, which Agent is so authorized or directed to initiatepursuant to this Agreement.(d)
Notwithstanding anything contained herein to the contrary, Agent shall not berequired to exercise any discretion or take any
action but shall only be required to act or refrain fromacting (and shall be fully protected in so acting or refraining from
acting) upon the written instructions ofthe Required Lenders, in each case, as specified therein, and such instructions shall
be binding uponAgent, the Issuer and each Lender; provided, however, that the written instructions of Agent, the Issuerand
each Lender shall be required where expressly provided for herein; and provided, further, that Agentshall not be required to
take any action which is contrary to any provision herein or Applicable Law.(e) Agent may at any time request instructions
from the Required Lenders as to acourse of action to be taken by it hereunder and any of the other Loan Documents or in
connectionherewith and therewith or any other matters relating hereto and thereto.(f) Unless otherwise consented to in writing by
Agent (acting at the direction of theRequired Lenders), no Lender or Issuer, individually or together with any other Lenders or
the Issuer,shall have the right, nor shall it, exercise or enforce any of the rights, powers or remedies which Agent isauthorized
to exercise or enforce under this Agreement or any of the other Loan Documents.(g) Notwithstanding any other provision
herein, in no event shall Agent be requiredto foreclose on, or take possession of, the Collateral, if, in the judgment of
Agent, such action would bein violation of any Applicable Law, rule or regulation pertaining thereto, or if Agent reasonably
believesthat such action would result in the incurrence of liability by Agent for which it is not fully indemnifiedby the Issuer
and each Lender.(h) Neither Agent nor any of its directors, officers, employees or agents shall beliable or responsible for
any action taken or omitted to be taken by it or them hereunder or in connectionherewith, except for its or their own gross
negligence or willful misconduct (as determined by a court ofcompetent jurisdiction in a final and non-appealable judgment).72
(i) Agent shall not be responsible to the Issuer and each Lender for
(i) any recitalstatements, representations or warranties by Borrower
or any of the Issuer and Lenders contained in thisAgreement or the
Loan Documents, or any certificate or other document delivered
by Borrower or theIssuer and each Lender thereunder, (ii) the
value, validity, effectiveness, genuineness, enforceability(other
than as to Agent with respect to such documents to which Agent is
a party) or sufficiency of thisAgreement or any other document
referred to or provided for herein or therein or of the Collateral
heldby Agent hereunder, (iii) the performance or observance by
Borrower or any of the Issuer and Lenders ofany of their respective
agreements contained herein or therein, nor shall Agent be liable
because of theinvalidity or unenforceability of any provisions of this
Agreement (other than as to itself) or (iv) thevalidity, perfection,
priority or enforceability of the Liens in any of the Collateral,
whether impaired byoperation of law or by reason of any action
or omission to act on its part hereunder (except to the extentsuch
action or omission constitutes gross negligence or willful misconduct,
as determined by a court ofcompetent jurisdiction in a final and
non-appealable judgment, on the part of Agent), the validity
of thetitle of Borrower to the Collateral, insuring the Collateral
or the payment of taxes, charges, assessmentsor Liens upon the
Collateral or otherwise as to the maintenance of the Collateral.(j)
The powers conferred on Agent under this Agreement and any of the
other LoanDocuments are solely to protect its interest in the
Collateral and shall not impose any duty upon it toexercise any such
powers. Except for the safe custody and preservation of the
Collateral in its possessionand the accounting for monies actually
received by it, Agent shall have no other duty as to the Collateral,whether
or not Agent or any of the other Lenders or the Issuer has
or is deemed to have knowledge of anymatters, or as to the taking
of any necessary steps to preserve rights against any parties or
any other rightspertaining to the Collateral. Agent hereby agrees to
exercise reasonable care in respect of the custodyand preservation
of the Collateral. Agent shall be deemed to have exercised reasonable
care in thecustody and preservation of the Collateral in its
possession if such Collateral is accorded treatmentsubstantially equal
to that which Agent accords its own property.(k) Upon the payment
in full in cash of the Obligations (other than (A) contingentindemnification
obligations as to which no claim has been asserted
and (B) obligations and liabilitiesunder Lender-Provided Hedges and
Bank Product Obligations), the termination of all Commitmentsunder
this Agreement, the cash collateralization of all Letters of Credit
in accordance with thisAgreement (or as otherwise acceptable
to the Issuer in its sole discretion), and the termination of
thisAgreement or as may be otherwise directed by Required Lenders (or
of all Lenders if required underSection 15.2(b)) in accordance
with the applicable provisions of this Agreement, all rights to
theCollateral as shall not have been sold or otherwise applied,
in each case, pursuant to the terms hereof,shall revert to the
applicable Loan Parties, their respective successors or permitted
assigns, or otherwiseas a court of competent jurisdiction may direct.
Upon any such termination, Agent shall, at Borrowersexpense, execute
and deliver to Borrower such documents as Borrower shall reasonably
request toevidence such termination and release.V. REPRESENTATIONS
AND WARRANTIES.Each Loan Party represents and warrants as of
the date hereof and on every other date thereafteron which an Advance
is made (solely to the extent required to be true and correct
for such Advancepursuant to Section 8.2), to Agent, Collateral
Agent and the Lenders that:5.1. Authority.Each Loan Party has full
power, authority and legal right to enter into this Agreement and
theother Loan Documents and to perform all its Obligations hereunder
and thereunder. The execution,delivery and performance of this
Agreement and of the other Loan Documents (a) are within such Loan73
Partys corporate or limited liability company power, as applicable, have been duly authorized, are not incontravention
of Applicable Law or the terms of such Loan Partys by-laws, operating agreement,certificate of incorporation,
certificate of formation, as applicable, or other applicable documents relatingto such Loan Partys organization
or formation or to the conduct of such Loan Partys business or of anyagreement or undertaking to which
such Loan Party is a party or by which such Loan Party is bound, and(b) will not conflict with nor result in any
breach in any of the provisions of or constitute a default underor result in the creation of any Lien except
Permitted Encumbrances upon any asset of such Loan Partyunder the provisions of any agreement, charter document,
by-law, or other instrument to which such LoanParty or its property is a party or by which it may be bound. This
Agreement and the other LoanDocuments, as applicable, constitute the legal, valid and binding obligation of such
Loan Party,enforceable in accordance with their respective terms, except as such enforceability may be limited
bybankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditorsrights
generally or by equitable principles relating to enforceability.5.2. Formation and Qualification.(a) Each Loan Party
is duly formed or incorporated and in good standing under thelaws of the States set forth in Schedule 5.2(a)
hereto and is qualified to do business and is in goodstanding in the States listed in Schedule 5.2(a) hereto which
constitute all States in which qualificationand good standing are necessary for such Loan Party to conduct its
business and own its property andwhere the failure to so qualify would reasonably be expected to have a Material
Adverse Effect. Theexact State organizational identification number of each Loan Party is set forth in
Schedule 5.2(a) hereto.Each Loan Party has delivered to Agent true and complete copies of its certificate of
incorporation,certificate of formation, by-laws, operating agreement and stockholders agreement (or any otheragreements
among the equity holders of such Loan Party), as applicable, and will promptly notify Lenderof any amendment or
changes thereto.(b) The only Subsidiaries of and owners of each Loan Party (including owners ofEquity Interests
issued by each Loan Party (other than the Borrower)) are listed on Schedule 5.2(b).5.3. [Reserved].5.4. Tax
Returns.Each Loan Partys federal tax identification number is set forth in Schedule 5.4 hereto. EachLoan Party has
filed all federal, state and local tax returns and other reports each is required by law tofile and has paid all
taxes, assessments, fees and other governmental charges that are due and payableother than any such taxes,
assessments, fees or other governmental charges which are being contested ingood faith and by appropriate proceedings
and with respect to which proper reserves have been taken bysuch Loan Party. Federal, state and local income tax
returns of each Loan Party have been examined andreported upon by the appropriate taxing authority or closed
by applicable statute and satisfied for allfiscal years prior to and including the fiscal year ending December 31,
2020. The Provision for Taxes onthe books of each Loan Party are adequate for all years not closed by applicable
statutes, and for itscurrent fiscal year, and no Loan Party has any knowledge of any deficiency or additional
assessment inconnection therewith not provided for on its books.5.5. Financial Statements.(a) [Reserved].74
(b) The quarterly cash flow projections of Borrower for the period January 1, 2022through and including December
31, 2025, (the Projections) were prepared by Authorized Officer ofBorrower, are based on underlying assumptions
which provide a reasonable basis for the projectionscontained therein and reflect Borrowers judgment based on
present circumstances of the most likely setof conditions and course of action for the projected period.(c)
[Reserved].(d) The audited consolidated balance sheets of Borrower as of December 31, 2018,December 31, 2019
and December 31, 2020, and the related consolidated statements of income, changesin stockholders equity, and
changes in cash flow for the period ended on such date, all accompanied byreports thereon containing opinions
without qualification by the Accountants, copies of which have beendelivered to Agent, have been prepared
in accordance with GAAP, consistently applied (except forchanges in application in which such accountants
concur) and present fairly the financial position ofBorrower at such date and the results of its operations for
such period.(e) Since December 31, 2020, no event, condition or state of facts has occurredwhich has had, or
would reasonably be expected to have, a Material Adverse Effect individually or in theaggregate.5.6. Entity
Name.The exact name of each Loan Party is set forth in Schedule 5.6 hereto. No Loan Partyhas been known by any
other corporate, limited liability company or partnership name in the pastfive years and no Loan Party sells
Inventory under any other name except as set forth in Schedule5.6 hereto, nor has any Loan Party been the
surviving corporation of a merger or consolidation oracquired all or substantially all of the assets of any
Person during the preceding five (5) years,except as set forth in Schedule 5.6 hereto.5.7. O.S.H.A. and
Environmental Compliance.(a) Each Loan Party has duly complied with, and its facilities, business, assets,property,
leaseholds and Equipment are in compliance, in all material respects, with the provisions of theFederal
Occupational Safety and Health Act, the Environmental Protection Act, RCRA and all otherEnvironmental Laws; there
are no outstanding citations, notices or orders of non-compliance issued toany Loan Party or relating to its
business, assets, property, leaseholds or Equipment under any such laws,rules or regulations, in each case
except as set forth on Schedule 5.7.(b) Each Loan Party has been issued all required federal, state and local
licenses,certificates or permits relating to all applicable Environmental Laws, the effect of the failure of
which toobtain such licenses, certificates or permits could reasonably be expected to have a Material AdverseEffect
individually or in the aggregate, except as set forth on Schedule 5.7.(c) (i) To Borrowers knowledge,
there are no visible signs of releases, spills,discharges, leaks or disposal (each, a Release) of Hazardous
Substances at, upon, under or within anyReal Property; (ii) to Borrowers knowledge, there are no underground
storage tanks or polychlorinatedbiphenyls on any Real Property; (iii) to Borrowers knowledge, the Real Property
has never been used asa treatment, storage or disposal facility of Hazardous Waste; and (iv) no Hazardous
Substances arepresent on any Real Property, excepting such quantities as are handled in accordance with all
applicablemanufacturers instructions and governmental regulations and in proper storage containers and as are75
necessary or appropriate for the operation of the commercial business
of any Loan Party or of its tenants,in each case except as set forth
on Schedule 5.7.5.8. Solvency; No Litigation, Violation, Indebtedness
or Default.(a) After giving effect to the Transactions, Borrower
and its Subsidiaries, on aconsolidated basis, will be solvent, able
to pay its debts as they mature, have capital sufficient to carry
onits business and all businesses in which it is about to engage, and
(i) as of the Closing Date, the fairpresent saleable value of each
Loan Partys assets, is in excess of the amount of its liabilities and
(ii)immediately subsequent to the Closing Date, the fair saleable
value of each Loan Partys assets(calculated on a going concern basis)
will be in excess of the amount of its liabilities. For purposes
ofthis Section 5.8(a), the amount of any contingent liability at any
time shall be computed as the amountthat, in light of all of the facts
and circumstances existing at such time, represents the amount that
canreasonably be expected to become an actual or matured liability
(irrespective of whether such contingentliabilities meet the criteria
for accrual under Statement of Financial Accounting Standard No.
5).(b) Except as disclosed in Schedule 5.8(b), no Loan Party has any
pending orthreatened litigation, arbitration, actions or proceedings
which would reasonably be expected,individually or in the aggregate,
to have a Material Adverse Effect.(c) No Loan Party is in violation
of any applicable statute, regulation or ordinance inany material
respect, nor is any Loan Party in violation of any order of any court,
Governmental Body orarbitration board or tribunal.(d) No Loan Party
nor any member of the Controlled Group maintains or contributesto any
Pension Benefit Plan or Multiemployer Plan other than those listed on
Schedule 5.8(d). Except aswould not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect, (i)no Pension
Benefit Plan has incurred any accumulated funding deficiency, as
defined in Section302(a)(2) of ERISA and Section 412(a) of the Code,
whether or not waived, and each of the Loan Partiesand each member
of the Controlled Group have met all applicable minimum funding
requirements underSection 302 of ERISA in respect of each Pension Benefit
Plan, (ii) each Plan which is intended to be aqualified plan under
Section 401(a) of the Code has received a favorable determination
letter, or afavorable opinion letter as to its qualification under Section
401(a) of the Code and no event orcircumstance has occurred which
would reasonably be expected to result in the revocation of suchqualified
status of the form of the Plan document under the Code, (iii)
no Loan Party nor any member ofthe Controlled Group has incurred any
liability to the PBGC other than for the payment of premiums, andthere
are no premium payments which have become due which are unpaid, (iv)
no Pension Benefit Planhas been terminated within the last five
years by the plan administrator thereof nor by the PBGC, and noLoan
Party knows of any facts or circumstances which would cause the PBGC
to institute proceedingsunder Title IV of ERISA to terminate any
Pension Benefit Plan, (v) at this time, the current value of theassets
of each Pension Benefit Plan or funded Plan exceeds the present value
of the accrued benefits andother liabilities of such Pension Benefit
Plan or Plan and no Loan Party nor any member of theControlled Group
knows of any facts or circumstances which would materially change the
value of suchassets and accrued benefits and other liabilities, (vi)
no Loan Party has breached any of theresponsibilities, obligations
or duties imposed on it by ERISA with respect to any Plan, (vii) no
LoanParty nor any member a Controlled Group has incurred any material
liability for any excise tax arisingunder Section 4972 or 4980B of the
Code, and, no Loan Party knows of any facts or circumstances thatwould
give rise to any such material liability, (viii) no Loan Party, and
to the knowledge of any LoanParty, no fiduciary of, or trustee
to, any Plan, has engaged in a prohibited transaction described
inSection 406 of ERISA or Section 4975 of the Code nor taken any action
which would constitute or resultin a Termination Event with respect
to any such Plan which is subject to ERISA, (ix) each Loan Party76
has made all contributions due and payable with respect to each Plan, (x) no Loan Party knows of anyevent
described in Section 4043(b) of ERISA for which the thirty (30) day notice period contained in 29CFR 2615.3 has
not been waived, (xi) no Loan Party has any fiduciary responsibility for investmentswith respect to any plan
existing for the benefit of Persons other than employees or former employees ofthe Loan Parties, and (xii)
no Loan Party nor any member of the Controlled Group has withdrawn,completely or partially, from any Multiemployer
Plan so as to incur liability under the MultiemployerPension Plan Amendments Act of 1980.5.9. Patents,
Trademarks, Copyrights and Licenses.All material patents, patent applications, registered trademarks and
service marks, trademark andservice mark applications, copyright registrations, copyright applications,
owned by any Loan Party areset forth on Schedule 5.9, and to the knowledge of Borrower, are valid and have
been duly registered orfiled the USPTO or USCO, as applicable. The intellectual property rights owned by a
Loan Party,together with the intellectual property rights licensed to a Loan Party, constitute all of the
intellectualproperty rights which are necessary for the operation of its business as currently conducted. To
theknowledge of Borrower, there is no objection to or pending challenge to the validity of any materialpatent,
trademark, or copyright owned by a Loan Party, and no Loan Party is aware of any grounds forany challenge,
except as set forth in Schedule 5.9, any oppositions or office actions in the USPTO, orotherwise disclosed in
writing to Agent after the Closing Date. Each patent, patent application,trademark, trademark application,
service mark, service mark application, copyright, and copyrightapplication owned or held by any Loan Party
and all trade secrets used by any Loan Party in each caseconsist of original material or property developed
by such Loan Party or was lawfully acquired by suchLoan Party from the proper and lawful owner thereof. Each
of such items has been maintained by theLoan Parties so as to preserve the value thereof from the date of
creation or acquisition thereof to theextent that the applicable Loan Party, in its reasonable business
judgment, has determined that it wouldbe commercially reasonable to do so.5.10. Licenses and Permits.Except as
set forth in Schedule 5.10, each Loan Party (a) is in compliance with and (b) hasprocured and is now in
possession of, all material governmental or regulatory licenses or permitsrequired by any applicable federal,
state or local law or regulation for the operation of its business ineach jurisdiction wherein it is now
conducting or proposes to conduct business except, in each case,where the failure to be in such compliance, or
to procure such licenses or permits would not reasonablybe expected to have a Material Adverse Effect.5.11.
No Defaults.(a) No Loan Party is in default in the payment of the principal of or interest on anyMaterial
Indebtedness or under any instrument or agreement under or subject to which any MaterialIndebtedness has
been issued and no event has occurred under the provisions of any such instrument oragreement which with or
without the lapse of time or the giving of notice, or both, constitutes or wouldconstitute an event of
default thereunder.(b) No Loan Party is in default in the payment or performance of any MaterialContract.77
5.12. No Burdensome Restrictions.No Loan Party has agreed or consented to cause or permit in
the future (upon the happening of acontingency or otherwise) any of its property, whether now
owned or hereafter acquired, to be subject toa Lien which is not a Permitted Encumbrance.5.13.
No Labor Disputes.No Loan Party is involved in any labor dispute; there are no strikes
or walkouts or to itsknowledge any union organization campaigns of such Loan Partys employees
in existence or to itsknowledge threatened and no collective bargaining, labor contract is
scheduled by its terms to expireduring the Term.5.14. Margin Regulations.No Loan Party is
engaged, nor will it engage, principally or as one of its important activities, inthe business
of extending credit for the purpose of purchasing or carrying any margin stock withinthe meaning
of the quoted term under Regulation U of the Board of Governors of the Federal ReserveSystem
as now and from time to time hereafter in effect. No part of the proceeds of any Advance
will beused, directly or indirectly, for purchasing or carrying margin stock, or to extend
credit to others topurchase or carry any margin stock, as defined in Regulation U of such Board
of Governors or forany other purpose that entails a violation of any Regulations of such
Board of Governors, includingRegulation T, U or X.5.15. Investment Company Act.No Loan Party
is required to be registered under the Investment Company Act of 1940, asamended, nor is it
controlled by such a company.5.16. Disclosure.No representation or warranty made by any Loan
Party in any financial statement, report,certificate or any other document furnished by or on
behalf of any Loan Party (other thanprojected financial information, pro forma financial
information and information of a generaleconomic or industry nature) to the Agent or any Lender
in connection with the transactionscontemplated hereby (as modified or supplemented by other
information so furnished), whentaken as a whole, contains any material misstatement of fact or
omits to state any material factnecessary to make the statements therein (when taken as a
whole), in the light of thecircumstances under which they were made, not materially misleading;
provided that, withrespect to projected and pro forma financial information, the Loan Parties
represent only thatsuch information was prepared in good faith based upon assumptions believed
to be reasonable atthe time of preparation and delivery; it being understood that actual
results may vary from suchforecasts and that such variances may be material.5.17. Swaps.Except
for Lender-Provided Hedges, no Loan Party is a party to, nor will it be a party to, anyHedging
Agreement or foreign exchange transaction whereby such Loan Party has agreed or will agree
toswap interest rates or currencies, other than those Hedging Agreements or foreign exchange
transactions,as applicable, which have been entered into for non-speculative purposes.78
5.18. Conflicts.To the Loan Parties knowledge, no provision of any mortgage, indenture, contract, agreement,judgment,
decree or order binding on any Loan Party or affecting the Collateral or any provision ofApplicable
Law of any Governmental Body conflicts with, or requires any Consent which (1) has notalready been obtained,
(2) would in any way prevent the execution, delivery or performance of, the termsof this Agreement or the
Loan Documents, or (3) the failure to obtain or make would not reasonably beexpected to have, individually or
in the aggregate, a Material Adverse Effect.5.19. [Reserved].5.20. Business and Property of Loan Parties.Upon
and after the Closing Date, the Loan Parties do not propose to engage in any material lineof business
substantially different from those lines of business conducted by Borrower and its RestrictedSubsidiaries
on the date hereof or any business reasonably related, complementary, synergistic orancillary thereto or reasonable
extensions thereof. On the Closing Date, each Loan Party will own all theproperty and possess all of the
rights and Consents necessary for the conduct of its business.5.21. Material Contracts. Each Material Contract
is in full force and effect and no materialdefaults enforceable against any Loan Party exist thereunder.
No Loan Party has received written noticefrom any party to any such contract stating that it intends to
terminate or amend such contract.5.22. Sanctions.(a) None of Borrower, any of its Subsidiaries, any director
or officer, or anyemployee, agent, or Affiliate, of Borrower or any of its Subsidiaries is a Person that
is, or is owned orcontrolled by Persons that are, (i) the target of any sanctions administered or enforced
by the USDepartment of the Treasurys Office of Foreign Assets Control, the US Department of State, the
UnitedNations Security Council, the European Union, His Majestys Treasury or the Hong Kong MonetaryAuthority
(collectively, Sanctions), or (ii) located, organized or resident in a country or territory that isthe target
of Sanctions, including currently, the Crimea region, the so-called Donetsk Peoples Republic,the so-called
Luhansk Peoples Republic, Cuba, Iran, North Korea and Syria.(b) No Collateral is or will become property (i) in
which a Sanctioned Person holdsan interest; (ii) beneficially owned, directly or indirectly, by a Sanctioned
Person; (iii) that is due to orfrom a Sanctioned Person; (iv) that is located in a jurisdiction subject
to Sanctions; or (v) that wouldotherwise cause any violation by a Lender of any applicable anti-terrorism
law if such Lender were toobtain an Lien on such property or provide services in consideration of such property.5.23.
Anti-Corruption and Anti-Bribery Laws.None of Borrower or any of its Subsidiaries nor to the knowledge
of Borrower, any director,officer, agent, employee, Affiliate or other Person acting on behalf of Borrower
or any of its Subsidiariesis aware of or has taken any action, directly or indirectly, that would result
in a violation by such Personsof any applicable anti-bribery law, including but not limited to, the United
Kingdom Bribery Act 2010(the UK Bribery Act) and the U.S. Foreign Corrupt Practices Act of 1977 (the FCPA).
Furthermore,Borrower and, to the knowledge of Borrower, its Affiliates have conducted their businesses
incompliance with the UK Bribery Act, the FCPA and similar laws, rules or regulations and have instituted79
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continueto ensure, continued compliance therewith.5.24.
[Reserved].5.25. Beneficial Ownership Certification.As of the Closing
Date, the information included in the Beneficial Ownership Certification,
ifapplicable, is true and correct in all respects.VI. AFFIRMATIVE
COVENANTS.Each Loan Party shall, until payment in full in cash of the
Obligations (other than (A) contingentindemnification obligations as to
which no claim has been asserted and (B) obligations and liabilitiesunder
Lender-Provided Hedges and Bank Product Obligations), the termination of
all Commitmentsunder this Agreement, the cash collateralization of all
Letters of Credit in accordance with thisAgreement (or as otherwise
acceptable to the Issuer in its sole discretion), and the termination of
thisAgreement:6.1. Payment of Fees.Pay to Agent on demand all usual and
customary fees and expenses which Agent incurs inconnection with the
forwarding of Advance proceeds and the other Transactions. Agent may,
withoutmaking demand, charge Borrowers Account for all such fees and expenses.80
6.2. Conduct of Business and Maintenance of Existence and Assets. (i) Conductcontinuously and operate actively its
business according to good business practices consistent with pastpractices and maintain all of its properties
useful or necessary in its business in good working order andcondition (reasonable wear and tear excepted and
except as may be disposed of in accordance with theterms of this Agreement), including, without limitation, all
patents, copyrights, design rights, tradenames,trade secrets and trademarks and take all actions necessary to
enforce and protect the validity of anyintellectual property right or other right included in the Collateral, in
each case, where the failure to do sowould reasonably be expected to have a Material Adverse Effect; (ii) keep
in full force and effect itsexistence (except to the extent not otherwise prohibited by this Agreement); (iii)
comply with the lawsand regulations governing the conduct of its business where the failure to do so would reasonably
beexpected to have a Material Adverse Effect; and (iv) except where the failure to do so would notreasonably
be expected to have a Material Adverse Effect, make all such reports and pay all suchfranchise and other Taxes
and license fees and do all such other acts and things as may be lawfullyrequired to maintain its rights,
licenses, leases, powers and franchises under the laws of the United Statesor any political subdivision thereof.6.3.
Violations. Promptly notify Agent in writing of any violation of any law, statute,regulation or ordinance
of any Governmental Body, or of any agency thereof, applicable to (and legallybinding on) Borrower or any other
Loan Party which would reasonably be expected to have a MaterialAdverse Effect.6.4. Use of Proceeds. Use the
proceeds of each Advance only for the purposes specified inSection 2.15.6.5. Execution of Supplemental Instruments.
Execute and deliver to Agent from time to time,promptly following demand, such reasonable supplemental
agreements, statements, assignments andtransfers, or instructions or documents relating to the Collateral, and
such other instruments as Agentmay reasonably request, and take such further action as the Agent reasonably deems
necessary to perfect,protect, ensure the priority of or continue the Agents Lien on the Collateral in order that
the full intent ofthis Agreement may be carried into effect.6.6. Payment of Indebtedness. Subject at all times
to any applicable subordinationarrangement in favor of Agent or Lenders, pay, discharge or otherwise satisfy at
or before maturity(subject, where applicable, to specified grace periods and, in the case of the trade payables,
to normalpayment practices) all its obligations and liabilities of whatever nature, except when the failure to
do sowould not reasonably be expected to have a Material Adverse Effect or when the amount or validitythereof is
currently being contested in good faith by appropriate proceedings and Borrower and eachother Loan Party shall
have provided for such reserves as are proper and necessary in accordance withGAAP.6.7. Standards of Financial
Statements. Cause all financial statements, projections andbudgets referred to in Sections 9.7, 9.8, 9.10, and
9.12 as to which GAAP is applicable to be completeand correct in all material respects (subject, in the case of
interim financial statements, to normalyear-end audit adjustments) and to be prepared in reasonable detail and
in accordance with GAAPapplied consistently throughout the periods reflected therein.6.8. Financial Covenants.81
(a) Interest Coverage Ratio. The Interest Coverage Ratio of Borrower,
as of the endof each fiscal quarter (commencing with the fiscal quarter
ending March 31, 2022) with respect to thefour (4) fiscal quarters then
ended, shall not be less than 3.00 to 1.00.(b) Total Net Leverage Ratio.
The Total Net Leverage Ratio of Borrower, as of theend of each fiscal
quarter (commencing with the fiscal quarter ending March 31, 2022) with
respect tothe four (4) fiscal quarters then ended, shall not be greater
than 4.50 to 1.00.(c) Secured Net Leverage Ratio. The Secured Net
Leverage Ratio of Borrower, asof the end of each fiscal quarter (commencing
with the fiscal quarter ending March 31, 2022) withrespect to the
four (4) fiscal quarters then ended, shall not be greater than 2.50 to
1.00.6.9. Keepwell. Each Qualified ECP Loan Party, jointly and severally,
hereby absolutely,unconditionally and irrevocably undertakes to provide
such funds or other support as may be neededfrom time to time by any
of Borrower or any Guarantor hereunder to honor all of such Personsobligations
under this Agreement in respect of Swap Obligations (provided,
however, that each QualifiedECP Loan Party shall only be liable under this
Section 6.9 for the maximum amount of such liability thatcan be hereby
incurred without rendering its obligations under this Section 6.9, or
otherwise under thisAgreement, voidable under Applicable Law, including
Applicable Law relating to fraudulent conveyanceor fraudulent transfer,
and not for any greater amount). The obligations of each Qualified ECP
LoanParty under this Section 6.9 shall remain in full force and effect
until all of the Obligations and all otheramounts payable under this
Agreement shall have been paid in full in cash (other than (A)
contingentindemnification obligations as to which no claim has been asserted and
(B) obligations and liabilitiesunder Lender-Provided Hedges and Bank
Product Obligations), all Letters of Credit shall have expired orbeen
terminated and the Commitments shall have expired or been terminated. Each
Qualified ECP LoanParty intends that this Section 6.9 constitute, and
this Section 6.9 shall be deemed to constitute, akeepwell, support, or
other agreement for the benefit of each of Borrower and each Guarantor for
allpurposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.6.10.
Designation of Subsidiaries. Borrower may at any time as of or after
the Closing Datedesignate any Restricted Subsidiary of (or acquired by)
Borrower as an Unrestricted Subsidiary (unlesssuch Restricted Subsidiary
or any of its Subsidiaries owns any Equity Interests or Indebtedness of,
orowns or holds any Lien on, any property of, Borrower or any Subsidiary
(other than solely anySubsidiary of the Subsidiary to be so designated))
or any Unrestricted Subsidiary as a RestrictedSubsidiary by written
notice to the Agent; provided that (i) immediately before and after
suchdesignation, no Event of Default shall exist (including after giving
effect to the reclassification ofInvestments in, Indebtedness of and Liens
on the assets of, the applicable Restricted Subsidiary orUnrestricted
Subsidiary), (ii) the financial covenants set forth in Section 6.8 shall
have been met, asdetermined on a pro forma basis as of the last day
of the most recently ended Calculation Period forwhich financial statements
were required to have been delivered in accordance with Sections
9.7 and 9.8after giving effect to such designation (and determined on
the basis of the financial statements for themost recently-ended test
period at or prior to such time), (iii) in the case of the designation
of anySubsidiary as an Unrestricted Subsidiary, such designation shall
constitute an Investment in suchUnrestricted Subsidiary (calculated as
an amount equal to the sum of (x) the fair market value of theSubsidiary
designated immediately prior to such designation (such fair market value
to be calculatedwithout regard to any Obligations of such Subsidiary
under the Guaranty) and (y) the aggregate principalamount of any
Indebtedness owed by the Subsidiary to Borrower or any of its Subsidiaries
immediatelyprior to such designation, all calculated, except as set forth
in the parenthetical to clause (x) above, on aconsolidated basis in
accordance with GAAP), and such designation shall only be permitted to the
extentsuch Investment is permitted under Section 7.4, (iv) immediately
after giving effect to the designation ofan Unrestricted Subsidiary as a
Restricted Subsidiary, Borrower shall comply with the provisions of82
Section 7.11 with respect to such designated Restricted Subsidiary,
(v) no Restricted Subsidiary may be aSubsidiary of an Unrestricted
Subsidiary, (vi) each of (A) the Subsidiary to be so designated and
(B) itsSubsidiaries has not, at the time of designation, and does
not thereafter, create, incur, issue, assume,guarantee or otherwise
become directly or indirectly liable with respect to any Indebtedness
pursuant towhich the applicable lender has recourse to any of the
assets of Borrower or any Restricted Subsidiary(other than Equity
Interests in an Unrestricted Subsidiary); (vii) at any time, (A) neither
Borrower norany of its Restricted Subsidiaries shall sell, transfer
or dispose of, or grant an exclusive license of,Intellectual Property
of Borrower and its Restricted Subsidiaries to an Unrestricted
Subsidiary or aSubsidiary of an Unrestricted Subsidiary unless such
sale, transfer, disposition of, or the grant of anexclusive license
of, Intellectual Property (1) is limited solely to Intellectual
Property that is not materialto the conduct of the business of
Borrower and its Restricted Subsidiaries, taken as a whole, and
(2) shallnot materially adversely affect the design, manufacture,
assembly, finishing, distribution, marketing orsale of any products
or services of Borrower and its Restricted Subsidiaries and (B) no
Subsidiary may bedesignated as an Unrestricted Subsidiary or continue
as an Unrestricted Subsidiary if it owns, or holds anexclusive
license of, Intellectual Property that is material to the conduct of
the business of Borrower andits Restricted Subsidiaries, and (viii)
Borrower shall have delivered to the Agent and each Lender acertificate
executed by its chief financial officer or treasurer, certifying
to the compliance with therequirements of the preceding clauses (i)
through (v), inclusive, and containing the calculations (inreasonable
detail) required by the preceding clause (ii). The designation of any
Unrestricted Subsidiaryas a Restricted Subsidiary shall constitute
(i) the incurrence at the time of designation of any
Investment,Indebtedness or Liens of such Subsidiary existing at such time
and (ii) a return on any Investment byBorrower in Unrestricted
Subsidiaries pursuant to the preceding sentence in an amount equal to the
fairmarket value at the date of such designation of Borrowers Investment
in such Subsidiary. For theavoidance of doubt, in no event shall
an Unrestricted Subsidiary be the legal owner or exclusive licenseeof
material Intellectual Property that is used in the business of
Borrower and its Restricted Subsidiaries.6.11. Post-Closing Obligations.
Borrower shall complete the actions specified in Schedule6.11
within the time periods specific therein, or such longer period of
time that Agent may agree to inwriting in its sole discretion.VII.
NEGATIVE COVENANTS.No Loan Party shall, until payment in full in
cash of the Obligations (other than (A) contingentindemnification
obligations as to which no claim has been asserted and (B) obligations
and liabilitiesunder Lender-Provided Hedges and Bank Product
Obligations), the termination of all Commitmentsunder the Agreement,
the cash collateralization of all Letters of Credit in accordance
with this Agreement(or as otherwise acceptable to the Issuer in its
sole discretion), and the termination of this Agreement:7.1. Merger,
Consolidation and Sale of Assets.(a) Enter into any merger,
consolidation or other reorganization with or into anyother Person or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution) or permitany other Person to consolidate with or merge
with it; provided that (i) Restricted Subsidiaries ofBorrower may
merge into Borrower (so long as Borrower is the surviving entity of
such merger), (ii)Loan Parties (other than Borrower) may merge
into each other, and (iii) Foreign Subsidiaries may mergeinto each
other.(b) Sell, lease, transfer or otherwise dispose of any of its
properties or assets(including by an allocation of assets among newly
divided limited liability companies pursuant to a planof division),
except (a) Inventory in the ordinary course of business and (b)
sales and other dispositionsof assets outside of the ordinary course
of business the aggregate fair market value of which in the case83
of this clause (b) is not to exceed the greater of (i) $40,000,000 and (ii) 5.0% of
Consolidated TotalAssets for the most recent four (4) consecutive fiscal quarters
for which financial statements have beendelivered, in any fiscal year so long
as, in each case, the Net Cash Proceeds of any such disposition areremitted to
Agent in accordance with, and to the extent required by, Section 2.14 (collectively,Permitted
Dispositions)(c) Grant any exclusive license under material Intellectual
Property (other thanlicenses entered into by a Loan Party in, or incidental to,
the ordinary course of business), or amend orpermit the amendment of any of the
licenses under which Borrower has granted rights under its materialowned Intellectual
Property to a third party in a manner that could reasonably be expected to
materiallyimpair, in the good faith judgment of the Agent, the value of the
Intellectual Property or the Lien on andsecurity interest in the Intellectual Property
created therein hereby, without the consent of the Agent.7.2. Creation of Liens;
Negative Pledges.(a) Create or suffer to exist any Lien or transfer upon or against
any property or assets of anyLoan Party or any Restricted Subsidiary now owned or
hereafter acquired, except PermittedEncumbrances, or (b) enter into any agreement
prohibiting the creation or assumption of any Lien uponits properties or assets now
owned or hereafter acquired.7.3. Guarantees.Become liable upon the obligations
of any Person by assumption, endorsement or guarantythereof or otherwise except
(i) to Agent, Issuer and Lenders, (ii) the endorsement of checks in theordinary
course of business, (iii) guarantees existing on the Closing Date and set forth on
Schedule7.3(a), (iv) guarantees by a Loan Party of Indebtedness of any Restricted
Subsidiary permitted by Section7.7, (v) the Existing Subsidiary Guarantees, (vi)
unsecured guarantees incurred in the ordinary course ofbusiness with respect to
Permitted Indebtedness described in clause (k) of the definition thereof, (vii)unsecured
guarantees arising with respect to customary indemnification obligations to
purchasers inconnection with Permitted Dispositions; (viii) unsecured guarantees
with respect to Indebtedness ofBorrower or one of its Subsidiaries, to the extent
that the Person that is obligated under such guarantycould have incurred such
underlying Indebtedness hereunder and (ix) to the extent such guaranteesconstitute
Indebtedness, any other guarantees constituting Permitted Indebtedness.7.4.
Investments.Directly or indirectly make any Investment, other than Permitted Investments.84
7.5. Sales and Lease-Backs.Become or remain liable as lessee or as a guarantor or other surety with
respect to anylease of any property, plant or equipment, whether now owned or hereafter acquired,
which anyLoan Party (i) has sold or transferred or is to sell or to transfer to any other Person (other
thanBorrower or any of its Restricted Subsidiaries), or (ii) intends to use for substantially the
samepurpose as any other property, plant or equipment which has been or is to be sold or transferredby
a Loan Party to any Person (other than Borrower or any of its Restricted Subsidiaries) inconnection
with such lease unless the aggregate amount of the fair market value of all assets soldor transferred
in connection with all such transactions does not exceed $10,000,000.7.6. Restricted Payments.Make
any Restricted Payment except:(a) Borrower or any Subsidiary may declare and pay or make distributions
that arepayable solely in additional shares of its common stock (or warrants, options or other
rights to acquireadditional shares of its common stock);(b) any Subsidiary may declare and pay or
make Restricted Payments to any LoanParty, (ii) any Foreign Subsidiary may declare and pay or make
Restricted Payments to any other ForeignSubsidiary or to Borrower or any Guarantor, (iii) any Immaterial
Subsidiary may declare and pay or makeRestricted Payments to any other Immaterial Subsidiary, and
(iv) any Loan Party may declare and makeRestricted Payments to any Loan Party;(c) Borrower may make
non-cash repurchases or redemptions of stock or otherEquity Interests in exchange for stock (other
than Disqualified Equity Interests) or stock options;(d) the Loan Parties and the Restricted Subsidiaries
may make Restricted Paymentsnot exceeding $5,000,000 during any fiscal year, pursuant to and
in accordance with equity option plans,equity award plans, or other benefit plans for management or
employees of the Loan Parties and theirRestricted Subsidiaries (including non-cash repurchases of
Equity Interests deemed to occur upon theexercise of equity awards if such Equity Interests represent a
portion of the purchase price therefor); and(e) Borrower or any Subsidiary may make other Restricted
Payments:(i) so long as no Event of Default shall exist or result from the making ofsuch Restricted
Payment, in an amount not exceeding the greater of (1) $10,000,000 and (2) 2.0% ofConsolidated
Total Assets as of the last day of the most recently-ended test period; and(ii) so long as (A) no
Event of Default shall exist or result from the makingof such Restricted Payment, (B) as of the most
recently ended test period for which financial statementsshall have been delivered, calculated on a
pro forma basis as if such Restricted Payment had been madeon the first day of the relevant testing
period, neither of the Total Net Leverage Ratio and Secured NetLeverage Ratio, immediately before and
after giving effect to such Restricted Payment, exceed anamount that is 0.50:1.00 below the Total
Net Leverage Ratio and Secured Net Leverage Ratio required atsuch time under Section 6.8, and (C)
Liquidity is not less than $75,000,000 before and after giving effectto any such Restricted Payment.85
7.7. Indebtedness.Create, incur, assume or suffer to exist any Indebtedness except Permitted
Indebtedness.7.8. Nature of Business.(a) Substantially change the nature of the business in
which it is presently engaged (it beingunderstood that any other businesses reasonably related,
ancillary or complementary thereto or areasonable extension thereof shall be permitted);
nor(b) except as permitted under this Agreement, purchase or invest, directly or indirectly,
inany assets or property other than (i) purchases or investments in the ordinary course
of business or (ii)purchases of, or investments in, assets or property which are useful
in, necessary for, or reasonablyrelated, ancillary or complementary to, or a reasonable
extension of the business.7.9. Transactions with Affiliates.Directly or indirectly, purchase,
acquire or lease any property from, or sell, transfer or lease anyproperty to, any
Affiliate, or enter into or permit to exist any transaction with any Affiliate except
(a)transactions in the ordinary course of business or on an arms-length basis on terms no less
favorablethan terms which would have been obtainable from a Person other than an Affiliate;
(b) transactionsbetween or among Borrower and/or any of its Restricted Subsidiaries (or
an entity that becomes aRestricted Subsidiary as a result of such transaction), and (c)
transactions expressly permitted pursuant toSection 7.6.7.10. [Reserved].7.11. Subsidiaries.
Form any Restricted Subsidiary unless (a) such Subsidiary is an ExcludedSubsidiary or (b)
to the extent such Subsidiary is not an Excluded Subsidiary, within 30 days of the dateof
formation of such Restricted Subsidiary, (x) such Restricted Subsidiary enters into a
guaranty of theObligations on terms acceptable to Agent and the Lenders, (y) such Restricted
Subsidiary grants Agentfor its benefit and for the ratable benefit of Lenders a perfected
and first priority security interest in itsassets in accordance with the terms of this
Agreement and the other Loan Documents, and (z) Agent shallhave received all documents,
including customary legal opinions in form and substance reasonablysatisfactory to Agent which
shall cover such customary matters incident to the transactions contemplatedby this Section
7.11(b) and the other Loan Documents as Agent may reasonably require.7.12. Fiscal Year
and Accounting Changes.Change its fiscal year from December 31 of each calendar year or
make any change (i) inaccounting treatment and reporting practices except as permitted by
GAAP or (ii) in tax reportingtreatment except as permitted by law.7.13. Compliance with ERISA.
In each case, except as would not reasonably be expected toresult in a Material Adverse
Effect:(a) Maintain or become obligated to contribute to any Plan, other than an employeewelfare
plan as defined in 3(1) of ERISA or those Plans disclosed on Schedule 5.8(d).86
(b) Engage in any non-exempt prohibited transaction, as that term is defined insection 406 of ERISA and Section
4975 of the Code (assuming any such prohibited transaction does notresult from Lender using plan assets
to fund any portion of the Advance).(c) Incur, or permit any member of the Controlled Group to incur, any
accumulatedfunding deficiency, as that term is defined in Section 302 of ERISA or Section 412 of the Code.(d)
Terminate, or permit any member of the Controlled Group to terminate, any Plan(other than an employee welfare
plan as defined in 3(1) of ERISA) where such event could result inany liability of any Loan Party or the
imposition of a lien on the property of any Loan Party pursuant toSection 4068 of ERISA.(e) Assume, or permit
any member of the Controlled Group to assume, anyobligation to contribute to any Multiemployer Plan not
disclosed on Schedule 5.8(d).(f) Incur, or permit any member of the Controlled Group to incur, any
withdrawalliability to any Multiemployer Plan.(g) Fail to promptly notify Agent of the occurrence of any Termination
Event.(h) Fail to comply with the requirements of ERISA or the Code or other ApplicableLaws in respect of
any Plan.(i) Fail to meet, or permit any member of the Controlled Group to fail to meet, theminimum funding
requirements under ERISA or the Code.7.14. Amendment of Documents and Material Contracts.Amend, modify or
waive any term or provision of its certificate of incorporation (or certificate offormation) or by-laws (or
operating agreement) or equivalent document, any shareholders agreement, orMaterial Contract in a manner
materially adverse to Agent or the Lenders taken as a whole.7.15. Prepayment, Amendment of Indebtedness.(a)
At any time, directly or indirectly, prepay any Junior Lien Indebtedness orSubordinated Indebtedness (other
than Restricted Payments to the extent permitted by Section 7.6), orrepurchase, redeem, retire or otherwise
acquire any Indebtedness of Borrower or any of its RestrictedSubsidiaries; provided, that Borrower may refinance
the Existing Convertible Notes so long as (i) theprincipal amount of such refinanced Existing Convertible
Notes shall not exceed the principal amount ofthe Existing Convertible Notes (the principal amount of such
refinanced Existing Convertible Notes plusany interest capitalized in connection with such refinanced
Existing Convertible Notes Indebtedness, theamount of prepayment premium, if any, original issue discount,
if any, and reasonable fees, costs, andexpenses incurred in connection therewith, the Refinanced Existing
Convertible Notes Indebtedness),(ii) such refinanced Existing Convertible Notes shall have a final maturity
that is no earlier than theTermination Date, (iii) such refinanced Existing Convertible Notes shall have a
Weighted Average Lifeto Maturity not less than the Weighted Average Life to Maturity of the Existing Convertible
Notes,(iv) such refinanced Existing Convertible Notes shall rank in right of payment no more senior
than theObligations on terms (excluding any redemption or conversion settlement provisions), taken as a
whole,not materially less favorable to the Agent and the Lenders than the Existing Convertible Notes, (v) as
ofthe date of incurring such Refinanced Existing Convertible Notes Indebtedness and after giving effectthereto,
no Event of Default shall exist or have occurred and be continuing, (vi) such Refinanced Existing87
Convertible Notes Indebtedness and any guarantees thereof shall be unsecured, (vii) the obligors inrespect
of the Refinanced Existing Convertible Notes Indebtedness immediately prior to suchrefinancing, refunding,
extending, renewing, continuing, substituting or replacing thereof shall be theonly obligors on such Refinanced
Existing Convertible Notes Indebtedness, and (viii) the terms andconditions (excluding as to pricing,
premiums and optional prepayment or redemption or conversionsettlement provisions) of any such Refinanced
Existing Convertible Notes Indebtedness, taken as awhole, are not materially less favorable to Borrower
or any of its Restricted Subsidiaries than the termsand conditions of the Existing Convertible Notes. For
the avoidance of doubt, the incurrence of the FirstAmendment Convertible Notes comprised of Refinanced
Existing Convertible Notes Indebtedness shallbe deemed to comply with this Section 7.15.(b) Amend, modify,
supplement, waive compliance with, or consent tononcompliance with, the First Amendment Convertible Notes
or any agreement, certificate, document orinstrument executed or delivered by Borrower or any of its
Restricted Subsidiaries and evidencing JuniorLien Indebtedness or Subordinated Indebtedness of Borrower or any
of its Restricted Subsidiaries otherthan the Obligations, unless the amendment, modification, supplement,
waiver or consent (i) does notadversely affect Borrowers or any of its Restricted Subsidiaries, as
applicable, ability to pay andperform each of its Obligations at the time and in the manner set forth herein
and in the other LoanDocuments and is not otherwise adverse to the Agent and the Lenders, and (ii) except
as to the FirstAmendment Convertible Notes, is in compliance with the subordination provisions therein
and anysubordination agreement with respect thereto in favor of the Agent and the Lenders.7.16. State of
Organization.Change the State in which it is incorporated or otherwise organized, unless it has given Agent
notless than thirty (30) days prior written notice thereof.7.17. Sanctions; Anti-Bribery Laws.(a) Directly
or indirectly, use the proceeds of any Advance, or lend, contribute orotherwise make available such proceeds
to any Subsidiary, joint venture partner or other Person, (i) tofund any activities or business of or
with any Person, or in any country or territory, that, at the time ofsuch funding, is the target of Sanctions,
or (ii) in any other manner that would result in a violation ofSanctions by any Person (including any
Person participating in the Advances, whether as administrativeagent, collateral agent, issuing bank,
arranger, bookrunner, underwriter, advisor, investor, lender orotherwise).(b) Directly or indirectly, use any
part of the proceeds of any Advance for anypayments that could constitute a violation of any applicable
anti-bribery law.VIII. CONDITIONS PRECEDENT.8.1. Conditions to the Closing Date.The effectiveness of this
Agreement and the occurrence of the Closing Date are subject to thesatisfaction, or waiver by all Lenders
of the following conditions precedent:(a) Loan Documents. Agent shall have received executed counterparts
of (i) thisAgreement from each Loan Party, (ii) the Guaranty from each Guarantor, (iii) the Stock
PledgeAgreement from each Loan Party that is a party thereto, in each case, in form and substance reasonably88
satisfactory to Agent and Lenders together with the share certificates referred to in the Stock PledgeAgreement (if
any) and stock powers relating thereto (if applicable), and (iv) the other Loan Documents;(b) Notes. Agent shall
have received for the account of each Lender requesting aNote, a Note duly executed and delivered by an Authorized
Officer of Borrower;(c) Filings, Registrations, Recordings and Searches. Each document (including,without limitation,
any UCC financing statement, termination statement or release) required by thisAgreement or any other Loan Document or
reasonably requested by Agent to be filed, registered orrecorded in order to create, in favor of Agent, a perfected
first priority security interest in or lien upon theCollateral shall have been properly filed, registered or recorded
(or duly prepared for filing, registrationor recording) in each jurisdiction in which the filing, registration
or recordation thereof is so required orrequested. Agent shall also have received customary UCC, U.S. patent, trademark
and copyright, tax,ERISA, litigation, bankruptcy and judgment lien searches (or the foreign equivalent thereof,
if any) withrespect to the Loan Parties in such jurisdictions as Agent shall reasonably require, and the results
of suchsearches shall be reasonably satisfactory to Agent;(d) Proceedings of the Loan Parties. Agent shall have
received a copy of theresolutions, in form and substance reasonably satisfactory to Agent, of the Board of Directors
(orequivalent authority) of each Loan Party authorizing (i) the execution, delivery and performance of thisAgreement
and the other Loan Documents, the Notes (for Borrower only) and any related agreements byeach Loan Party and (ii) the
granting by each Loan Party of the security interests in and liens upon theCollateral, in each case certified by
an Authorized Officer of such Loan Party as of the Closing Date;and, such certificate shall state that the resolutions
thereby certified have not been amended, modified,revoked or rescinded as of the date of such certificate;(e)
Incumbency Certificates of Loan Parties. Agent shall have received a certificateof an Authorized Officer of each
Loan Party, dated the Closing Date, as to the incumbency and signatureof the officers of such Loan Party executing
this Agreement, any certificate or other documents to bedelivered by it pursuant hereto, together with evidence of
the incumbency of such Authorized Officer;(f) [Reserved];(g) [Reserved];(h) Certificates. Agent shall have received
a copy of the certificate of incorporation,certificate of organization or equivalent document of each Loan Party,
and all amendments thereto,certified by the Secretary of State or other appropriate official of its jurisdiction of
organization togetherwith copies of the bylaws or operating agreement or other constitutive documents, as applicable,
of eachLoan Party certified as accurate and complete by an Authorized Officer of such Loan Party;(i) Good Standing
Certificates. Agent shall have received good standing certificatesor certificates of existences (or equivalent thereof,
if any) for each Loan Party dated as of a recent dateprior to the Closing Date, issued by the Secretary of State
or other appropriate official of such LoanPartys jurisdiction of organization or formation (to the extent applicable
in such Loan Partysjurisdiction of organization or formation);(j) Legal Opinion. Agent shall have received a
customary, executed legal opinionof Morrison Foerster LLP in form and substance reasonably satisfactory to Agent which
shall cover suchcustomary matters incidental to the transactions contemplated by this Agreement and the other Loan89
Documents as Agent may reasonably require and each Loan Party hereby authorizes and directs suchcounsel to
deliver such opinions to Agent and Lenders;(k) [Reserved];(l) Solvency Certificate. Agent shall have received a
solvency certificate executedby the chief financial officer of Borrower in a form reasonably satisfactory to
Agent;(m) Fees and Expenses. Agent shall have received all fees payable to Agent andLenders on or prior to the
Closing Date pursuant to Article III and under the Fee Letter and all other feesand expenses incurred by Agent on
or prior to the Closing Date;(n) Financial Statements. Agent shall have received (i) a copy of the Projections,(ii)
the financial statements referred to in Section 5.5(d), and (iii) unaudited balance sheets, statements
ofincome and statements of cash flow for Borrower for each fiscal month ended after the date of theapplicable
financial statements delivered pursuant to clause (ii) above and at least 15 days before theClosing Date, which
shall, in each case, be reasonably satisfactory in all respects to Lenders;(o) Indebtedness. All Indebtedness
of the Loan Parties not expressly permittedhereunder shall have been terminated or contemporaneously paid in
full and any Liens on the assets ofthe Loan Parties securing such Indebtedness shall have been terminated;(p)
Insurance. Subject to Section 6.11, Agent shall have received in form andsubstance satisfactory to Agent, certified
copies of the Loan Parties casualty insurance policies, togetherwith lenders loss payable endorsements on
Agents standard form of lenders loss payable endorsementnaming Agent as lender loss payee, and certified copies
of the Loan Parties liability insurance policies,together with endorsements naming Agent as a co-insured;(q)
Payment Instructions. Agent shall have received written instructions fromBorrower directing the application of
proceeds of the initial Advances made pursuant to this Agreement;(r) Consents. Agent shall have received any and
all Consents reasonably necessaryto permit the effectuation of the transactions contemplated by this Agreement
and the other LoanDocuments; and, Agent shall have received such Consents and waivers of such third parties
as mayreasonably assert claims with respect to the Collateral, as Agent shall deem necessary (in its
reasonablediscretion);(s) No Material Adverse Effect. Since December 31, 2020, there shall not haveoccurred any change
in the business, assets, operations, results or condition (financial or otherwise) ofBorrower and its Restricted
Subsidiaries which has had, or would reasonably be expected to have, aMaterial Adverse Effect;(t) Closing
Certificate. Agent shall have received a closing certificate signed by anAuthorized Officer of Borrower dated
as of the date hereof, stating that (i) all representations andwarranties set forth in this Agreement and the
other Loan Documents are true and correct in all materialrespects (except that such materiality qualifier shall
not be applicable to any representations or warrantiesthat already are qualified or modified as to materiality
or Material Adverse Effect in the text thereof,which representations and warranties shall be true and correct in
all respects subject to suchqualification) on and as of such date as if made on and as of such date except to
the extent suchrepresentations or warranties are limited by their terms to a specific date (in which case
suchrepresentation or warranty shall be true and correct on and as of such earlier date in all material respects90
(except that such materiality qualifier shall not be applicable to any representations or warranties thatalready are
qualified or modified as to materiality or Material Adverse Effect in the text thereof,which representations and warranties
shall be true and correct in all respects subject to suchqualification) on and as of such earlier date), (ii) the Loan
Parties are on such date in compliance with allthe terms and provisions set forth in this Agreement and the other Loan
Documents, (iii) on such date noDefault or Event of Default has occurred or is continuing or would result from the
consummation of theTransactions, and (iv) confirming that the condition precedent set forth in clause (s) of this Section
8.1has been satisfied;(u) Beneficial Ownership Certification. To the extent Borrower qualifies as a legalentity customer
under the Beneficial Ownership Regulation, at least three (3) Business Days prior to theClosing Date, if any Lender has
requested, in a written notice to Borrower at least ten (10) Business Daysprior to the Closing Date, a Beneficial Ownership
Certification in relation to Borrower, then such Lendershall have received such Beneficial Ownership Certification;
and(v) Diligence. Agent shall have completed all business, legal, tax, accounting,environmental and regulatory due diligence
(including, without limitation, all know your customerinquiries), with results reasonably satisfactory to Agent.8.2.
Conditions to Each Advance.The agreement of Lenders to make any Advance requested to be made on any date (including,without
limitation, the initial Advance, but excluding Advances, the proceeds of which are to reimburseAgent for amounts
drawn under a Letter of Credit), is subject to the satisfaction of the followingconditions precedent as of the date such
Advance is made:(a) Representations and Warranties. Each of the representations and warrantiesmade by each Loan Party
in or pursuant to this Agreement (other than in the case of any Advanceoccurring after the Closing Date the proceeds of
which are used solely to repay or refinance anyportion of the then outstanding balance of the First Amendment Convertible
Notes that arecallable (or otherwise owed) as of such date, the representations and warranties contained inSection
5.5(e)) or any other Loan Document shall be true and correct in all material respects (except thatsuch materiality
qualifier shall not be applicable to any representations or warranties that already arequalified or modified as to
materiality or Material Adverse Effect in the text thereof, whichrepresentations and warranties shall be true and correct in
all respects subject to such qualification) onand as of such date as if made on and as of such date except to the extent
such representations orwarranties are limited by their terms to a specific date (in which case such representation or
warrantyshall be true and correct on and as of such earlier date in all material respects (except that suchmateriality
qualifier shall not be applicable to any representations or warranties that already are qualifiedor modified as to materiality
or Material Adverse Effect in the text thereof, which representationsand warranties shall be true and correct in all
respects subject to such qualification) on and as of suchearlier date);(b) No Default. No Event of Default or Default
shall have occurred and becontinuing on such date, or would exist after giving effect to the Advances requested to be made,
on suchdate; provided, however that with the approval of Required Lenders (or of all Lenders if required underSection
15.2(b)), Lenders, in their sole discretion, may continue to make Advances notwithstanding theexistence of an Event of
Default or Default and that any Advances so made shall not be deemed a waiverof any such Event of Default or Default;91
(c) Maximum Revolving Advances and Swingline Loans. In the case of anyRevolving Advances
requested to be made, after giving effect thereto, the aggregate Revolving Advancesshall
not exceed the maximum amount of Revolving Advances permitted under Sections 2.1 and 2.5,
andin the case of any Swingline Loans requested to be made, after giving effect thereto,
the aggregateoutstanding principal amount of Swingline Loans shall not exceed the Maximum
Swingline LoanAmount;(d) Maximum Letters of Credit. In the case of any Letters of
Credit requested to bemade, after giving effect thereto, the aggregate face amount and
reimbursement obligations outstandingin respect of Letters of Credit shall not exceed the
maximum amount permitted under Section 2.9; and(e) Notice of Borrowing. Agent shall have
received a completed Notice ofBorrowing executed by Borrower and otherwise complying with
the requirements of Section 2.2.Each request for an Advance by Borrower hereunder shall
constitute a representation andwarranty by Borrower as of the date of such Advance that
the conditions contained in this subsectionshall have been satisfied.IX. INFORMATION AS TO
LOAN PARTIES.The Loan Parties shall, until satisfaction in full in cash of the Obligations
(other than (A)contingent indemnification obligations as to which no claim has been
asserted and (B) obligations andliabilities under Lender-Provided Hedges and Bank Product
Obligations) and the termination of thisAgreement:9.1. Disclosure of Material
Matters.Immediately upon learning thereof, report to Agent all matters materially affecting the
value,enforceability or collectability of any portion of the Collateral including, without
limitation, any LoanPartys reclamation or repossession of, or the return to any Loan Party
of, a material amount of goods orclaims or disputes asserted by any customer or other
obligor.9.2. [Reserved].9.3. [Reserved].9.4. Litigation.Promptly notify Agent in writing of
any litigation, suit or administrative proceeding affecting anyLoan Party, whether or not
the claim is covered by insurance, and of any suit or administrativeproceeding, which in
any such case would reasonably be expected to have a Material Adverse Effect.9.5. Material
Occurrences.Promptly notify Agent in writing upon the occurrence of (a) any Event of Default
or Default; (b)any event, development or circumstance whereby any financial statements
or other reports furnished toAgent fail in any material respect to present fairly (and,
solely with respect to the financial statementsdelivered pursuant to Section 9.7 and 9.8,
in accordance with GAAP consistently applied) the financialcondition or operating results
of Loan Parties as of the date of such statements; and (c) any otherdevelopment in the
business or affairs of any Loan Party which would reasonably be expected to have a92
Material Adverse Effect; in each case describing the nature thereof and the action such Loan Partyproposes to
take with respect thereto.9.6. [Reserved].9.7. Annual Audited Financial Statements.Furnish Agent within one
hundred and twenty (120) days after the end of each fiscal year ofBorrower (or, if required to be filed with
the SEC at an earlier date, within fifteen (15) days after anysuch earlier date (without giving effect to any
extension permitted by the SEC)), consolidated financialstatements of Borrower including, but not limited to,
consolidated statements of income andstockholders equity and cash flow reflecting results of operations from
the beginning of the currentfiscal year to the end of such fiscal year, and the balance sheet as at the end
of such fiscal year, allprepared in accordance with GAAP applied on a basis consistent with prior practices,
and in reasonabledetail and reported upon without qualification (other than any such exception, qualification
orexplanatory paragraph that is with respect to, or resulting from, (i) an upcoming maturity date of anyAdvances
or other Indebtedness incurred in compliance with this Agreement or (ii) the activities,operations, financial
results, assets or liabilities of any Unrestricted Subsidiary) (a Report) by anindependent certified
public accounting firm selected by Borrower and satisfactory to Agent (theAccountants). In addition, the reports
shall be accompanied by Compliance Certificate.9.8. Quarterly Financial Statements.Furnish Agent within
forty-five (45) days after the end of each of the first three fiscal quarters ofBorrower (or, if required to
be filed with the SEC at an earlier date, within fifteen (15) days after anysuch earlier date (without giving
effect to any extension permitted by the SEC)), the unauditedconsolidated balance sheets of Borrower and
unaudited consolidated statements of income andstockholders equity and cash flow of Borrower reflecting results
of operations from the beginning of thefiscal year to the end of such fiscal quarter and for such fiscal
quarter prepared on a basis consistent withprior practices and complete and correct in all material respects,
subject to normal and recurring year-endadjustments that individually and in the aggregate are not material to
the business of Borrower. Eachsuch balance sheet, statement of income and stockholders equity and statement
of cash flow shall setforth a comparison of the figures for (x) the current fiscal period and (y) the current
year-to-date with thefigures for the same fiscal period and year-to-date period of the immediately preceding
fiscal year. Thefinancial statements shall be accompanied by a Compliance Certificate.9.9. [Reserved].9.10. Other
Reports.Furnish Agent as soon as available, but in any event within ten (10) days after the issuancethereof,
copies of all annual, regular, periodic and special reports and registration statements whichBorrower may
file or be required to file, copies of any report, filing or communication with the SECunder Section 13 or
15(d) of the Exchange Act, or with any Governmental Body that may be substitutedtherefor, or with any national
securities exchange, and in any case not otherwise required to be deliveredto the Agent pursuant hereto.9.11.
Additional Information.Furnish Agent with such additional information as Agent shall reasonably request in
order toenable Agent to determine whether the terms, covenants, provisions and conditions of this Agreement93
and the Notes have been complied with by each Loan Party including, without limitation and without thenecessity of any
request by Agent, (a) copies of all environmental audits and reviews, (b) within thirty(30) days of any of the following:
notice of any Loan Partys opening of any new office or place ofbusiness or any Loan Partys closing of any existing office
or place of business, and (c) promptly uponany Loan Partys learning thereof, notice of any labor dispute to which such
Loan Party may become aparty, any strikes or walkouts relating to any of its plants or other facilities, and the expiration
of anylabor contract to which any Loan Party is a party or by which any Loan Party is bound.9.12. Projected Operating
Budget.Furnish Agent, within ninety (90) days after the end of each fiscal year of Borrower,quarter-by-quarter consolidated
and, if applicable, consolidating projected operating budgets of Borrowerfor such fiscal year (including a consolidated
and, if applicable, consolidating income statement and cashflow statement for each quarter and a balance sheet as at the end
of the last quarter and proposed businessplan for such fiscal year), such projections to be accompanied by a certificate
signed by an AuthorizedOfficer of Borrower to the effect that such projections have been prepared on the basis of sound
financialplanning practice consistent with past budgets and financial statements and that such officer has noreason to
question the reasonableness of any material assumptions on which such projections wereprepared. In addition, Borrower will
provide Agent with such projections and business plans as andwhen requested by Agent in connection with any request by
Borrower to increase or permanently reducethe amount of Advances available under this Agreement.9.13. [Reserved].9.14.
Notice of Suits, Events.Furnish Agent with prompt written notice of (i) any lapse or other termination of any Consentissued
to any Loan Party by any Governmental Body or any other Person that is material to the operationof such Loan Partys business,
(ii) any refusal by any Governmental Body or any other Person to renewor extend any such Consent; and (iii) copies of
any periodic or special reports filed by any Loan Partywith any Governmental Body or Person, if such reports indicate any
material change in the business,operations, affairs or condition of any Loan Party, or if copies thereof are requested
by Agent or anyLender, (iv) copies of any material notices and other communications from any Governmental Body orPerson
which specifically relate to any Loan Party.9.15. ERISA Notices and Requests.Furnish Agent with written notice promptly
after any Loan Party or any member of theControlled Group knows or has reason to know that (i) a Termination Event has
occurred, together with awritten statement describing such Termination Event and the action, if any, which any Loan Party
ormember of the Controlled Group has taken, is taking, or proposes to take with respect thereto and, whenknown, any action
taken or threatened by the Internal Revenue Service, Department of Labor or PBGCwith respect thereto, (ii) a prohibited
transaction (as defined in Sections 406 of ERISA and 4975 of theCode) has occurred, together with a written statement
describing such transaction and the action whichsuch Loan Party or any member of the Controlled Group has taken, is taking
or proposes to take withrespect thereto, (iii) a funding waiver request has been filed with respect to any Pension Benefit
Plan,together with all communications received by any Loan Party or any member of the Controlled Groupwith respect to
such request, (iv) a Multiemployer Plan has been terminated or the administrator or plansponsor of a Multiemployer Plan has
provided notice to any Loan Party or any member of the ControlledGroup of an intent to terminate a Multiemployer Plan.94
9.16. [Reserved].9.17. [Reserved].9.18. Beneficial Ownership Documentation.Promptly following
any request therefor, provide to Agent or any Lender information anddocumentation reasonably
requested by Agent or any Lender for purpose of compliance with applicableknow your customer
and anti-money-laundering rules and regulations, including, without limitation,the USA PATRIOT
Act and the Beneficial Ownership Regulation.9.19. [Reserved].9.20. Additional Documents. Execute
and deliver to Agent, upon request, such documents andagreements as Agent may, from time
to time, reasonably request to carry out the purposes, terms orconditions of this Agreement.X.
EVENTS OF DEFAULT.The occurrence of any one or more of the following events shall constitute
an Event ofDefault:10.1. (a) Failure by Borrower to pay any principal of any Advance when due
in accordancewith the terms hereof; (b) failure by Borrower to pay any amount payable to Issuer
when due inreimbursement of any drawing under a Letter of Credit; or (c) failure by Borrower
to pay any interest orpremium on any Advance, or any other amount payable hereunder or under
any other Loan Documentother than those specified in clauses (a) and (b) above, within three
(3) Business Days after any suchinterest or other amount becomes due in accordance with the
terms hereof or thereof;10.2. (i) Failure by any Loan Party to perform, keep or observe any
provision of Sections4.2(a), 4.10, 4.11, 6.2(ii) (only with respect to Borrower), 6.4, 6.8,
6.11, Article VII, 9.5(a), 9.7, 9.8, or9.12, or (ii) any representation or warranty made by
any Loan Party in this Agreement or any other LoanDocument or in any certificate, document or
financial or other statement furnished at any time inconnection herewith or therewith shall prove
to have been misleading in any material respect (except thatsuch materiality qualifier shall
not be applicable to any representations and warranties that already arequalified or modified
by materiality in the text thereof) on the date when made or deemed to have beenmade;10.3.
[reserved];10.4. Issuance of a notice of Lien, levy, assessment, injunction or attachment against
amaterial portion of any Loan Partys property which is not stayed or lifted within sixty
(60) days;10.5. Failure or neglect of any Loan Party to perform, keep or observe any term,
provision,condition, covenant contained in this Agreement, or contained in any other Loan Document,
now orhereafter entered into between such Loan Party, Agent and/or any Lender (to the extent
such breach isnot otherwise embodied in any other provision of this Article X for which a
different grace or cure periodis specified or which constitute an immediate Event of Default
under this Agreement or the LoanDocuments), and such failure shall continue unremedied for
thirty (30) days after the earlier of (x) thedate on which such failure shall first become known
to Borrower or (y) the date on which written noticethereof is given to Borrower by Agent;95
10.6. Any judgment or judgments are rendered or judgment liens filed against any Loan Partyfor an aggregate amount in excess
of $10,000,000 (except to the extent fully covered (other than to theextent of customary deductibles) by insurance pursuant
to which the insurer has not denied coverage)which within thirty (30) days of such rendering or filing is not either
satisfied, stayed or discharged ofrecord;10.7. Any Loan Party or any Restricted Subsidiary shall (i) apply for, consent to or
suffer theappointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or similarfiduciary of
itself or of all or a substantial part of its property, (ii) make a general assignment for thebenefit of creditors, (iii)
commence a voluntary case under any state or federal bankruptcy laws (as nowor hereafter in effect), (iv) be adjudicated a
bankrupt or insolvent, (v) file a petition seeking to takeadvantage of any other law providing for the relief of debtors,
(vi) acquiesce to, or fail to have dismissed,within sixty (60) days, any petition filed against it in any involuntary case
under such bankruptcy laws, or(vii) take any action for the purpose of effecting any of the foregoing;10.8. Any Loan Party
or any Subsidiary of a Loan Party shall admit in writing its inability, orbe generally unable, to pay its debts as they
become due or cease operations of its present business;10.9. The validity or enforceability of any Loan Document shall at any
time for any reason(other than solely as the result of an action or failure to act on the part of Agent) be declared to be
nulland void, or a proceeding shall be commenced by a Loan Party or its Subsidiaries, or by anyGovernmental Body having
jurisdiction over a Loan Party or its Subsidiaries, seeking to establish theinvalidity or unenforceability thereof, or a Loan
Party or its Subsidiaries shall deny that such Loan Partyor its Subsidiaries has any liability or obligation purported to be
created under any Loan Document;10.10. (a) Any Loan Party or Restricted Subsidiary shall fail to make any payment (whether
ofprincipal or interest and regardless of amount) in respect of any Material Indebtedness when and as thesame shall become due
and payable (after giving effect to any applicable grace period), or (b) any breachor default with respect to any Material
Indebtedness occurs by any Loan Party or Restricted Subsidiary,in each case beyond the grace period, if any, provided therefor,
if the effect of such breach or default is tocause, or to permit the holder or holders of that Material Indebtedness (or a
trustee on behalf of suchholder or holders) to cause, that Material Indebtedness to become or be declared due and payable
(orredeemable) prior to its stated maturity;10.11. Any material provision of this Agreement shall, for any reason, cease to
be valid andbinding on any Loan Party, or any Loan Party shall so claim in writing to Agent;10.12. Termination or breach
of any Guaranty or similar agreement executed and delivered toAgent in connection with the Obligations of Borrower, or if any
Guarantor of the Obligations attempts toterminate, challenges the validity of, or its liability under, any such Guaranty
or similar agreement;10.13. Any Change of Control shall occur;10.14. The Guaranty or any other Loan Document that purports to
create a Lien, shall, for anyreason, fail or cease to create a valid and perfected and, (except to the extent of Permitted
Encumbranceswhich are non-consensual Permitted Encumbrances, permitted purchase money Liens or the interests oflessors
under Capital Leases) first priority Lien on the Collateral covered thereby, except (a) as a resultof a disposition of the
applicable Collateral in a transaction permitted under this Agreement, (b) as theresult of an action or failure to act on
the part of Agent or (c) to the extent the Collateral secured therebyhas a fair market value not in excess of $5.000,000.96
10.15. An event or condition specified in Section 7.13 or Section 9.15
shall occur or exist withrespect to any Plan and, as a result of such
event or condition, together with all other such events orconditions,
any Loan Party or any member of the Controlled Group shall incur or
would be reasonablylikely to incur, a liability to a Plan or the PBGC
(or both) which would have a Material Adverse Effect.XI. LENDERS RIGHTS
AND REMEDIES AFTER DEFAULT.11.1. Rights and Remedies.Upon the occurrence
and during the continuance of (i) an Event of Default pursuant to
Section10.7 or 10.8, all Obligations shall be immediately due and payable
and the obligation of Lenders to makeAdvances shall be deemed terminated,
or (ii) the other Events of Default specified in Article X, and atany
time thereafter (such Event of Default not having previously been
waived in accordance with thisAgreement), Agent may (but shall not be
obligated to) (and at the direction of the Required Lendersshall) upon
written notice to the Loan Parties, declare all of the Obligations
immediately due and payableand terminate this Agreement and terminate the
obligation of Lenders to make Advances and (iii) a filingof a petition
against any Loan Party in any involuntary case under any state or federal
bankruptcy laws,the obligation of Lenders to make Advances hereunder
shall be terminated other than as may be requiredby an appropriate
order of the bankruptcy court having jurisdiction over the Loan Parties.
Upon theoccurrence and continuation of any Event of Default, Agent
shall have the right to exercise any and allother rights and remedies
provided for herein, under the UCC and at law or equity generally,
including,without limitation, the right to foreclose the security interests
granted herein and to realize upon anyCollateral by any available
judicial procedure and/or to take possession of and sell any or all of
theCollateral with or without judicial process. In furtherance of such
exercise Agent may enter any LoanPartys premises or other premises
without legal process and without incurring liability to such LoanParty
therefor, and Agent may thereupon, or at any time thereafter, in its
discretion without notice ordemand, take the Collateral and remove the same
to such place as Agent may deem advisable and Agentmay require such Loan
Party to make the Collateral available to Agent at a convenient place.
With orwithout having the Collateral at the time or place of sale, Agent
may sell the Collateral, or any partthereof, at public or private
sale, at any time or place, in one or more sales, at such price or
prices, andupon such terms, either for cash, credit or future delivery,
as Agent may elect. Except as to that part ofthe Collateral which is
perishable or threatens to decline speedily in value or is of a type
customarily soldon a recognized market, Agent shall give the Loan Parties
reasonable notification of such sale or sales, itbeing agreed that
in all events written notice mailed to the Loan Parties at least ten
(10) days prior tosuch sale or sales is reasonable notification. At any
public sale Agent or any Lender may bid for andbecome the purchaser, and
Agent, any Lender or any other purchaser at any such sale thereafter
shallhold the Collateral sold absolutely free from any claim or right
of whatsoever kind, including any equityof redemption and such right
and equity are hereby expressly waived and released by each Loan Party.Agent
may specifically disclaim any warranties of title or the like at
any sale of Collateral. In connectionwith and solely during the duration
of the exercise of the foregoing remedies, Agent is grantedpermission
to use without charge all of each Loan Partys trademarks, trade styles,
trade names, patents,patent applications, and other proprietary
rights which are used in connection with the foregoing.11.2. Application
of Proceeds.The proceeds realized from the sale of any Collateral
shall be applied as follows: first, to thereasonable costs, expenses
and attorneys fees and expenses incurred by Agent for collection and
foracquisition, completion, protection, removal, storage, sale and delivery
of the Collateral and for any otheramounts due to Agent; second, to
interest due upon any of the Swingline Loans; third, to the principal
ofthe Swingline Loans; fourth, to fees payable in connection with this
Agreement; fifth, to interest dueupon any of the Obligations; sixth,
ratably, to (i)furnish to Agent cash collateral in an amount not less97
than 105% of the Letter of Credit Reserve, such cash collateral arrangements to be in form and substancereasonably satisfactory
to Agent and (ii) ratably, to the principal of the Obligations, includingLender-Provided Hedges and Bank Product Obligations
up to any including the amount most recentlyprovided to the Agent pursuant to Section 2.17; and seventh, ratably, to the
other Obligations. All suchpayments hereunder shall be shared ratably among the Lenders holding such Obligations based
upontheir respective Commitment Percentages. If any deficiency shall arise, each Loan Party shall remainliable to Agent and
Lenders therefor. If it is determined by an authority of competent jurisdiction that adisposition by Agent did not occur in a
commercially reasonable manner, Agent may obtain a deficiencyjudgment for the difference between the amount of the Obligation
and the amount that a commerciallyreasonable sale would have yielded. Agent will not be considered to have offered to retain
the Collateralin satisfaction of the Obligations unless Agent, subject to Section 15.2(b) hereof, has entered into awritten
agreement with Loan Parties to that effect.11.3. Agents Discretion.Agent (acting with the consent of the Required Lenders or
all Lenders to the extent required bySection 15.2(b)) shall have the right in its sole discretion to determine which rights,
Liens, securityinterests or remedies Agent may at any time pursue, relinquish, subordinate, or modify or to take anyother
action with respect thereto and such determination will not in any way modify or affect any ofAgents or Lenders rights
hereunder; provided, however, that, in the absence of such direction, Agentmay (but shall not be obligated or have any duty to)
take such action, or refrain from taking such action,with respect to any Event of Default as it shall deem advisable and in
the best interests of the Lendersand the Issuer and solely to the extent permitted hereunder or pursuant to the other Loan
Documents;provided, further, that Agent shall not be obligated to follow any direction by Required Lenders if Agentreasonably
determines that such direction is in conflict with any provisions hereunder or under anyApplicable Law, and Agent shall not,
under any circumstances, be liable to any Lenders, the Issuer,Borrower, the Guarantors or any other Person for following the
direction of Required Lenders. At alltimes, if Agent acting at the direction of the Required Lenders advises the Lenders
that it wishes toproceed in good faith with respect to any of its rights and remedies, each of the Lenders will cooperate
ingood faith with respect to such rights and remedies and will not unreasonably delay the enforcement ofthe security interests
provided for herein.11.4. Setoff.In addition to any other rights which Agent, any Lender or the Issuer may have under
ApplicableLaw, upon the occurrence and during the continuation of an Event of Default hereunder, Agent, suchLender and such Issuer
and their Affiliates shall have a right to apply any Loan Partys property held byAgent, such Lender or such Issuer and their
Affiliates to reduce the Obligations. If any party (or itsAffiliate) exercises the right of setoff provided for hereunder, such
party shall be obligated to share anysuch setoff in accordance with Section 2.13(d).11.5. Rights and Remedies Not Exclusive.The
authority to enforce rights and remedies under this Agreement and other Loan Documentsagainst Borrower or any Guarantor
shall be vested in, and all actions and proceedings at law inconnection with such enforcement shall be instituted and
maintained by, Agent for the benefit of all theLenders and the Issuer. The enumeration of the foregoing rights and remedies is
not intended to beexhaustive and the exercise of any right or remedy shall not preclude the exercise of any other right
orremedies provided for herein or otherwise provided by Applicable Law, all of which shall be cumulativeand not alternative.98
XII. WAIVERS AND JUDICIAL PROCEEDINGS.12.1. Waiver of Notice.Each Loan Party hereby
waives notice of non-payment of any of the Receivables, demand,presentment, protest
and notice thereof with respect to any and all instruments, notice of acceptancehereof,
notice of loans or advances made, credit extended, Collateral received or
delivered, or any otheraction taken in reliance hereon, and all other demands and
notices of any description, except such as areexpressly provided for herein to the
extent not prohibited by law.12.2. Delay.No delay or omission on Agents or any Lenders
part in exercising any right, remedy or optionshall operate as a waiver of such or
any other right, remedy or option or of any default.12.3. Jury Waiver.EACH PARTY TO
THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TOTRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (A) ARISINGUNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENTEXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY
WAY CONNECTEDWITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANYOF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, ORTHE TRANSACTIONS RELATED
HERETO OR THERETO IN EACH CASE WHETHER NOWEXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORTOR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT ANY SUCH
CLAIM,DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUTA
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINALCOUNTERPART OR A COPY
OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCEOF THE CONSENTS OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIALBY JURY.XIII. EFFECTIVE DATE AND
TERMINATION.13.1. Term.This Agreement, which shall inure to the benefit of and shall be
binding upon the respectivesuccessors and permitted assigns of each Loan Party, Agent
and each Lender, shall become effective onthe date hereof and shall continue in full
force and effect until the Termination Date. Borrower maypermanently reduce the Maximum
Revolving Advance Amount, at any time upon ten (10) days priorwritten notice to
Agent, upon payment in full in cash of any Obligations in excess of the maximumamount
of Revolving Advances then permitted under Section 2.1 and payment of all amounts
which maybe owed pursuant to Section 15.5(b), after giving effect to the reduced
Maximum Revolving AdvanceAmount; provided that the Maximum Revolving Advance Amount
may not be reduced to an amount lessthan $25,000,000 except in connection with the
termination of all Commitments and the payment in fullin cash of all Obligations.99
13.2. Termination.The termination of the Agreement shall not affect any
Loan Partys, Agents or any Lendersrights, or any of the Obligations
having their inception prior to the effective date of such termination,
andthe provisions hereof shall continue to be fully operative
until all transactions entered into, rights orinterests created or
Obligations have been fully disposed of, concluded or liquidated. The
securityinterests, Liens and rights granted to Agent and Lenders
hereunder and the financing statements filedhereunder shall continue
in full force and effect, notwithstanding the termination of this
Agreement orthe fact that Borrowers Account may from time to time be
temporarily in a zero or credit position, untilall of the Obligations
of the Loan Parties have been paid or performed in full after the
termination of thisAgreement or the Loan Parties have furnished Agent
and Lenders with an indemnification satisfactory toAgent and Lenders
with respect thereto. Accordingly, each Loan Party waives any
rights which it mayhave under Section 9-513(c) of the UCC to demand
the filing of termination statements with respect tothe Collateral,
and Agent shall not be required to send such termination statements
to any Loan Party, orto file them with any filing office, unless and
until this Agreement shall have been terminated inaccordance with
its terms and all Obligations (other than Obligations exclusively
with respect to theLetter of Credit Reserve if Borrower shall have
furnished Agent with cash collateral in an amount notless than 105%
of the Letter of Credit Reserve) paid in full in cash in immediately
available funds. Allrepresentations, warranties, covenants, waivers
and agreements contained herein or in any LoanDocument shall survive
termination hereof until all Obligations are paid or performed in
full in cash, assuch representations and warranties may change from
time to time as contemplated in Section 8.2.XIV. REGARDING AGENT.14.1.
Appointment.Each Lender hereby irrevocably appoints and designates
HSBC to act as Agent for such Lenderunder this Agreement and the
other Loan Documents. Each Lender hereby irrevocably authorizes
Agentto take such action on its behalf under the provisions of this
Agreement and the other Loan Documentsand to exercise such powers and
to perform such duties hereunder and thereunder as are specificallydelegated
to or required of Agent by the terms hereof and thereof and
such other powers as arereasonably incidental thereto and Agent shall
hold all Collateral, payments of principal and interest, fees(except
the fees set forth in Section 3.4, the Fee Letter, and the Third
Amendment Effective Date FeeLetter), charges and collections (without
giving effect to any collection days) received pursuant to thisAgreement,
for the ratable benefit of Lenders. Agent may perform any of its
duties hereunder by orthrough its agents or employees. As to any
matters not expressly provided for by this Agreement(including without
limitation, collection of the Notes), Agent shall not be required
to exercise anydiscretion or take any action, but shall be required
to act or to refrain from acting (and shall be fullyprotected in
so acting or refraining from acting) upon the written instructions
of the Required Lenders orall Lenders to the extent required under Section
15.2(b), and such instructions shall be binding; provided,however,
that Agent shall not be required to take any action that, in
its opinion or the opinion of itscounsel, may expose Agent to
liability or that is contrary to any Loan Document or Applicable
Law,including, for the avoidance of doubt, any action that may be in
violation of the automatic stay or thatmay effect a forfeiture,
modification or termination of a property interest in violation of any
applicablebankruptcy/insolvency laws and Agent shall in all cases be
fully justified in failing or refusing to actunder this Agreement or
any other Loan Document unless it first receives further assurances
of itsindemnification from the Lenders that Agent reasonably believes
it may require, including prepayment ofany related expenses and any
other protection it requires against any and all costs, expenses
andliabilities it may incur in taking or continuing to take any such
discretionary action at the direction of theRequired Lenders.100
Unless otherwise consented to in writing by Agent (acting at the direction
of the RequiredLenders), no Lender or Issuer, individually or together
with any other Lenders or the Issuer, shall havethe right, nor shall it,
exercise or enforce any of the rights, powers or remedies which Agent is
authorizedto exercise or enforce under this Agreement or any of the other
Loan Documents.14.2. Nature of Duties.Agent shall have no duties, obligations
or responsibilities except those expressly set forth in thisAgreement and
the other Loan Documents, including, without limitation, any security
agreements,documents or instruments executed in connection therewith, and its
duties thereunder shall beadministrative in nature only, whether or not a
Default or Event of Default has occurred and iscontinuing. None of Agent, any
Lender, or the Issuer nor any of their respective officers, directors,employees
or agents shall be (i) liable for any action taken or omitted by them as
such hereunder or inconnection herewith, unless caused by their gross
negligence or willful misconduct (as determined by acourt of competent
jurisdiction in a final and non-appealable judgment), or (ii) responsible in
any mannerfor (A) any recitals, statements, representations or warranties
made by any Loan Party or any officerthereof contained in this Agreement or
in any of the Loan Documents, or in any certificate, report,statement or
other document referred to or provided for in, or received by Agent under
or in connectionwith, this Agreement or any of the Loan Documents, or (B) the
value, validity, effectiveness,genuineness, enforceability or sufficiency
of this Agreement or any of the Loan Documents, or of theCollateral held
by Agent hereunder, (C) any failure of any Loan Party to perform their
respectiveobligations hereunder, (D) the validity, perfection, priority or
enforceability of the Liens in any of theCollateral, whether impaired by
operation of law or by reason of any action or omission to act on Agentspart
hereunder, or (E) the validity of the title of Borrower to the Collateral,
insuring the Collateral or thepayment of taxes, charges, assessments or Liens
upon the Collateral or otherwise as to the maintenanceof the Collateral.
Agent shall not be responsible for, have any duty or be under any
obligation to anyLender to ascertain or to inquire as to (i) any statement,
warranty or representation made in or inconnection with the Agreement or any
other Loan Document, (ii) the contents of any certificate, report orother
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) theobservance or performance of any of the covenants or
agreements contained in, or terms or conditions of,this Agreement or any of
the Loan Documents, including the satisfaction of any conditions precedent
setforth in this Agreement, other than to confirm receipt of items expressly
required to be delivered toAgent, or the occurrence of any Default
or 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) to inspect the properties, books or
records of any Loan Party. Agent shallnot have any duty to disclose, and shall
not be liable for the failure to disclose, except as expressly setforth in
this Agreement and in the other Loan Documents, any information relating
to Borrower or any ofits Affiliates that is communicated to or obtained by
Agent or any of its Affiliates in any capacity. Agentshall not be liable
for any damages arising for the use by unintended recipients of any information
orother materials distributed by it through telecommunications, electronic
or other informationtransmission systems in connection with this Agreement
or the other Loan Documents or the transactionscontemplated thereby.
In no event shall Agent be required to expend or risk any of its own funds
orotherwise incur any liability, financial or otherwise, in the performance
of its duties under the LoanDocuments or in the exercise of any of its
rights or powers under this Agreement or the other LoanDocuments. The
duties of Agent as with respect to the Advances shall be mechanical and
administrativein nature; Agent shall not have by reason of this Agreement
a fiduciary relationship in respect of anyLender; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as
toimpose upon Agent any obligations in respect of this Agreement except as
expressly set forth herein.Use of the term agent in the Agreement or in any
other Loan Documents (or any other similarterm) with reference to Agent does
not connote (and is not intended to connote), any fiduciary or other101
implied (or express) obligation arising under agency doctrine of
any applicable law. Instead such term isused as a matter of market
custom, and is intended to create or reflect only an administrative
relationshipbetween the contracting parties.Agent shall not incur
any liability for not performing any act or fulfilling any duty,
obligation orresponsibility hereunder by reason of any occurrence
beyond the control of Agent (including but notlimited to any act or
provision of any present or future law or regulation or Governmental
Body, any actof God or war, civil unrest, local or national disturbance
or disaster, any act of terrorism, or theunavailability of the
Federal Reserve Bank wire or facsimile or other wire or communication
facility).14.3. Lack of Reliance on Agent and Resignation.(a)
Independently and without reliance upon Agent, the Issuer or any
other Lender,each Lender has made and shall continue to make (i)
its own independent investigation of the financialcondition and
affairs of each Loan Party in connection with the making and
the continuance of theAdvances hereunder and the taking or not taking
of any action in connection herewith, and (ii) its ownappraisal
of the creditworthiness of each Loan Party. Except as set forth in
Section 14.9, Agent shallhave no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with
anycredit or other information with respect thereto, whether coming
into its possession before making of theAdvances or at any time
or times thereafter. Agent shall not be responsible to any Lender
for anyrecitals, statements, information, representations or
warranties herein or in any agreement, document,certificate or a
statement delivered in connection with or for the execution,
effectiveness, genuineness,validity, enforceability, collectability or
sufficiency of this Agreement or any other Loan Document, or ofthe
financial condition of any Loan Party, or be required to make any
inquiry concerning either theperformance or observance of any of the
terms, provisions or conditions of this Agreement, the Notes,the
Loan Documents or the financial condition of any Loan Party, or the
existence of any Event ofDefault or any Default.(b) Any entity into
which Agent in its individual capacity may be merged orconverted
or with which it may be consolidated, or any corporation resulting
from any merger,conversion or consolidations which Agent in its
individual capacity may be party, or any corporation towhich
substantially all of the corporate trust or agency business of Agent
in its individual capacity maybe transferred, shall be Agent under
this Agreement without further action.(c) Agent may at any time resign
on thirty (30) days written notice to each ofLenders, the Issuer
and Borrower (the Resignation Effective Date) and upon such
resignation, theRequired Lenders will promptly designate a successor
Agent reasonably satisfactory to Borrower. If nosuch successor Agent
is appointed at the end of such thirty (30) day period, Agent
may (but shall not beobligated to) designate one of the Lenders
as a successor Agent, subject to the acceptance of suchLender;
provided that, if no Lender accepts appointment as a successor
Agent, then Agent shall beentitled to apply to a court of competent
jurisdiction for the appointment of a successor Agent or forother
appropriate relief. The costs and expenses (including its attorneys
fees and expenses) incurred byAgent in connection with such proceeding
shall be paid by the Lenders.(d) With effect from the Resignation
Effective Date, (i) the retiring Agent shall bedischarged from
its duties and obligations under this Agreement and other Loan
Documents and (ii)except for any indemnity payments owed to the retiring
or removed Agent, all payments, communicationsand determinations
provided to be made by, to or through Agent shall instead be made
by or to eachLender and the Issuer directly, until such time,
if any, a successor Agent has been appointed as providedfor above.
Upon the acceptance of a successors appointment as Agent hereunder,
such successor shallsucceed to and become vested with all of the
rights, powers, privileges and duties of the retiring or102
removed Agent (other than any rights to indemnity payments owed to the
retiring Agent). Until asuccessor Agent is appointed, the retiring
Agent shall continue to hold the Liens on the Collateral onbehalf
of the Lenders, Issuer and Swingline Lender, but otherwise shall
be discharged from all of itsother duties and obligations under this
Agreement and other Loan Documents as of the ResignationEffective
Date. Notwithstanding the Resignation Effective Date, all rights
of the retiring Agent (and anysub-agent) to indemnification by
Borrower and Lenders shall continue in effect for the benefit of
suchretiring Agent, its sub-agents and their Indemnitees in respect
of any action taken or omitted to be takenby any of them while the
retiring Agent was acting as Agent. After Agents resignation as
Agent, theprovisions of this Article XIV shall inure to its benefit
as to any actions taken or omitted to be taken by itwhile it was
Agent under this Agreement.14.4. Certain Rights of Agent.If Agent
shall request instructions from Lenders with respect to any act or
action (includingfailure to act) in connection with this Agreement
or any other Loan Document, Agent shall be entitled torefrain from
such act or taking such action unless and until Agent shall have
received written instructionsfrom the Required Lenders; and Agent
shall not incur liability to any Person by reason of so refraining.Without
limiting the foregoing, Lenders shall not have any right of
action whatsoever against Agent as aresult of its acting or refraining
from acting hereunder in accordance with the instructions of
theRequired Lenders or all Lenders as required by Section 15.2(b).Agent
shall not have any duty to take any discretionary action or
exercise any discretionarypower, except discretionary rights and
powers expressly contemplated by the Agreement that Agent isrequired
to exercise and only so long as so directed in writing to take such
discretionary action by theRequired Lenders provided, however,
that Agent shall not be required to take any action that, in itsopinion
or the opinion of its counsel, may expose Agent to liability
or that is contrary to any LoanDocument or Applicable Law, including,
for the avoidance of doubt, any action that may be in violationof
the automatic stay or that may effect a forfeiture, modification or
termination of a property interest inviolation of any applicable
bankruptcy/insolvency laws and Agent shall in all cases be fully
justified infailing or refusing to act under the Agreement or any
other Loan Document unless it first receives furtherassurances of
its indemnification from the Lenders that Agent reasonably believes
it may require,including prepayment of any related expenses and any
other protection it requires against any and allcosts, expenses and
liabilities it may incur in taking or continuing to take any such
discretionary action atthe direction of the Required Lenders.14.5.
Reliance.Agent shall be entitled to conclusively rely, and shall be
fully protected in and shall not incur anyliability for relying,
upon any note, writing, resolution, notice, request, consent,
statement, certificate,instrument, teletype, cablegram, order,
document or other writing (including any electronic or telecopiermessage,
internet or intranet website posting or other distribution)
in good faith believed by it to begenuine and correct and to have
been signed, sent or made by the proper Person or entity, and,
withrespect to all legal matters pertaining to this Agreement and
the other Loan Documents and its dutieshereunder, upon advice of
counsel selected by it. Agent also may rely upon any statement made
to itorally or by telephone and believed by it to have been made by
the proper Person, and shall not incur anyliability for relying
thereon. In determining compliance with any condition to the making of
anyAdvance, Agent may presume that such condition is satisfactory to
such Lender or Issuer unless Agentreceives notice to the contrary
from such Lender or Issuer prior to the making of such Advance.Agent
may perform any and all of its duties and exercise its rights
and powers hereunder or underany other Loan Document by or through
any one or more sub-agents or attorneys-in-fact appointed by103
Agent. Agent and any such sub-agent or attorney-in-fact may perform any and all of its duties andexercise its rights and powers
by or through their respective Related Parties. The exculpatory provisionsof the Agreement shall apply to any such sub-agent
or attorney-in-fact. Agent shall not be responsiblefor the negligence or misconduct of any sub-agent or attorney-in-fact
except to the extent that a court ofcompetent jurisdiction determines in a final and non-appealable judgment that Agent acted
with grossnegligence or willful misconduct in the selection of such sub-agent or attorney-in-fact.Agent shall be entitled to
take any action or refuse to take any action which Agent regards asnecessary for Agent to comply with any Applicable Law,
regulation or court order. Agent may consultwith legal counsel, independent accountants and other experts selected by it, and
shall not be liable forany action taken or not taken by it in accordance with the advice of any such counsel, accountants
orexperts.14.6. Notice of Default.Except for actual knowledge of non-payment of the Obligations, Agent shall not be deemed
tohave knowledge or notice of the occurrence of any Default or Event of Default hereunder or under theLoan Documents, except
with respect to defaults in the payment of principal, interest and fees required tobe paid to Agent for the account of the
Lenders, unless Agent has received written notice from a Lenderor any Loan Party referring to this Agreement or the other Loan
Documents, describing such Default orEvent of Default and stating that such notice is a notice of default or notice of event
of default. Inthe event that Agent receives such a notice, Agent shall give prompt notice thereof to Lenders. Agentmay take
such action with respect to such Default or Event of Default (including, without limitation, theinstitution of the Default
Rate pursuant to Section 3.1 hereof) as shall be reasonably directed by theRequired Lenders in accordance with the terms
of the Loan Documents; provided that, unless and untilAgent shall have received such directions, Agent may (but shall not be
obligated to) take such action, orrefrain from taking such action, with respect to such Default or Event of Default (including,
withoutlimitation, the institution of the Default Rate pursuant to Section 3.1 hereof) as it shall deem advisable inthe best
interests of Lenders.14.7. Indemnification.To the extent Agent is not reimbursed and indemnified by the Loan Parties for
any amountrequired under Section 15.5(a) to be paid by the Loan Parties to Agent, each Lender will severallyreimburse and
indemnify Agent in proportion to its respective portion of the Advances (or, if noAdvances are outstanding, according to its
Commitment Percentage), for such unpaid amount (includingany such unpaid amount in respect of a claim asserted by such Lender);
provided that Lenders shall notbe liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments,suits, costs, expenses or disbursements resulting from the indemnified partys bad faith, gross negligenceor
willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealablejudgment); and provided
further, that the unreimbursed expense or indemnified loss, claim, damage,liability or related expense, as the case may be,
was incurred by or asserted against Agent in its capacityas such.14.8. Agent in its Individual Capacity.With respect to
the obligation of Agent to lend under this Agreement, the Advances made by itshall have the same rights and powers hereunder
as any other Lender and as if it were not performing theduties as Agent specified herein; and the term Lender or any similar
term shall, unless the contextclearly otherwise indicates, include Agent in its individual capacity as a Lender. Agent and
its Affiliatesmay accept deposits from, lend money to, own securities of, act as the financial advisor or in any other104
advisory capacity for, and generally engage in any kind of business with any Loan Party as if it were notperforming the duties
specified herein, and may accept fees and other consideration from the LoanParties for services in connection with this
Agreement or otherwise without having to account for thesame to Lenders. Each Loan Party agrees to pay to Agent, for each
of their own account, the feespayable in the amounts and at the times set forth in the Fee Letter and the Third Amendment
EffectiveDate Fee Letter, as applicable.14.9. Delivery of Documents.To the extent Agent receives documents and information
from the Loan Parties pursuant toSections 9.7, 9.8, and 9.12, Agent will promptly furnish such documents and information to
Lenders.14.10. Loan Parties Undertaking to Agent.Without prejudice to its obligations to Lenders under the other provisions
of this Agreement,each Loan Party hereby undertakes with Agent to pay to Agent from time to time on demand all amountsfrom
time to time due and payable by it for the account of Agent or Lenders or any of them pursuant tothis Agreement to the
extent not already paid. Any payment made pursuant to any such demand shall protanto satisfy such Loan Partys obligations to
make payments for the account of Lenders or the relevantone or more of them pursuant to this Agreement.14.11. Bankruptcy
Proceedings.In case of any bankruptcy or other insolvency proceeding involving Borrower (a BankruptcyProceeding), Agent shall
be entitled, but not obligated to, to intervene in such Bankruptcy Proceeding to(a) file and prove a claim for the whole
amount of principal, interest and unpaid fees in respect of theRevolving Advances, issued Letters of Credit and all other
Obligations that are owing and unpaid underthe terms of this Agreement and other Loan Documents and to file such documents
as may be necessaryor advisable in order to have the claims of the Lenders, the Issuer and Agent (including any claim
forreasonable compensation, expenses, disbursements and advances of any of the foregoing entities andtheir respective agents,
counsel and other advisors) allowed in such Bankruptcy Proceedings; and (b) tocollect and receive any monies or other
property payable or deliverable on account of any such claimsand to distribute the same to the Lenders and the Issuer under
the terms of this Agreement. Further, anycustodian, receiver, assignee, trustee, liquidator or similar official in any such
Bankruptcy Proceeding is(i) authorized to make payments or distributions in a Bankruptcy Proceeding directly to Agent on
behalfof all of the Lenders or the Issuer to whom any amounts are owed under this Agreement and other LoanDocuments, unless
Agent expressly consents in writing to the making of such payments or distributionsdirectly to such Lenders and the Issuer;
and (ii) required to pay to Agent any amount due for thereasonable compensation, expenses, disbursements and advances of
Agent and its agents and counsel,and any other amounts due to Agent under this Agreement and other Loan Documents.14.12.
No Liability for Clean-Up of Hazardous Materials.In the event that Agent is required to acquire title to an asset for any
reason, or take anymanagerial action of any kind in regard thereto, in order to carry out any obligation for the benefit
ofanother, which in Agents sole discretion may cause Agent to be considered an owner or operatorunder the provisions of CERCLA,
or otherwise cause Agent to incur liability under CERCLA or anyother federal, state or local law, Agent reserves the right,
instead of taking such action, to either resign asAgent or arrange for the transfer of the title or control of the asset
to a court-appointed receiver. Exceptfor such claims or actions arising directly from the gross negligence, or willful
misconduct of Agent,Agent shall not be liable to any Person or entity for any environmental claims or contribution actions105
under any federal, state or local law, rule or regulation by reason of Agents actions and conduct asauthorized, empowered
and directed hereunder, including in or relating to the discharge, release orthreatened release of Hazardous Substances
into the environment. If at any time after any foreclosure onthe Collateral (or a transfer in lieu of foreclosure) upon the
exercise of remedies in accordance with theterms of this Agreement it is necessary or advisable to take possession, own,
operate or manage anyportion of the Collateral by any Person or entity other than Borrower, Agent shall appoint anappropriately
qualified Person to possess, own, operate or manage such Collateral.14.13. Certain ERISA Matters.(a) Each Lender (x)
represents and warrants, as of the date such Person became aLender party hereto, to, and (y) covenants, from the date such
Person became a Lender party hereto to thedate such Person ceases being a Lender party hereto, for the benefit of, Agent
and not, for the avoidanceof doubt, to or for the benefit of Borrower or any other Loan Party, that at least one of the
following isand will be true:(i) such Lender is not using plan assets (within the meaning of Section3(42) of ERISA or
otherwise) of one or more Benefit Plans with respect to such Lenders entrance into,participation in, administration of and
performance of the Advances, the Commitments or thisAgreement,(ii) the transaction exemption set forth in one or more PTEs,
such as PTE84-14 (a class exemption for certain transactions determined by independent qualified professional assetmanagers),
PTE 95-60 (a class exemption for certain transactions involving insurance company generalaccounts), PTE 90-1 (a class
exemption for certain transactions involving insurance company pooledseparate accounts), PTE 91-38 (a class exemption for
certain transactions involving bank collectiveinvestment funds) or PTE 96-23 (a class exemption for certain transactions
determined by in-house assetmanagers), is applicable with respect to such Lenders entrance into, participation in,
administration ofand performance of the Advances, the Commitments and this Agreement,(iii) (A) such Lender is an investment fund
managed by a QualifiedProfessional Asset Manager (within the meaning of Part VI of PTE 84-14), (B) such QualifiedProfessional
Asset Manager made the investment decision on behalf of such Lender to enter into,participate in, administer and perform
the Advances, the Commitments and this Agreement, (C) theentrance into, participation in, administration of and performance
of the Advances, the Commitments andthis 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
aresatisfied with respect to such Lenders entrance into, participation in, administration of and performanceof the Advances,
the Commitments and this Agreement, or(iv) such other representation, warranty and covenant as may be agreed inwriting
between Agent, in its sole discretion, and such Lender.(b) In addition, unless either (1) sub-clause (i) in the immediately
preceding clause(a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty andcovenant
in accordance with 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 beinga Lender party hereto, for the benefit of, Agent and not, for the avoidance
of doubt, to or for the benefitof Borrower or any other Loan Party, that Agent is not a fiduciary with respect to the
assets of suchLender involved in such Lenders entrance into, participation in, administration of and performance of106
the Advances, the Commitments and this Agreement (including in connection
with the reservation orexercise of any rights by Agent under this
Agreement, any other Loan Document or any documentsrelated hereto or
thereto).14.14. Rates.The interest rate on an Advance denominated
in Dollars may be derived from aninterest rate benchmark that may
be discontinued or is, or may in the future become, the subjectof
regulatory reform. Upon the occurrence of a Benchmark Transition
Event, Section 3.8provides a mechanism for determining an alternative
rate of interest. The Agent does not warrantor accept responsibility
for, and shall not have any liability with respect to (a) the
Benchmark, orany component definition thereof or rates referred to in
the definition thereof, or any alternative,successor or replacement
rate thereto (including any Benchmark Replacement), includingwhether
the composition or characteristics of any such alternative,
successor or replacement rate(including any Benchmark Replacement)
will be similar to, or produce the same value oreconomic equivalence
of, or have the same volume or liquidity as, the Benchmark or any
otherBenchmark prior to its discontinuance or unavailability, or (b)
the effect, implementation orcomposition of any Conforming Changes.
Agent and its affiliates or other related entities mayengage in
transactions that affect the calculation of the Benchmark, any
alternative, successor orreplacement rate (including any Benchmark
Replacement) or any relevant adjustments thereto, ineach case, in a
manner adverse to the Borrower. Agent may select information sources
orservices in its reasonable discretion to ascertain the Benchmark
or any other Benchmarkincluding any component thereof, or rates
referenced in the definition thereof, in each casepursuant to the
terms of this Agreement, and shall have no liability to the Borrower,
any Lenderor any other person or entity for damages of any kind,
including direct or indirect, special,punitive, incidental or
consequential damages, costs, losses or expenses (whether in tort,
contractor otherwise and whether at law or in equity), for any error or
calculation of any such rate (orcomponent thereof) provided by any
such information source or service.14.15. Erroneous Payments.(a)
If Agent (x) notifies a Lender, Issuer or secured party, or any
Person who hasreceived funds on behalf of a Lender, Issuer or secured
party (any such Lender, Issuer, secured party orother recipient (and
each of their respective successors and permitted assigns), a Payment
Recipient)that Agent has determined in its sole discretion (whether
or not after receipt of any notice underimmediately succeeding
clause (b)) that any funds (as set forth in such notice from Agent)
received bysuch Payment Recipient from Agent or any of its Affiliates
were erroneously or mistakenly transmittedto, or otherwise erroneously
or mistakenly received by, such Payment Recipient (whether
or not knownto such Lender, Issuer, secured party or other Payment
Recipient on its behalf) (any such funds, whethertransmitted or
received as a payment, prepayment or repayment of principal, interest,
fees, distribution orotherwise, individually and collectively, an
Erroneous Payment) and (y) demands in writing the returnof such
Erroneous Payment (or a portion thereof), such Erroneous Payment shall
at all times remain theproperty of Agent pending its return or
repayment as contemplated below in this Section 14.15 and heldin trust
for the benefit of Agent, and such Lender, Issuer or secured party shall
(or, with respect to anyPayment Recipient who received such funds
on its behalf, shall cause such Payment Recipient to)promptly, but
in no event later than two (2) Business Days thereafter (or such
later date as Agent may, inits sole discretion, specify in writing),
return to Agent the amount of any such Erroneous Payment (orportion
thereof) as to which such a demand was made, in same day funds (in
the currency so received),together with interest thereon (except
to the extent waived in writing by Agent) in respect of each dayfrom
and including the date such Erroneous Payment (or portion thereof)
was received by such PaymentRecipient to the date such amount is
repaid to Agent in same day funds at the greater of the Federal107
Funds Rate and a rate determined by Agent in accordance with
banking industry rules on interbankcompensation from time to time
in effect. A notice of Agent to any Payment Recipient under
this clause(a) shall be conclusive, absent manifest error.(b)
Without limiting immediately preceding clause (a), each Lender,
Issuer, securedparty or any Person who has received funds on
behalf of a Lender, Issuer or secured party (and each oftheir
respective successors and permitted assigns), agrees that if
it receives a payment, prepayment orrepayment (whether received
as a payment, prepayment or repayment of principal, interest,
fees,distribution or otherwise) from Agent (or any of its Affiliates)
(x) that is in a different amount than, or ona different
date from, that specified in this Agreement or in a notice of
payment, prepayment orrepayment sent by Agent (or any of its
Affiliates) with respect to such payment, prepayment orrepayment,
(y) that was not preceded or accompanied by a notice of
payment, prepayment or repaymentsent by Agent (or any of its
Affiliates), or (z) that such Lender, Issuer or secured party, or
other suchrecipient, otherwise becomes aware was transmitted,
or received, in error or by mistake (in whole or inpart), then
in each such case:(i) it acknowledges and agrees that (A) in
the case of immediatelypreceding clauses (x) or (y), an error
and mistake shall be presumed to have been made (absent
writtenconfirmation from Agent to the contrary) or (B) an error and
mistake has been made (in the case ofimmediately preceding clause
(z)), in each case, with respect to such payment, prepayment
or repayment;and(ii) such Lender, Issuer or secured party shall
(and shall cause any otherrecipient that receives funds on
its respective behalf to) promptly (and, in all events, within
two (2)Business Days of its knowledge of the occurrence of any
of the circumstances described in immediatelypreceding clauses
(x), (y) and (z)) notify Agent of its receipt of such payment,
prepayment or repayment,the details thereof (in reasonable
detail) and that it is so notifying Agent pursuant to this
Section14.15(b).(c) Each Lender, Issuer or secured party hereby
authorizes Agent to set off, net andapply any and all amounts at any
time owing to such Lender, Issuer or secured party under any
LoanDocument, or otherwise payable or distributable by Agent to
such Lender, Issuer or secured party underany Loan Document with
respect to any payment of principal, interest, fees or other
amounts, against anyamount that Agent has demanded to be returned
under immediately preceding clause (a).For the avoidance
of doubt, the failure to deliver a notice to Agent pursuant to
this Section14.15(b) shall not have any effect on a Payment
Recipients obligations pursuant to Section 14.15(a) oron whether
or not an Erroneous Payment has been made.(d) (i) In the event
that an Erroneous Payment (or portion thereof) is not recoveredby
Agent for any reason, after demand therefor in accordance
with immediately preceding clause (a),from any Lender that has
received such Erroneous Payment (or portion thereof) (and/or
from anyPayment Recipient who received such Erroneous Payment
(or portion thereof) on its respective behalf)(such unrecovered
amount, an Erroneous Payment Return Deficiency), upon Agents
notice to suchLender at any time, then effective immediately (with
the consideration therefor being acknowledged bythe parties
hereto), (A) such Lender shall be deemed to have assigned its
Advances (but not itsCommitments) with respect to which such
Erroneous Payment was made (the Erroneous PaymentImpacted Class)
in an amount equal to the Erroneous Payment Return Deficiency
(or such lesser amountas Agent may specify) (such assignment of
the Advances (but not Commitments) of the ErroneousPayment
Impacted Class, the Erroneous Payment Deficiency Assignment) (on a
cashless basis andsuch amount calculated at par plus any accrued
and unpaid interest (with the assignment fee to be waived108
by Agent in such instance)), and is hereby (together with Borrower)
deemed to execute and deliver aCommitment Transfer Supplement (or, to the
extent applicable, an agreement incorporating aCommitment Transfer
Supplement by reference pursuant to an applicable electronic platform
as to whichAgent and such parties are participants) with respect to such
Erroneous Payment Deficiency Assignment,and such Lender shall deliver
any Notes evidencing such Advances to Borrower or Agent (but the
failureof such Person to deliver any such Notes shall not affect the
effectiveness of the foregoing assignment),(B) Agent as the assignee
Lender shall be deemed to have acquired the Erroneous Payment
DeficiencyAssignment, (C) upon such deemed acquisition, Agent as the assignee
Lender shall become a Lender, asapplicable, hereunder with respect to
such Erroneous Payment Deficiency Assignment and the assigningLender shall
cease to be a Lender, as applicable, hereunder with respect to such
Erroneous PaymentDeficiency Assignment, excluding, for the avoidance
of doubt, its obligations under the indemnificationprovisions of this
Agreement and its applicable Commitments which shall survive as to such
assigningLender, (D) Agent and Borrower shall each be deemed to have
waived any consents required under thisAgreement to any such Erroneous
Payment Deficiency Assignment, and (E) Agent will reflect in theRegister
its ownership interest in the Advances subject to the Erroneous Payment
DeficiencyAssignment. For the avoidance of doubt, no Erroneous
Payment Deficiency Assignment will reduce theCommitments of any Lender
and such Commitments shall remain available in accordance with the
termsof this Agreement.(ii) Subject to Section 15.3 (but excluding, in
all events, any assignmentconsent or approval requirements (whether from
Borrower or otherwise)), Agent may, in its discretion,sell any Advances
acquired pursuant to an Erroneous Payment Deficiency Assignment and
upon receiptof the proceeds of such sale, the Erroneous Payment Return
Deficiency owing by the applicable Lendershall be reduced by the net
proceeds of the sale of such Advance (or portion thereof), and Agent
shallretain all other rights, remedies and claims against such Lender
(and/or against any recipient that receivesfunds on its respective
behalf). In addition, an Erroneous Payment Return Deficiency owing by
theapplicable Lender (x) shall be reduced by the proceeds of prepayments
or repayments of principal andinterest, or other distribution in respect
of principal and interest, received by Agent on or with respect toany
such Advances acquired from such Lender pursuant to an Erroneous
Payment DeficiencyAssignment (to the extent that any such Advances are
then owned by Agent) and (y) may, in the solediscretion of Agent, be
reduced by any amount specified by Agent in writing to the applicable
Lenderfrom time to time.(e) The parties hereto agree that (x) irrespective
of whether Agent may be equitablysubrogated, in the event that an
Erroneous Payment (or portion thereof) is not recovered from anyPayment
Recipient that has received such Erroneous Payment (or portion thereof)
for any reason, Agentshall be subrogated to all the rights and
interests of such Payment Recipient (and, in the case of anyPayment
Recipient who has received funds on behalf of a Lender, Issuer or secured
party, to the rightsand interests of such Lender, Issuer or secured
party, as the case may be) under the Loan Documents withrespect to such
amount (the Erroneous Payment Subrogation Rights) (provided that the Loan
PartiesObligations under the Loan Documents in respect of the Erroneous
Payment Subrogation Rights shall notbe duplicative of such Obligations in
respect of Advances that have been assigned to Agent under anErroneous
Payment Deficiency Assignment) and (y) an Erroneous Payment shall not
pay, prepay, repay,discharge or otherwise satisfy any Obligations
owed by Borrower or any other Loan Party; provided thatthis Section
14.15 shall not be interpreted to increase (or accelerate the due date
for), or have the effectof increasing (or accelerating the due date
for), the Obligations of Borrower relative to the amount(and/or timing
for payment) of the Obligations that would have been payable had such
ErroneousPayment not been made by Agent; provided, further, that for
the avoidance of doubt, immediatelypreceding clauses (x) and (y) shall
not apply to the extent any such Erroneous Payment is, and solely109
with respect to the amount of such Erroneous Payment that is, comprised of funds received by Agentfrom Borrower for the purpose
of making such Erroneous Payment.(f) To the extent permitted by applicable law, no Payment Recipient shall assert anyright
or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim,counterclaim, defense or right of set-off
or recoupment with respect to any demand, claim orcounterclaim by Agent for the return of any Erroneous Payment received,
including, without limitation,or waiver of, any defense based on discharge for value or any similar doctrine.(g) Each partys
obligations, agreements and waivers under this Section 14.15 shallsurvive the resignation or replacement of Agent, any
transfer of rights or obligations by, or thereplacement of, a Lender or Issuer, the termination of the Commitments and/or the
repayment,satisfaction or discharge of all Obligations (or any portion thereof) under any other Loan Document.14.16. Joint
Lead Arrangers and Joint Bookrunners. Each of the Joint Lead Arrangers and JointBookrunners, in such capacities, shall not
have any right, power, obligation, liability, responsibility, orduty under this Agreement other than those applicable to it in
its capacity as a Lender, as Agent, asSwingline Lender, or as Issuer. Without limiting the foregoing, each of the Joint Lead
Arrangers andJoint Bookrunners, in such capacities, shall not have or be deemed to have any fiduciary relationshipwith any
Lender or any Loan Party. Each Lender, Agent, Swingline Lender, Issuer, and each Loan Partyacknowledges that it has not relied,
and will not rely, on the Joint Lead Arrangers, Joint Bookrunners, indeciding to enter into this Agreement or in taking
or not taking action hereunder. Each of the Joint LeadArrangers and Joint Bookrunners, in such capacities, shall be entitled
to resign at any time by givingnotice to Agent and Borrower.XV. MISCELLANEOUS.15.1. Governing Law.This Agreement shall be
governed by and construed in accordance with the laws of the State ofNew York applied to contracts to be performed wholly
within the State of New York, without regard toconflicts of law principals except Title 14 of Article 5 of the New York General
Obligations law. Anyjudicial proceeding brought by or against any Loan Party with respect to any of the Obligations, thisAgreement
or any related agreement may be brought in any court of competent jurisdiction in the Countyof New York, State of New
York, United States of America, and, by execution and delivery of thisAgreement, each Loan Party accepts for itself and in
connection with its properties, generally andunconditionally, the non-exclusive jurisdiction of the aforesaid courts, and
irrevocably agrees to bebound by any judgment rendered thereby in connection with this Agreement. Each Loan Party herebywaives
right to personal service of any and all process upon it and consents that all such service ofprocess may be made by registered
mail (return receipt requested) directed to such Loan Party at itsaddress set forth in Section 15.6 and service so made shall
be deemed completed five (5) days after thesame shall have been so deposited in the mails of the United States of America.
Nothing herein shallaffect the right to serve process in any manner permitted by law or shall limit the right of Agent or anyLender
to bring proceedings against any Loan Party in the courts of any other jurisdiction. Each LoanParty waives any objection
to jurisdiction and venue of any action instituted hereunder and shall notassert any defense based on lack of jurisdiction
or venue or based upon forum non conveniens. Anyjudicial proceeding by any Loan Party against Agent or any Lender involving,
directly or indirectly, anymatter or claim in any way arising out of, related to or connected with this Agreement or any
relatedagreement, shall be brought only in a federal or state court located in the County of New York, State ofNew York.110
15.2. Entire Understanding; Amendments.(a) This Agreement and the documents executed concurrently
herewith contain theentire understanding between the Loan Parties, Agent and each Lender and supersedes
all prioragreements and understandings, if any, relating to the subject matter hereof. Any
promises,representations, warranties or guarantees not herein contained and hereinafter made shall have
no forceand effect unless in writing, signed by each Loan Partys, Agents and each Lenders respective
officers.Neither this Agreement nor any portion or provisions hereof may be changed, modified,
amended,waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing,
or in anymanner other than by an agreement in writing, signed by the party to be charged. Each
Loan Partyacknowledges that it has been advised by counsel in connection with the execution of this
Agreement andLoan Documents and is not relying upon oral representations or statements inconsistent
with the termsand provisions of this Agreement.(b) The Required Lenders, Agent with the consent in
writing of the RequiredLenders, and the Loan Parties may, subject to the provisions of this Section
15.2(b), from time to timeenter into written supplemental agreements to this Agreement or the Loan
Documents executed by theLoan Parties, for the purpose of adding or deleting any provisions or
otherwise changing, varying orwaiving in any manner the rights of Lenders, Agent or any Loan Party
thereunder or the conditions,provisions or terms thereof or waiving any Event of Default thereunder,
but only to the extent specifiedin such written agreements; provided, however, that no such supplemental
agreement shall:(A) without the written consent of each Lender affected thereby:(i) increase
the Commitment Percentage or theCommitment of any Lender;(ii) increase the Maximum Revolving Advance
Amount(except, for the avoidance of doubt, for any increase to the Maximum RevolvingAdvance
Amount resulting from, and in accordance with, the provisions of Section 2.4);(iii) extend the
maturity of any Note or the due date for anyamount payable hereunder, or decrease the rate of interest
or reduce any scheduledprincipal payment, fee or any other amount payable by any Loan Party to
Lenderspursuant to this Agreement (it being understood that a waiver of any Default, Event ofDefault or
mandatory prepayment shall not constitute a reduction of the rate of interest orreduction of any
principal payment, fee or other amount payable by any Loan Party);(iv) alter the definition of the
term Required Lenders oralter, amend or modify or waive any provision of this Section 15.2(b),
including, withoutlimitation, eliminating or reducing the voting rights of the Lenders under thisSection
15.2(b);(v) other than in connection with a merger, liquidation,dissolution or sale of such Person
expressly permitted by the terms hereof or the otherLoan Documents, release any Borrower from any
obligation for the payment of money orconsent to the assignment or transfer by any Borrower or
any Guarantor of any of itsrights or duties under this Agreement or the other Loan Documents;111
(vi) release all or substantially all of the Collateral or releaseall or substantially all of the Guarantors
from their obligations under the applicableGuaranty executed by such Guarantor;(vii) amend, modify or waive
the pro rata requirements ofSection 2.13 or Section 11.2 or any other provision of the Loan Documents
requiring prorata treatment of the Lenders; or(viii) [reserved]; or(B) without the consent of Agent, alter,
amend, modify or waive therights or duties of Agent;(C) without the consent of the Issuer, alter, amend,
modify or waivethe rights or duties of such Issuer; and(D) without the consent of Swingline Lender, alter,
amend, modifyor waive the rights or duties of the Swingline Lender or increase the Maximum Swingline Loan
Amount.Any such supplemental agreement shall apply equally to each Lender and shall be binding upon eachLoan
Party, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, theLoan Parties,
Agent and Lenders shall be restored to their former positions and rights, and any Event ofDefault waived
shall be deemed to be cured and not continuing, but no waiver of a specific Event ofDefault shall extend
to any subsequent Event of Default (whether or not the subsequent Event of Defaultis the same as the Event
of Default which was waived), or impair any right consequent thereon.(c) In the event a Lender is a Non-Consenting
Lender, then Borrower may, at itsoption, require such Lender to assign its Commitment Percentage of
the Advances to HSBC (withHSBCs consent) or to another Lender (with such Lenders consent) or to any other
Person that shallassume such obligations (the Designated Lender), for a price equal to the then outstanding
principalamount thereof plus accrued and unpaid interest and fees and all other Obligations due such Lenderunder
this Agreement and the other Loan Documents, which interest and fees shall be paid in full at thetime of
such assignment. In the event Borrower elects to require any Lender to assign its interest toHSBC or to the
Designated Lender, Borrower will so notify such Lender in writing within forty five (45)days following such
Lenders denial, and such Lender will assign its interest to HSBC or the DesignatedLender no later than five (5)
days following receipt of such notice pursuant to a Commitment TransferSupplement executed by such Lender,
HSBC or the Designated Lender, as appropriate, and Agent.15.3. Successors and Assigns; Participations; New
Lenders.(a) This Agreement shall be binding upon and inure to the benefit of each LoanParty, Agent, each
Lender, all future holders of the Obligations and their respective successors andpermitted assigns, except
that no Loan Party may assign or transfer any of its rights or obligations underthis Agreement without the
prior written consent of Agent and each Lender.(b) Each Loan Party acknowledges that in the regular course
of commercial bankingbusiness one or more Lenders may at any time and from time to time sell participating
interests in theAdvances to Participants (other than Disqualified Institutions). Each Participant may exercise
all rightsof payment (including without limitation rights of set-off) with respect to the portion of such
Advancesheld by it or other Obligations payable hereunder as fully as if such Participant were a Lender and
thedirect holder of such Advance provided that Borrower shall not be required to pay to any Participant112
more than the amount which it would have been required to pay to Lender which
granted an interest in itsAdvances or other Obligations payable hereunder to
such Participant had such Lender retained suchinterest in the Advances hereunder
or other Obligations payable hereunder and in no event shallBorrower be
required to pay any such amount arising from the same circumstances and with
respect tothe same Advances or other Obligations payable hereunder to both such
Lender and such Participant.For the avoidance of doubt, each Participant shall
not be entitled to the benefits of Section 3.10 unlesssuch Participant complies
with Section 3.10(g) as if it were a Lender. Each Loan Party hereby grant toany
Participant a continuing security interest in any deposits, moneys or other
property actually orconstructively held by such Participant as security for the
Participants interest in the Advances. EachLender shall retain the sole right
to approve, without the consent of the Participant, any amendment,modification
or waiver of any provision of this Agreement and the other Loan Documents
other than anyamendment, modification or waiver of the type specified in clause
(i), (iv) or (vi) of Section 15.2(b) as itrelates to Participants interest
in the Obligations. Each Lender that sells participations to a Participant,acting
solely for this purpose as a non-fiduciary agent of Borrower, shall maintain
a register on which itenters the name and address of each Participant and
the principal amount of and interest owing withrespect to the participation
sold to each such Participant (the Participant Register); provided that noLender
shall have any obligation to disclose all or any portion of the Participant
Register (including theidentity of any participant or any information relating
to a participants interest in any commitments,loans, letters of credit or
its other obligations under any Loan Document) to any Person except to theextent
that such disclosure is necessary to establish that such commitment, loan,
letter of credit or otherobligation is in registered form under Section
5f.103-1(c)of the U.S. Treasury Regulations. The entriesin the Participant Register
shall be conclusive (absent manifest error), and Borrower and the Lendersshall
treat each Person whose name is recorded in such Participant Register pursuant
to the terms hereofas a participant for all purposes of this Agreement,
notwithstanding notice to the contrary. For theavoidance of doubt, the Agent
(in its capacity as such) shall have no responsibility for maintaining
aParticipant Register.(c) Any Lender may, with the consent of Agent and Borrower,
which consent shallnot be unreasonably withheld or delayed, sell, assign or
transfer all or any part of its rights under thisAgreement and the other Loan
Documents to another Lender or to one or more additional banks orfinancial
institutions (other than Disqualified Institutions) and one or more additional
banks or financialinstitutions may commit to make Advances hereunder (each a
Purchasing Lender), in minimumamounts of not less than $5,000,000 and integral
multiples of $1,000,000 in excess thereof, pursuant to aCommitment Transfer
Supplement, executed by a Purchasing Lender, the transferor Lender, and Agentand
delivered to Agent for recording; provided that no assignment shall be made
to (i) a Loan Party orany of a Loan Partys Affiliates or Subsidiaries or (ii)
any Defaulting Lender or any of its Subsidiaries, orany Person who, upon becoming
a Lender hereunder, would constitute any of the foregoing Personsdescribed
in this clause (ii) (provided that Borrower shall be deemed to have consented
to any suchassignment unless it shall have objected thereto by written notice
to the Agent within 10 Business Daysafter having received notice thereof). The
consent of Agent and Borrower shall not be required in thecase of an assignment
by a Lender to another Lender or to an Affiliate of a Lender or an Approved
Fund(each, an Eligible Assignee), and the consent of Borrower shall not be
required at any time that anEvent of Default under Sections 10.1, 10.7, or
10.8 has occurred and is continuing hereunder. Upon suchexecution, delivery,
acceptance and recording, from and after the transfer effective date determinedpursuant
to such Commitment Transfer Supplement, (i) Purchasing Lender thereunder
shall be a partyhereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights andobligations of a Lender thereunder with a
Commitment Percentage as set forth therein (including, for theavoidance of
doubt, such obligations under Section 3.10(g)), and (ii) the transferor Lender
thereundershall, to the extent provided in such Commitment Transfer Supplement,
be released from its obligationsunder this Agreement, the Commitment Transfer
Supplement creating a novation for that purpose. SuchCommitment Transfer
Supplement shall be deemed to amend this Agreement to the extent, and only to113
the extent, necessary to reflect the addition of such Purchasing Lender
and the resulting adjustment of theCommitment Percentages arising
from the purchase by such Purchasing Lender of all or a portion of
therights and obligations of such transferor Lender under this Agreement
and the other Loan Documents.Each Loan Party hereby consents to the
addition of such Purchasing Lender and the resulting adjustmentof
the Commitment Percentages arising from the purchase by such Purchasing
Lender of all or a portionof the rights and obligations of such
transferor Lender under this Agreement and the other LoanDocuments.
Each Loan Party shall execute and deliver such further documents and do
such further actsand things in order to effectuate the foregoing.(d)
Agent, acting solely for this purpose as an agent of Borrower, shall
maintain atits address an electronic or written record (the Register)
in which it will record (i) the names andaddresses of the Lenders
(including Purchasing Lenders) and (ii) the amount of each Advance
andamounts owing to each Lender from time to time and (iii) all amounts
received by Agent hereunder fromBorrower and each Lenders share thereof.
Agent will also maintain at its address a copy of eachCommitment
Transfer Supplement delivered to it, and no Commitment Transfer
Supplement will beeffective until it is recorded in the Register. The
entries in the Register shall be conclusive, in theabsence of manifest
error, and Borrower, Agent and Lenders may treat each Person whose
name isrecorded in the Register as the owner of the Advance recorded
therein for the purposes of thisAgreement. The Register shall be
available for inspection by Borrower or any Lender at any reasonabletime
and from time to time upon reasonable prior notice. Agent shall
receive a fee in the amount of$3,500 (which may be waived or reduced at
the sole discretion of the Agent) payable by the applicablePurchasing
Lender upon the effective date of each transfer or assignment to
such Purchasing Lenderexcept in connection with any assignments by a
Lender to an Affiliate of such Lender or to anotherLender. If either
the assigning Lender or the Purchasing Lender shall have failed to
make any paymentrequired to be made by it pursuant to this Agreement,
Agent shall have no obligation to accept suchassignment and record
the information therein in the Register unless and until such payment
shall havebeen made in full, together with all accrued interest
thereon. No assignment shall be effective forpurposes of this Agreement
unless it has been recorded in the Register as provided in this
paragraph.(e) Each Loan Party authorizes each Lender to disclose to any
Participant orPurchasing Lender and any prospective Participant or
Purchasing Lender any and all financialinformation in such Lenders
possession concerning such Loan Party which has been delivered to suchLender
by or on behalf of such Loan Party pursuant to this Agreement or in
connection with suchLenders credit evaluation of such Loan Party
so long as such Participant, Purchasing Lender orprospective Participant
or Purchasing Lender agrees to abide by the provisions of Section
15.15.(f) Any other provision in this Agreement notwithstanding, any
Lender may at anytime create a security interest in, or pledge, all
or any portion of its rights under and interest in thisAgreement to
secure obligations of such Lender, including any pledge in favor of
any Federal ReserveBank in accordance with Regulation A of the Federal
Reserve Bank or U.S. Treasury Regulation 31 CFR203.24, and such
Federal Reserve Bank may enforce such pledge or security interest
in any mannerpermitted under applicable law; provided, that no such
pledge shall release such Lender from any of itsobligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.15.4. Application of Payments.Agent shall have the continuing
and exclusive right to apply or reverse and re-apply any paymentand
any and all proceeds of Collateral to any portion of the Obligations.
To the extent that any LoanParty makes a payment or Agent or any
Lender receives any payment or proceeds of the Collateral forsuch Loan
Partys benefit, which are subsequently invalidated, declared to be
fraudulent or preferential,set aside or required to be repaid to a
trustee, debtor in possession, receiver, custodian or any other party114
under any bankruptcy law, common law or equitable cause, then,
to such extent, the Obligations or partthereof intended to be
satisfied shall be revived (as to each Lender based upon its
CommitmentPercentage of any such Obligations) and continue as if such
payment or proceeds had not been receivedby Agent or such Lender.15.5.
Indemnity; Funding Losses.(a) Each Loan Party shall indemnify
Agent, the Issuer, each Lender and each of theirrespective
officers, directors, Affiliates, advisors, employees, partners,
trustees, administrators,managers, counsel, representatives, advisors
and agents (each such Person being called an Indemnitee)from
and against, and hold each Indemnitee harmless from, any and all
liabilities, obligations, claims,losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of
any kind ornature whatsoever (including, without limitation,
reasonable fees and disbursements of counsel) whichmay be
imposed on, incurred by, or asserted against Agent, such Issuer
or any Lender by any Person(including Borrower or any Guarantor)
in connection with, or as a result of (i) the execution or
deliveryof this Agreement or any other Loan Documents contemplated
thereby, (ii) the performance by anIndemnitee of its respective
obligations under this Agreement and other Loan Documents;
(iii)consummation of the transactions contemplated thereby; (iv)
environmental claims and liabilities; or (v)any actual or
prospective claim, litigation, investigation or proceeding relating
to any of the foregoing,whether based on contract, tort or any
other theory, whether brought by a third party or by Borrower
orany Guarantor, and regardless of whether any Indemnitee is a
party thereto, subject to the condition thatclaims or losses on
which indemnification is sought by Indemnitee not arise by such
Indemnitees ownwillful misconduct, bad faith, or gross negligence
as determined by final, non-appealable judgment of acourt of
competent jurisdiction.(b) In the event that (i) any payment
of a SOFR Loan is required, made or permittedon a date other
than the last day of the then current Interest Period applicable
thereto (including upondemand by a Lender), (ii) the conversion
of any SOFR Loan other than on the last day of the InterestPeriod
applicable thereto, or (iii) the failure to convert, continue,
borrow or prepay any SOFR Loan onthe date specified in any notice
delivered pursuant hereto, then, in any such event, the Borrower
shallcompensate each Lender for any loss, cost and expense
attributable to such event, including any loss, costor expense
arising from the liquidation or redeployment of funds. A
certificate of a Lender delivered tothe Borrower and setting forth
any amount or amounts that any Lender is entitled to receive
pursuant tothis paragraph shall be conclusive absent manifest
error. The Borrower shall pay any Lender the amountshown as due on
any such certificate upon demand.(c) In connection with the
issuance of any Letter of Credit, each Loan Party shallindemnify,
save and hold Agent, each Lender and the Issuer harmless from any
loss, cost, expense orliability, including, without limitation,
any claims, damages, costs and expenses, and other paymentsmade
by Agent, any Lender or the Issuer and expenses and reasonable
attorneys fees (limited to oneoutside counsel for the Agent,
Issuer and Lenders and, if reasonably necessary, a single local
counsel ineach jurisdiction for which local counsel is reasonably
deemed necessary) incurred by Agent, any Lenderor the Issuer
arising out of, or in connection with, any Letter of Credit to be
issued or created forBorrower.15.6. Notice.Any notice or request
hereunder may be given to any Loan Party or to Agent or any
Lender attheir respective addresses set forth below or at such
other address as may hereafter be specified in anotice designated
as a notice of change of address under this Section 15.6. Any
notice or requesthereunder shall be given by (a) hand delivery,
(b) overnight courier, (c) registered or certified mail,115
return receipt requested, or (d) telecopy to the number set out below (or such other number as mayhereafter
be specified in a notice designated as a notice of change of address) with electronicconfirmation of its
receipt. Any notice or other communication required or permitted pursuant to thisAgreement shall be deemed
given (a) when personally delivered to any officer of the party to whom it isaddressed, (b) on the earlier
of actual receipt thereof or three (3) days following posting thereof bycertified or registered mail, postage
prepaid, or (c) upon actual receipt thereof when sent by a recognizedovernight delivery service or (d)
upon actual receipt thereof when sent by telecopier to the number setforth below with electronic confirmation
of its receipt, in each case addressed to each party at its addressset forth below or at such other
address as has been furnished in writing by a party to the other by likenotice:(A) If to Agent or HSBC:with
copies to:HSBC Bank USA, N.A., as Agent452 Fifth AvenueNew York, NY, 10018Attention: Loan AgencyEmail:
***Morgan, Lewis & Bockius LLP101 Park AvenueNew York, NY 10178Attention: Rick DenhupPhone: ***Email: ***(B) If
to any other Lender, as specified on the signature pages hereof (or, as to CitizensBank, N.A., its signature
page to the Third Amendment).(C) If to any Loan Party:with copies to:Veeco Instruments Inc.1 Terminal
DrivePlainview, NY 11803Attention: John P. KiernanEmail: ***Veeco Instruments Inc.1 Terminal DrivePlainview,
NY 11803Attention: Kirk Mackey; Jodie RoccoEmail: ***with a further copy (which shall not constitute notice)
to:Morrison & Foerster LLP425 Market St.,San Francisco, CA 94105Attention: Dario D. AvramEmail: ***116
15.7. Survival.The obligations of each Loan Party under Sections 2.11, 3.6, 3.8 and 15.5 and of Lenders
underSection 14.7 shall survive termination of this Agreement and the other Loan Documents, the expirationor
termination of the Letters of Credit and all Commitments, the resignation and removal of Agent,
andpayment in full in cash of the Obligations (other than (A) contingent indemnification obligations as
towhich no claim has been asserted and (B) obligations and liabilities under Lender-Provided Hedges andBank
Product Obligations).15.8. Severability.If any part of this Agreement is contrary to, prohibited by,
or deemed invalid under ApplicableLaws or regulations, such provision shall be inapplicable and deemed
omitted to the extent so contrary,prohibited or invalid, but the remainder hereof shall not be invalidated
thereby and shall be given effectso far as possible.15.9. Expenses.All reasonable and documented
out-of-pocket costs and expenses of Agent and Lenders,including, without limitation:(a) reasonable attorneys
fees, charges and disbursements (limited to one outsidecounsel for the Agent and Lenders and, if reasonably
necessary, a single local counsel in eachjurisdiction for which local counsel is reasonably deemed
necessary) incurred by Agent and, with respectto clause (iv) below, the applicable Lenders, and with respect
to clause (vi) below, the applicable Lenderssolely to the extent such Lenders are represented by the
same counsel, and with respect to clause (vii)below, the Issuer, (i) in all efforts made to enforce payment
of any Obligation or effect collection of anyCollateral, or (ii) in connection with the entering into,
modification, amendment and administration ofthis Agreement or any consents or waivers hereunder and all
related agreements, documents andinstruments (whether or not the transactions contemplated hereby or thereby
are consummated), or (iii) ininstituting, maintaining, preserving, enforcing and foreclosing on Agents
security interest in or Lien onany of the Collateral, whether through judicial proceedings or otherwise,
or (iv) in defending orprosecuting any actions or proceedings arising out of or relating to Agents or
any Lenders transactionswith the Loan Parties, or (v) in connection with any advice given to Agent with
respect to its rights andobligations under this Agreement and all related agreements, (vi) in connection
with the enforcement ofthis Agreement or any consent or waivers hereunder and all related agreements,
documents andinstruments or (vii) in connection with the issuance, amendment or extension of any Letter of
Credit orany demand for payment thereunder, in each case, whether before or after a Default or Event of
Defaulthas occurred under any of the Loan Documents, relating to a workout, restructuring, or other
negotiationswith the Loan Parties in respect of such rights, obligations and transactions arising under the
LoanDocuments; and(b) reasonable fees and disbursements incurred by Agent or Agent on behalf ofLenders in
connection with any appraisals of Inventory or other Collateral, field examinations, collateralanalysis
or monitoring or other business analysis conducted by outside Persons in connection with thisAgreement
and all related agreements;may be charged to Borrowers Account and shall be part of the Obligations.117
15.10. Injunctive Relief.Each Loan Party recognizes that, in the event such Loan Party fails to
perform, observe ordischarge any of its obligations or liabilities under this Agreement, any remedy
at law may prove to beinadequate relief to Lenders; therefore, Agent, if Agent so requests, shall
be entitled to temporary andpermanent injunctive relief in any such case without the necessity
of proving that actual damages are notan adequate remedy.15.11. Consequential Damages.TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF AGENT,THE ISSUER, ANY LENDER, NOR ANY AGENT OR
ATTORNEY FOR ANY OF THEM, SHALLBE LIABLE TO ANY LOAN PARTY FOR INDIRECT, PUNITIVE, EXEMPLARY,
INCIDENTAL,SPECIAL OR CONSEQUENTIAL DAMAGES (AS OPPOSED TO DIRECT OR ACTUALDAMAGES) ARISING OUT
OF, IN CONNECTION WITH, OR AS A RESULT OF, THISAGREEMENT, ANY OTHER LOAN DOCUMENT OR THE USE OF
PROCEEDS THEREOF ANDFROM ANY BREACH OF CONTRACT, TORT OR OTHER WRONG RELATING TO THEESTABLISHMENT,
ADMINISTRATION OR COLLECTION OF THE OBLIGATIONS.15.12. Captions.The captions at various places
in this Agreement are intended for convenience only and do notconstitute and shall not be
interpreted as part of this Agreement.15.13. Counterparts; Telecopied Signatures.This Agreement
and each of the Loan Documents may be executed in counterparts (and bydifferent parties hereto in
different counterparts), each of which shall constitute an original, but all ofwhich when taken
together shall constitute a single contract. This Agreement, the Loan Documents, andany separate
letter agreements with respect to fees payable to Agent or the Issuer, constitute the
entirecontract among the parties relating to the subject matter hereof and supersede any and all
previousagreements and understandings, oral or written, relating to the subject matter hereof. Except
as providedin Section 8.1, this Agreement shall become effective when it shall have been executed
by Agent andwhen Agent shall have received counterparts hereof that, when taken together, bear the
signatures of eachof the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement orany other Loan Document, or any certificate delivered thereunder, by
fax transmission or e-mailtransmission (e.g. pdf or tif) shall be effective as delivery of a
manually executed counterpart of thisAgreement. or such Loan Document or certificate. Without
limiting the foregoing, to the extent amanually executed counterpart is not specifically required to
be delivered under the terms of thisAgreement or any other Loan Document, upon the request of any
party, such fax transmission or e-mailtransmission shall be promptly followed by such manually
executed counterpart.15.14. Construction.The parties acknowledge that each party and its counsel
have participated in the preparation ofthis Agreement and that the normal rule of construction
to the effect that any ambiguities are to beresolved against the drafting party shall not be
employed in the interpretation of this Agreement or anyamendments, schedules or exhibits thereto.118
15.15. Confidentiality.Each of Agent, the Lenders and the Issuer
agree to maintain the confidentiality of theInformation (as
defined below), except that Information may be disclosed (a) to
its Affiliates and to itsRelated Parties (it being understood
that the Persons to whom such disclosure is made will be informedof
the confidential nature of such Information and instructed
to keep such Information confidential);(b) to the extent required
or requested by any regulatory authority purporting to have
jurisdiction oversuch Person or its Related Parties (including
any self-regulatory authority, such as the NationalAssociation
of Insurance Commissioners); (c) to the extent required by
Applicable Laws or regulationsor by any subpoena or similar legal
process; (d) to any other party hereto; (e) in connection with
theexercise of any remedies hereunder or under any Loan Document
or any action or proceeding relating tothis Agreement or any
other Loan Document or the enforcement of rights hereunder
or thereunder;(f) subject to an agreement containing provisions
substantially the same as those of this Section, to(i) any
assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights andobligations under this
Agreement, or (ii) any actual or prospective party (or its Related
Parties) to anyswap, derivative or other transaction under
which payments are to be made by reference to Borrower andits
obligations, this Agreement or payments hereunder; (g) on a
confidential basis to (i) any rating agencyin connection with rating
Borrower or its Subsidiaries or the credit facilities hereunder
or (ii) the CUSIPService Bureau or any similar agency in
connection with the issuance and monitoring of CUSIP numberswith
respect to the credit facilities hereunder; (h) with the
consent of Borrower; or (i) to the extent suchInformation (x)
becomes publicly available other than as a result of a breach
of this Section, or(y) becomes available to Agent, any Lender,
the Issuer or any of their respective Affiliates on anon-confidential
basis from a source other than Borrower. In addition,
Agent and the Lenders maydisclose the existence of this
Agreement and information about this Agreement to market data
collectors,similar service providers to the lending industry and
service providers to Agent and the Lenders inconnection with the
administration of this Agreement, the Loan Documents, and the
Commitments.For purposes of this Section, Information means all
information received from Borrower or anyof its Subsidiaries
relating to Borrower or any of its Subsidiaries or any of their
respective businesses,other than any such information that is available
to Agent, any Lender or the Issuer on a nonconfidentialbasis
prior to disclosure by Borrower or any of its Subsidiaries;
provided that, in the case of informationreceived from Borrower
or any of its Subsidiaries after the date hereof, such
information is clearlyidentified at the time of delivery as
confidential. Any Person required to maintain the confidentiality
ofInformation as provided in this Section shall be considered
to have complied with its obligation to do soif such Person has
exercised the same degree of care to maintain the confidentiality
of such Informationas such Person would accord to its own
confidential information.15.16. Publicity.Each Loan Party hereby
authorizes Agent, upon prior notice, to make appropriate
announcementsof the financial arrangement entered into among
the Loan Parties, Agent and Lenders, including, withoutlimitation,
announcements which are commonly known as tombstones, in
such publications and to suchselected parties as Agent shall in
its sole and absolute discretion deem appropriate. In addition,
eachLoan Party upon prior notice authorizes Agent to include
such Loan Partys name and logo in selecttransaction profiles and
client testimonials prepared by Agent for use in publications,
company brochuresand other marketing materials of Agent.119
15.17. Electronic Execution of Assignments and Certain Loan
Documents. The wordsdelivery, execute, execution, signed, signature,
and words of like import in this Agreement orany other Loan Document
or any other document executed in connection herewith shall
be deemed toinclude electronic signatures, the electronic matching
of assignment terms and contract formations onelectronic platforms
approved by Agent, or the keeping of records in electronic form,
each of which shallbe of the same legal effect, validity or
enforceability as a manually executed signature, physical deliverythereof
or the use of a paper-based recordkeeping system, as the
case may be, to the extent and asprovided for in any Applicable
Law, including the Federal Electronic Signatures in Global and
NationalCommerce Act, the New York State Electronic Signatures and
Records Act, or any other similar statelaws based on the Uniform
Electronic Transactions Act; provided that notwithstanding anythingcontained
herein to the contrary neither Agent or the Issuer nor any
Lender is under any obligation toagree to accept electronic
signatures in any form or in any format unless expressly agreed to by
Agent,such Issuer or such Lender pursuant to procedures approved
by it and provided further without limitingthe foregoing, upon the
request of any party, any electronic signature shall be promptly
followed by suchmanually executed counterpart.15.18. Confirmation
of Flood Policies and Procedures. HSBC has adopted internal policies
andprocedures that address requirements placed on federally
regulated lenders under the National FloodInsurance Reform Act
of 1994 and related legislation (the Flood Laws). HSBC, as
administrativeagent or collateral agent on a syndicated facility, will
post on the applicable electronic platform (orotherwise distribute
to each lender in the syndicate) documents that it receives in
connection with theFlood Laws. However, HSBC reminds each Lender,
Participant and Purchasing Lender in connectionwith the facility
that, pursuant to the Flood Laws, each federally regulated Lender
(whether acting as aLender or Purchasing Lender in the facility) is
responsible for assuring its own compliance with the floodinsurance
requirements.15.19. Patriot Act Notice.Each Lender and Agent (for
itself and not on behalf of any Lender) hereby notifies each
LoanParty that pursuant to the requirements of the USA PATRIOT Act,
it is required to obtain, verify andrecord, and Borrower shall
provide, information that identifies each Loan Party, which
informationincludes the names and addresses of each Loan Party and
other information that will allow such Lenderor Agent, as applicable,
to identify each Loan Party in accordance with the USA PATRIOT
Act and otherapplicable know your customer and anti-money laundering
rules and regulations under ApplicableLaw.15.20. Acknowledgement
Regarding Any Supported QFCs.To the extent that any of this
Agreement or the Loan Documents provide support, through aguarantee
or otherwise, for Hedging 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 acknowledgeand agree as
follows with respect to the resolution power of the Federal Deposit
Insurance Corporationunder the Federal Deposit Insurance Act and
Title II of the Dodd-Frank Wall Street Reform andConsumer Protection
Act (together with the regulations promulgated thereunder, the U.S.
SpecialResolution Regimes) in respect of such Supported QFC and
QFC Credit Support (with the provisionsbelow applicable notwithstanding
that this Agreement, the Loan Documents and any Supported
QFC mayin fact be stated to be governed by the laws of the State
of New York and/or of the United States or anyother state of the
United States): In the event a Covered Entity that is party to a
Supported QFC (each, aCovered Party) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transferof such
Supported QFC and the benefit of such QFC Credit Support (and any
interest and obligation in orunder such Supported QFC and such
QFC Credit Support, and any rights in property securing such120
Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the sameextent as the
transfer would be effective under the U.S. Special Resolution Regime if the Supported QFCand such QFC Credit
Support (and any such interest, obligation and rights in property) were governed bythe laws of the United States
or a state of the United States. In the event a Covered Party or a BHC ActAffiliate of a Covered Party becomes
subject to a proceeding under a U.S. Special Resolution Regime,Default Rights under this Agreement and the other
Loan Documents that might otherwise apply to suchSupported QFC or any QFC Credit Support that may be exercised
against such Covered Party arepermitted 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 this Agreement and the other Loan
Documentswere governed by the laws of the United States or a state of the United States. Without limitation of
theforegoing, it is understood and agreed that rights and remedies of the parties with respect to a DefaultingLender
shall in no event affect the rights of any Covered Party with respect to a Supported QFC or anyQFC Credit
Support.15.21. Acknowledgement and Consent to Bail-In of Affected Financial Institutions.Notwithstanding
anything to the contrary in any Loan Document or in any other agreement, arrangementor understanding among any
such parties, each party hereto acknowledges that any liability of anyAffected 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 andagrees and consents to, and acknowledges and agrees to be
bound by:(a) the application of any Write-Down and Conversion Powers by the applicableResolution Authority to any
such liabilities arising hereunder which may be payable to it by any partyhereto 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 otherinstruments of ownership in such Affected Financial Institution, its parent
undertaking, or a bridgeinstitution that may be issued to it or otherwise conferred on it, and that such shares
or other instrumentsof ownership will be accepted by it in lieu of any rights with respect to any such liability
under thisAgreement or any other Loan Document; or(iii) the variation of the terms of such liability in
connection with theexercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.15.22.
Currency Conversion.If any payment by Borrower or the proceeds of any Collateral shall be made in a currency
otherthan Dollars, such amount shall be converted into Dollars at the rate determined by Agent or Issuer,
asapplicable, as the rate quoted by it in accordance with methods customarily used by such Person for suchor similar
purposes as the spot rate for the purchase by such Person of Dollars with the currency of actualpayment through
its principal foreign exchange trading office (including, in the case of Agent, anyAffiliate), provided that
Agent or Issuer, as applicable, may obtain such spot rate from another financialinstitution actively engaged
in foreign currency exchange if Agent or Issuer, as applicable, does not thenhave a spot rate for Dollars.121
15.23. Lender Representations.Each Lender and Issuer represents that it is
engaged in making, acquiring or holding commercialloans in the ordinary
course of its business and that it has, independently and without reliance
uponAgent or any sub-agents, or any of their officers, directors,
employees, agents, advisors, attorneys-in-factor affiliates thereof (collectively
the Agent Parties), and based on such documents and information(which
may contain material, non-public information within the meaning of the
United States securitieslaws concerning Borrower and its Affiliates)
as it has deemed appropriate, made its own credit analysisand decision
to enter into this Agreement. Each Lender and Issuer also acknowledges
that it will,independently and without reliance upon Agent or any other
Lender or any of their Related Parties andbased on such documents and
information as it shall from time to time deem appropriate, continue tomake
its own decisions in taking or not taking action under or based upon
this Agreement, any otherLoan Document or any related agreement or any
document furnished hereunder or thereunder.[SIGNATURE PAGES FOLLOW]122
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
dulyexecuted by their respective Authorized Officers as of the day and
year first above written.VEECO INSTRUMENTS INC., as
BorrowerBy:_______________________________Name:Title:VEECO PROCESS EQUIPMENT INC., as a
GuarantorBy:_______________________________Name:Title:VEECO APAC LLC,
as a GuarantorBy:_______________________________Name:Title:HSBC BANK
USA, NATIONAL ASSOCIATION asAgent, Issuer and as a
LenderBy:_______________________________Name:Signature page to Loan and Security Agreement
Title:[OTHER LENDERS]By:_______________________________Name:Title:Signature page to Loan and Security Agreement
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}